Feds Wait Until Late Friday To Release Details Of Criminal Case That Used NSA Surveillance, Which They'd Kept Secret

from the friday-night:-where-news-goes-to-die dept

Back in July, the NY Times made it pretty clear that United States Solicitor General Donald Verrilli almost certainly lied to the Supreme Court, concerning how evidence obtained via NSA surveillance techniques would end up in court. As you may recall, the lawsuit in question involved the ACLU, with the government arguing that the ACLU had no standing. The Supreme Court asked a basic question about whether or not anyone could possibly have standing then to challenge the law -- and Verrilli insisted (and the justices relied on) the claim that if the feds used data collected under these questionable surveillance statutes, that the defense team would be told about this, and they could challenge the constitutionality of the collection. Except... no defendant had ever been told any such thing. And then someone noticed that Senator Dianne Feinstein, in defending the NSA surveillance, had insisted that it was key in a bunch of cases -- meaning one of them was lying. This, apparently, got Verrilli quite upset at the various national security lawyers who had looked over his defense and who apparently chose not to tell him that what he was saying about the government telling defendants stuff wasn't, in fact, true. As was reported a few weeks ago, Verrilli then led a fierce debate within the administration, and said that a policy change was necessary. And, to kick it off, they were searching for a single case in which they would reveal such info was used.

Of course, this allowed the feds to cherry pick their case... and the date and time to release the "news." So, of course they chose Friday night, which is when the government always tries to release bad news. So we're taking that news and discussing it the following Monday, because this is big and it deserves serious attention. Late Friday, the government admitted that it had used information gleaned via programs under the FISA Amendments Act in the criminal case against Jamshid Muhtorov, who was charged in January 2012 with "providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan." Much of the original complaint against Muhtorov involves discussions about intercepted calls and emails, though it's unclear how many (if any) of those were done under the FAA or other law enforcement authorities.

The new notice in the case doesn't reveal very much at all, other than that the government intends to "offer into evidence or otherwise use or disclose in proceedings... information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the" FAA. Basically, this case now is very likely to become the key case in testing the constitutionality of at least some aspects of the FISA Amendments Act surveillance efforts (which include the "upstream" tapping of the internet backbone via telcos, though it's not clear if that was used in this particular case).

In other words, this case just got a lot more interesting -- though it's clear that the feds tried very carefully to pick a case where the facts work strongly in their favor. I would imagine, however, that various public interest and civil liberties groups are gearing up to see how they might help out in the case.


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  1.  
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    Ninja (profile), Oct 28th, 2013 @ 8:40am

    Well, they need to rise the number of foiled terroristic attacks from zero and this surely is a good starting point. They are underestimating the ACLU and others though. If they went on to defend the KKK in order to defend free speech rights I don't think they'll have a problem here too. And people are being less and less fooled by the "Terrorism!" punchline.

     

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  2.  
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    Spike, Oct 28th, 2013 @ 8:45am

    This stuff has Kim Dotcom! saga all over it, just not long over a year ago everyone thought he was a tinfoil hat elitist.

     

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  3.  
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    Anonymous Coward, Oct 28th, 2013 @ 8:51am

    Cherry picking...

    Sure they get to cherry pick the first case but that doesn't mean that other cases where it is applicable won't also be used to challenge it.

     

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  4.  
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    Drew, Oct 28th, 2013 @ 8:59am

    I'm going through more tinfoil than a meth addict.

    Yeah.. It's real bad. :(

     

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  5.  
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    Shawn (profile), Oct 28th, 2013 @ 9:07am

    Re: Cherry picking...

    Problem is the only cases we will likely learn about (from the government) will be cherry picked.

     

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  6.  
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    Prokofy Neva (profile), Oct 28th, 2013 @ 9:22am

    Muhtorov Properly Arrested

    From the very beginning, since covering this case for more than a year ago, those of us who followed it said it was likely related to FISA intelligence.

    Even so, Muhtorov was properly arrested.

    http://3dblogger.typepad.com/wired_state/2013/10/jamshid-muhtorov-uzbek-suspect-in-terroris m-case-to-be-test-for-fisa-surveillance-intelligence.html?cid=6a00e54fce13cf8834019b006067c4970b

    I don't see that it was "cherry picked," it's just that it was publicized at least among those following Eurasia, it got a lot of attention in Denver, and there was so much speculation about it that it seemed a good choice to start.

    Civil rights lawfarers can gear up all they like. The reality is, human rights work should be distinguished from terrorism and that's what this case is about. Attempts to exonerate Muhtorov's actions put the human rights movement in danger especially in Uzbekistan by blurring these distinctions for the sake of somebody's power struggle in Washington for control over the Internet (and by that I mean EFF, TechDirt and all its pals).

     

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  7.  
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    Anonymous Coward, Oct 28th, 2013 @ 9:28am

    Re: Re: Cherry picking...

    I doubt that. I suspect some of the defense attorneys who lost their case but were not informed will speak up to the press about this while filing motions for their cases to be declared mistrials.

     

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  8.  
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    Brazenly Anonymous, Oct 28th, 2013 @ 9:28am

    Re: Re: Cherry picking...

    Enter the FOIA. File one request in regards to every single case. Point to any unanswered FOIA requests and the fact that the government has a history of hiding this information in motions to suppress any evidence where there is any possibility of the relevance of these programs.

    Gum up the whole criminal justice system and bring it to a halt until the Government starts abiding by the rules.

     

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  9.  
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    silverscarcat (profile), Oct 28th, 2013 @ 9:33am

    Re: Muhtorov Properly Arrested

    Here's the problem...

    Even if everything was done properly and whatnot, the fact is, does anyone trust that the NSA did this within the boundaries of the 4th Amendment?

    The fact that they're so willing to ignore the 4th Amendment's privacy protections means that, even if they went about it legitimately and got a warrant for Muhtorov specifically, it could STILL get thrown out simply because of how the NSA has been behaving lately.

    That's the real issue with the NSA here, is that what they have done puts a LOT of the judicial process in danger of no longer working. After all, with the evidence that the DEA has been getting info from the NSA over drug information, how long until crooks start popping up going "my 4th and 5th Amendment rights were violated" and get their cases thrown out completely?

    Despite how often we see those amendments get violated, the fact is, judges STILL uphold those amendments from time to time.

    So even if Muhtorov is a terrorist and even if he was doing really bad stuff, that's still no excuse for the NSA and the government to shred the constitution.

     

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  10.  
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    Brazenly Anonymous, Oct 28th, 2013 @ 9:37am

    Re: Muhtorov Properly Arrested

    "First they came for the terrorists, and I did not speak up, for I was not a terrorist.

    Then they came for me, and I was called a terrorist and there was no one who would speak up for me."

    "First they came for the terrorists, but I spoke up and forced them to behave honestly in proving that crimes were committed.

    Then they came for me, but there were others to stand up for me and I had committed no crime, so I am still free."

    Our world and our languages are not so rigidly defined that exemptions based on a descriptor can be enforced to any reasonable degree. So you must choose, do terrorists have rights or are our rights nothing more than an illusion to be stripped from us the moment an allegation is brought against us?

     

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  11.  
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    Anonymous Coward, Oct 28th, 2013 @ 9:37am

    Re: Muhtorov Properly Arrested

    It is not a question of whether or not he should have been arrested and tried. The government still has to play by the rules. The ends do not justify the means. If he was unfairly tried with evidence that was gained through unconstitutional means and his defense was not properly informed of the evidence (a violation of the constitutionally guaranteed due process) his trial needs to be declared a mistrial and he needs to be tried again fairly where the government follows the law. It is that simple.

     

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    Overcast (profile), Oct 28th, 2013 @ 9:48am

    Why? What are they hoping to accomplish?

    Catch people breaking the law?

    Look in a mirror.

     

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  13.  
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    Anonymous Coward, Oct 28th, 2013 @ 10:09am

    Re: Muhtorov Properly Arrested

    I'd rather live in a world where i don't get hassled for 2 hours before every flight and passengers stop hi jack attempts than in the current world.

    I'd rather live in a world where people can send money to terrorists only to have the terrorists shut down in the act by citizens in the area. And i'd far rather be one of the 100s that died in a terrorist act than subject MILLIONS of people to 24/7 survelliance.

    No one deserves that kind of power.

    Shame on all of you that would give up everyone elses right to privacy so that you can feel artificially safer.

     

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  14.  
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    saulgoode (profile), Oct 28th, 2013 @ 10:35am

    Maybe Techdirt should start working weekends and use Wednesday and Thursday for Posts of the Week and Insight Comments Reviews.

     

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  15.  
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    Pragmatic, Oct 28th, 2013 @ 10:51am

    Re: Re: Muhtorov Properly Arrested

    One man's terrorist is another man's freedom fighter. Ask Rep. Peter King.

     

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  16.  
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    Anonymous Coward, Oct 28th, 2013 @ 11:36am

    I don't understand how they can charge someone with a crime for executing their first amendment right. SCOTUS has already ruled that money is speech. Does that only apply when it is convenient or is the law applied to everyone equally?

     

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  17.  
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    Anonymous Coward, Oct 28th, 2013 @ 12:19pm

    Re: Re: Muhtorov Properly Arrested

    "Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!"
    -Patrick Henry

     

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  18.  
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    art guerrilla (profile), Oct 28th, 2013 @ 12:21pm

    Re: Re: Re: Cherry picking...

    so what ? ? ?
    the spooks/gummint have their get out of jail free card:
    state security/secrets trumps all ! ! !

    ...and, if *that* don't work:
    motherfuckin' eagles, bitchez ! ! !

    (screeched incoherently and repeatedly until the pesky citizen is lynched by the crowd or goes away...)

     

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  19.  
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    Anonymous Coward, Oct 28th, 2013 @ 1:09pm

    According to the NSA, DOJ, and the Intelligence "oversight" committee in Congress. At least 9 domestic terrorist events were stopped due to mass unconstitutional spying.

    So I expect to hear about evidence for 8 more defendants in the near future.

    8 more chances to challenge the Constitutionality of these massive spying programs.

     

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  20.  
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    Prokofy Neva (profile), Oct 28th, 2013 @ 3:37pm

    Balance is Possible

    @Brazenly Anonymous

    When you lawfare like that with FOIA, they object, and rightly so.

    @silverscarcat No. The whole reason there is a secret court and the notion of warrantless searches under this law is precisely because terrorism *is* an exception. There is no reason to be absolutist about this. Otherwise, we get the Tsarnaevs with their Youtube and bomb-making rights intact, and other people's limbs severed from their bodies. It's okay to have a balance, you know? The NSA hasn't shredded the constitution. They've dealt with terrorists lawfully under an existing exceptional law.

    And duh, I get it that exceptional laws slide and get expanded and are open to abuse. And that's why it's good to have adversarial defense and even adversarial journalism. But OK, then, prove these exceptional procedures were abused then outside the narrow purpose of stopping terrorism. They weren't in this case. This is not "Interneting while Muslim." The US is a target, and jihadists keep coming at it. It's ok to fight them. Leaving them to their "freedom" i.e. licentiousness means taking away other people's freedom.

    The Universal Declaration of Human Rights was designed with a balance clause. Art. 30 says no one right can be used to take away another. So the right to speech or privacy or religion doesn't get to trump someone else's right to those rights or to the very right to life.

    The fact that the DEA has to get info from the NSA and then "reconstruct it" tells us not that the DEA is wrong but that these procedures are wrong. While professional law-enforcers see the need to keep these agencies separate, and there are good reasons to separate functions, in an interconnected world where druglords in Mexico and the US are only a cell phone or email way from easy connection, why do we have to have the gathering of intelligence by these agencies behind such firewalls in this case?

    @Brazenly Anonymous If they came for the terrorists, they did the right thing; terrorists kill people. This isn't about people wildly suspected of terrorism that had nothing to do with it, but people who did very precise things over time, repeatedly, with a very sinister group that kills people. Try to grasp the difference. There are distinctions.

    @Anonymous Coward so far his lawyer has not been able to make any objections stick OR has chosen not to make the objections perhaps hoping for a plea bargain. Ask the lawyer.

    As for wishing to be one of the 100s who die than have millions "lose their privacy," that's whack -- and there isn't any such artificial choice. No one has read your email. And this suspect has been properly pursued. Both are possible.

     

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  21.  
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    John Fenderson (profile), Oct 28th, 2013 @ 4:25pm

    Re: Balance is Possible

    The whole reason there is a secret court and the notion of warrantless searches under this law is precisely because terrorism *is* an exception


    It's only an exception because the government declared it as such. It shouldn't be. It should be treated as conspiracy to commit violent crime, just like any other. Granting it special status only makes it more effective.

    The NSA hasn't shredded the constitution. They've dealt with terrorists lawfully under an existing exceptional law.


    "Shredded" is hyperbolic, but the actions of the NSA have done great damage to the constitution, and are patently unconstitutional by my reading of the constitution.

    I get that their actions are legal, but legal does not automatically mean constitutional (or good, or right).

    And duh, I get it that exceptional laws slide and get expanded and are open to abuse


    And sometimes, such as with NSA spying, the exceptional laws are themselves abusive.


    No one has read your email.


    Under this program. But, let's grant for the sake of argument that nobody is reading anyone's email or listening to anyone's phone calls. I don't see how that matters, really, as the end result of gathering all the metadata is at least as intrusive and revealing as reading emails or listening to phone calls.

     

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  22.  
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    That One Guy (profile), Oct 28th, 2013 @ 11:21pm

    Re: Re: Balance is Possible

    'Under this program. But, let's grant for the sake of argument that nobody is reading anyone's email or listening to anyone's phone calls. I don't see how that matters, really, as the end result of gathering all the metadata is at least as intrusive and revealing as reading emails or listening to phone calls.'

    When you think about it, the 'no one is reading your emails' argument/defense fails in another way, and can actually very easily be turned around against them, because if people's emails/phone calls aren't being looked over/listened to, then why exactly are they being collected in the first place?

    For data to be of any use at all, it must be examined and cataloged, if for no other reason than to determine if it contains data relevant to the investigation at hand, so either they are looking over peoples' communications in their search for terrorists(or cheating spouses, or potential whistleblowers, or company/political secrets, or...), or they aren't looking through peoples' communications, in which case why are they scooping them up?

     

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  23.  
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    Anonymous Coward, Oct 29th, 2013 @ 2:43am

    Re: Balance is Possible

    You sound like a government apologist!

     

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  24.  
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    Bergman (profile), Oct 29th, 2013 @ 6:09am

    Re: Re: Muhtorov Properly Arrested

    If an allegation strips everyone of their rights, let's get some allegations in against the people exploiting that system!

     

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  25.  
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    Brazenly Anonymous, Oct 29th, 2013 @ 8:05am

    Re: Balance is Possible

    Until a terrorist is proven by conviction (and the appeals process has ended) to actually be a terrorist, they retain the full rights of any non-terrorist. Up until that point, the word terrorist is only a descriptor with no legal meaning.

    I disagree that any exception to the Constitution is valid, but even aside from that any exception based on a descriptor established only through accusation would undermine the legitimacy of the Constitution as a binding legal document. If the Constitution is rendered illegitimate than so are all laws established under the powers it grants. In other words, the idea that such an exception is legitimate establishes a logical contradiction.

    The Constitution does provide a legitimate means to establish the legal authority you advocate. However, the means to do so has not been invoked, likely because it was intentionally designed to be a very difficult thing to force. There is currently nothing in the Constitution that cannot be altered through the amendment process.

    When it comes to the law, what you are accused of doesn't matter. If you want it to, you'll need to get an amendment past people like me, who realize that blind justice is a necessary protection against abuse.

     

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  26.  
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    Cloudsplitter, Oct 29th, 2013 @ 10:19am

    Re: Balance is Possible

    In the US bad lawyering is part of the problem, the governmentacted illegally under the rules of evidence, by not disclosing the illegal wiretaping and other illegal actions in the case. The cases evidence is thus tainted as one may not be able to tell what proceeded first, the tainted evidence, or the good evidence, a good appellant lawyer would argue that it is all tainted, and unusable, as evidenced by the governmens corruption of the court process to hide it. That is the case that will be fought in this case and the rest of those dubious terror cases that the government bought, and the so called DEA cases too, what a mighty can of worms they have opened up.

     

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