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Warrantless surveillance law may face test in criminal case

Justice Department plans to use information gathered under the Foreign Intelligence Surveillance Act in prosecution of an accused terrorist.

Daniel Terdiman/CNET

Federal prosecutors intend to use information gathered through the government's warrantless surveillance program in a criminal trial, setting up a possible court test of the constitutionality of such eavesdropping.

The Justice Department filed notice (PDF) late Friday that it plans to use "information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act" against an accused terrorist. Jamshid Muhtorov was charged in 2012 with providing material support to the Islamic Jihad Union, a designated foreign terrorist organization.

The filing will allow Muhtorov's lawyers to file a motion to suppress the evidence and sets the stage for a potential challenge to the 1978 law, which was amended in 2008 to give the US government authority to perform bulk surveillance on the international communications of US citizens.

"It's the first time since 2008 when the act was signed into law that the government has acknowledged the use of surveillance derived from the law in a criminal prosecution," Jameel Jaffer, deputy legal director of the American Civil Liberties Union, told the Washington Post. The filing is a "big deal" that "will undoubtedly set up a constitutional challenge to it."

Jaffer argued a lawsuit before the US Supreme Court last year that was brought by human rights advocates and journalists who believed their electronic communications sent abroad would be intercepted. The lawsuit contended that a National Security Agency surveillance program violates privacy rights protected by the Fourth Amendment.

However, in a narrow 5-4 decision issued in February, the high court rejected the lawsuit, finding that the plaintiffs did not have proper legal standing because they could not prove they had actually been harmed or were about to be harmed. Justice Samuel Alito Jr., who wrote the majority opinion, found the challenge "too speculative" to proceed based on fears of "hypothetical future harm."

"It is speculative whether the Government will imminently target communications to which respondents are parties," he wrote. "We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors."

However, in language that echoed comments made before the court by Solicitor General Donald Verrilli, Alito suggested in the ruling that there was a way to challenge the law.

"If the government intends to use or disclose information obtained or derived from [such surveillance] in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition," Alito wrote.

Muhtorov, a refugee from Uzbekistan who lives in Aurora, Colo., was arrested last year on suspicion of trying to participate in a terrorist attack after the FBI obtained e-mail from his accounts allegedly sent to the terrorist organization.