Tenth Circuit Appeals Court Says Fourth And Sixth Amendment Rights Are Meaningless When National Security Is On The Line

Legal Issues

from the wherein-'more-than-a-half-decade'-means-'speedy' dept

A case involving the first criminal suspect to be notified by the DOJ that evidence against him was derived from Section 702 surveillance has just reached an end. The Tenth Circuit Appeals Court has decided there’s nothing wrong with the government’s FISA-enabled warrantless surveillance programs. It also says the word “speedy” can be redefined at will by the government’s national security concerns, changing the definition to “however long it takes.”

The ACLU, which helped represent the US resident whose communications were collected and intercepted with FISA court orders, summarizes the outcome of this decision:

In a sharply divided ruling, the 10th Circuit Court of Appeals today wrongly held that the warrantless surveillance of Jamshid Muhtorov — a legal permanent resident whose email communications were searched by the U.S. government under Section 702 of the Foreign Intelligence Surveillance Act (FISA) — was lawful. The court also ruled that the egregious seven-year delay leading up to Mr. Muhtorov’s trial did not violate the Speedy Trial Act.

Muhtorov, whose path to arrest involved surveillance programs exposed by Edward Snowden and an FBI informant pretending to be a terrorist sympathizer, was arrested January 21, 2012. His trial didn’t begin until May 14, 2018. He spent those six years in jail as a pre-trial detainee.

The Appeals Court doesn’t have a problem with any of this. It says the surveillance that targeted the foreign entities Muhtorov communicated with was constitutional… mainly because those rights aren’t applied to foreign surveillance targets. Muhtorov, a legal US resident, was targeted after his communications were incidentally collected, resulting in the government intercepting an untold number of emails and 39,000 hours of audio recordings.

The incidental collection of a US person’s communications is also lawful, says the Appeals Court. It says those were in “plain view,” the other end of targeted foreign communications that the government needs no warrant to obtain. If the initial action was legal, everything that flowed from it was likewise constitutional.

As for the extremely long delay between Muhtorov’s arrest to his trial, the court says, in effect, that this all would have gone a lot quicker if Muhtorov hadn’t engaged in his right to examine the evidence the government planned to use against him. That national security precautions meant he wasn’t able to actually see much of the evidence being used is somehow beside the point. The fact that the government had to gather it and run it past the district court judge shouldn’t be held against the government, the court declares.

The long dissent [PDF], written by Judge Carlos Lucero, excoriates the majority for nearly every conclusion it reached, but spends a considerable amount of time taking the court to task for deciding it was the defendant’s fault the government took so long to produce requested evidence.

I begin with approximately two years of delay that are uncontestably attributable to the government. For just over 21 months, the government did not notify Muhtorov of the involvement of § 702 evidence in the case against him. My colleagues contend that this delay “did not extend the pretrial period,” because this almost two-year delay was encompassed within the six-and-one-half-year delay caused by discovery production. This approaches double-speak: what the majority is saying is that any and all government delay is excusable because of its own delay in discovery production. As I note below, the government’s delay in discovery production is swept aside by my colleagues in conclusory terms to the end that nearly six-and-a-half years in bringing these defendants to trial is excused, thereby setting a new Sixth Amendment “standard of speed.”

That two year delay might have been even longer if not for Ed Snowden. That disclosure of the use of Section 702 surveillance was prompted by his leaks, which not only revealed what the government could obtain under Section 702, but made it clear the DOJ had completely ignored its disclosure obligations for years. As Judge Lucero notes, this delay is entirely the government’s fault. It cannot be used to justify Speedy Trial Act violations.

The government offers no explanation for its belated initial § 702 disclosure. When the government elects to bring national security cases, surely it must know, or should know, whether it is going to present § 702-derived evidence. The attendant delay in doing so cannot be attributed to the defendant.

That was one delay. The other delay was even longer.

Next, the government required four years, seven months, and eleven days to meaningfully respond to the defendant’s discovery requests. A relative pittance of information was provided within the first four years followed by massive production in August 2016. At argument, this production of discovery material was described as a “discovery dump.” Muhtorov’s counsel tell us that only then, after September 1, 2016, were they able to begin to assess the evidence against him. Additional discovery followed, extending well beyond the trial-court-imposed deadlines to the eve of trial in May 2018. Again, I recognize that the extensive nature of Muhtorov’s discovery requests can account for part of the delay, but close to five years of delay cannot be explained away by such summary acceptance of governmental excuses.

Nor should the government be excused simply because the evidence being handed over was sensitive or classified. This was a national security case from the beginning, so the DOJ should have been prepared for the additional complications of preparing and turning over this evidence. Instead, it appears to have started its CIPA (Classified Information Protection Act) evaluation of the evidence nearly four years after it had arrested and charged Muhtorov.

Nor can the factors relied upon by the majority explain the inexplicable: that the government awaited the district court’s denial of Muhtorov’s second motion to suppress on November 19, 2015 to commence its CIPA § 4 evaluation of the evidence. The government began this necessary process only after Muhtorov had been deprived of his liberty for nearly 46 months. Once it deigned to begin, the government managed to complete the bulk of these evaluations within nine months. If the government could complete all these admittedly difficult discovery tasks in nine months in 2016, why could it not have completed them in the first year following Muhtorov’s arrest? Or the second? Or the third? Reason dictates it could have.

The defense tried to speed things up on this front by asking for the appointment of counsel with security clearances that would allow them access to classified evidence. The government objected to this, resulting in even more delays. It wasn’t the only thing the government did to drag out the pre-trial procedures, all of which added up to Muhtorov serving his 11-year sentence before the court took up his appeal of his conviction.

These decisions include (1) opposing the appointment of cleared defense counsel; (2) failing to adequately resource translation services; (3) seeking a third superseding indictment on May 18, 2016 that added charges subsequently dismissed by the government; and (4) discretionary decisions within the CIPA process to restrict or deny information to the defense, including the unilateral implementation of specific techniques to protect a small portion of evidence.

The government shouldn’t get away with this, Judge Lucero argues. The bandying of buzzwords isn’t the same thing as showing justification for trial delays.

Mere incantation of the phrase “national security” does not, and should not, in and of itself justify violations of the speedy trial right. Likewise, the terms “complex discovery” and “translation difficulties” should not stand stead for the term “national security.”

The case may have been complex, but the government is still obliged to respect Muhtorov’s rights. That it took longer for the defense to parse the information it was actually able to access isn’t on the defendant. And US persons shouldn’t be expected to sacrifice one right (challenging evidence used against them) to access another (a speedy trial).

To the extent that the defense was unable to engage in the normal winnowing of issues because of the redacted or summarized nature of the discovery (and as in this case, its late provision), any delay arising from good faith motions should not be weighed against Muhtorov. Although a criminal defendant may be required to make hard strategic choices in the context of a criminal trial, the government’s heads-I-win, tails-you-lose approach to this issue cannot comport with due process.

Lucero also tackles the Fourth Amendment conclusions drawn by the majority and finds them lacking.

I agree with the majority’s conclusion that the incidental collection of Muhtorov’s communications with a target of § 702 surveillance is likely reasonable under the Fourth Amendment, but I find unacceptable the majority’s decision to accept the government’s assertion that no pre-warrant querying took place in light of the complete dearth of supporting evidence in the record. […] By accepting the government’s bare assertion to resolve this dispute of fact, the majority avoids the thorny constitutional issues that querying presents.

If the defendant was unable to adequately challenge the evidence, that’s because the government has stacked the deck against defendants in national security cases. The deck was further stacked here by its refusal to allow the appointment of defense counsel with security clearances who could view the evidence firsthand. Instead, the law forces courts to examine the evidence without acting on behalf of the defendant. Accused persons are pretty much left without any representation in cases involving ex parte submissions. That cuts defendants out of the loop. Courts shouldn’t make this worse by disregarding challenges raised by parties who are working blind.

Through passage of CIPA, Congress has mandated that we step out of our traditional role as neutral arbiters overseeing adversarial presentation of issues and step into a role much closer to that of an inquisitor. As explicitly acknowledged by the government, a district court’s role in cases involving CIPA is to act as “standby counsel for the defendants.” Similarly, on appeal “we must place ourselves in the shoes of defense counsel, the very ones that cannot see the classified record, and act with a view to their interests.” Amawi, 695 F.3d at 471. The judiciary is neither institutionally suited nor resourced to fulfill this role. Yet this is the role that Congress has assigned us. Our colleague on the trial bench said it well when he described acting in this role as feeling like “an illegitimate child at a family reunion.”

[…]

If the defense does not have access to the evidence or to arguments presented by the government in ex parte proceedings because of CIPA, any failure to make arguments with sufficient specificity, to assert specific grounds before the district court, or to produce evidence to contradict the government’s presentation cannot be held against the defendant.

With limited info and, perhaps, an inability to thoroughly parse the government’s evidence, the court relies heavily on the government’s assertions. Too many of these go unchallenged, though. And when that happens, rights evaporate into the national security ether. Judge Lucero says the record — albeit not one before the court — shows the government has regularly abused its surveillance powers. That alone should have resulted in courts at both levels refusing to take government assertions about legality at face value.

Although the government presents the relevant targeting and minimization procedures for the relevant years in its classified record, it never describes in detail how and when the “acquisition” of the information occurred in Muhtorov’s case. This may be explained by the FBI’s documented history of widespread U.S. person querying and of non-compliance with its record-keeping responsibilities under its own minimization procedures. Perhaps as a result, there is no evidence in the record either that querying did not occur or that the government agents who directed or sought the traditional FISA application did not know of its existence or results. Without that information, it is impossible for us, acting as standby defense counsel, to resolve the derivative evidence question. The government’s reframing of the issue—as requiring only our evaluation of the limited basket of intercepted communications it chose to submit to the FISC—borders on disingenuous, given the breadth of the derivative evidence inquiry. Deprivation of liberty based on the government’s mere say-so is antithetical to established constitutional order.

And the majority’s refusal to consider the implications of incidentally collected US persons’ communications basically codifies mass rights violations.

My colleagues rely on the plain view and incidental overhear doctrines to countenance the use of millions of § 702-acquired communications that are stored in vast databases. This reliance risks fundamentally undermining heretofore reasonable expectations of privacy of U.S. persons whenever they communicate with another person located abroad.

Oof. If this damage is going to be undone, it will have to be the Supreme Court doing it. And historically it hasn’t shown much interest in challenging government national security claims or its bulk surveillance programs. Things look pretty dire here in the Tenth Circuit. Rights just aren’t rights when national security is involved.

Filed Under: 10th circuit, 4th amendment, 6th amendment, doj, national security, section 702, warrants