As Orin Kerr has already noted on this site, the Department of Justice policy offers very little “notice” to criminal defendants of the surveillance techniques used to obtain evidence. The defendants in United States v. Muhtorov, charged with providing material support to foreign terrorist organizations, filed a motion Monday asking the District Court for the District of Colorado to compel the government to disclose the specific techniques used to obtain the evidence against them.
In essence, the defendants argue that the lack of notice of the specific techniques precludes them from arguing for suppression of evidence as “fruit of the poisonous tree,” thus violating their due process rights. The motion speculates---and that’s all it can do, absent notice---that the government relied in its investigation on surveillance under E.O. 12,333, the domestic call records program challenged in Klayman v. Obama, the internet metadata reportedly discontinued in 2011, and other secret intelligence collection programs. Instead of providing notice of these techniques, the motion alleges, the government engaged in “evidence laundering” and parallel construction to obscure the original, potentially illegal, sources of evidence.
The motion notes that the government apparently does not believe it is required to disclose its techniques, perhaps on the basis that collection of metadata does not constitute a search. But, defendants argue, the government “cannot preempt the right to seek suppression by withholding notice based on its own conclusion that its methods are lawful.”
The defendants also attack the government’s keeping secret its interpretation of when evidence is “derived from” such surveillance. If the government’s definition of “derived from” is impermissibly narrow, then it can withhold notice on its own judgment and prevent the defendants, and the court, from ever testing both the underlying surveillance techniques and the determination that evidence was not in fact “derived from” those techniques. The motion further argues that the government cannot hide behind the veil of national security to avoid notice. The defendants point to United States v. U.S. Dist. Court (Keith), where the Supreme Court ordered disclosure of the wiretap records even though the government had threatened to abandon the prosecution if the Court ordered the disclosure. Finally, defendants assert a broad statutory right to notice of surveillance techniques under 18 U.S.C. § 3504, and a specific right to notice of the use of the internet-metadata program under FISA.