Jamshid Muhtorov, an Uzbeki man who moved to Colorado in 2007 as a political refugee, is challenging the U.S. government for relying on communication gathered without a warrant to arrest him in 2012. Muhtorov was accused of aiding an Islamist militant group overseas.
According to Muhtorov's defense team, an amendment to the Foreign Intelligence Surveillance Act (FISA), the FISA Amendment Act of 2008 (FAA) allowed the NSA to track Muhtorov's communications without a warrant, in violation of his constitutional rights. This is the first time someone has brought a case against the NSA for its dragnet surveillance practices, and its outcome could set an important precedent for how U.S. spying cases are handled in the future.
Muhtorov, 37, was able to bring his case to court because he was also the first to be notified that evidence against him was authorized by the FAA law. According to the ACLU, which has attempted to take legal action against federal snooping before and has joined Muhtorov's challenge, the government requires evidence of actual spying before a lawsuit can be brought. The rights group says that the retaliatory case has long been in the works:
In 2008, the ACLU challenged the FAA on behalf of a coalition of human rights, media, labor, and legal organizations in Clapper v. Amnesty. Last year, a divided Supreme Court held, 5 to 4, that the Amnesty plaintiffs lacked standing to challenge the law because they couldn't prove that their communications had been monitored under it. That, of course, was before the world learned from Edward Snowden that the government was using the FAA exactly as the Amnesty plaintiffs had alleged.
Officials stopped Muhtorov, carrying roughly $2,800 in cash, sealed iPhones, an iPad and a GPS device, in Chicago's O'Hare airport in 2012. Muhtorov he says he was en route to visit his family in Uzbekistan, but authorities claim that he was headed abroad to work with the Islamic Jihad Union, a militant group. Muhtorov has consistently denied that he was helping further a terrorist plot, but not necessarily that he had a relationship with the organization, according to the Denver Post:
In an affidavit, the FBI says they tapped Muhtorov's phone calls and recorded him talking about final goodbyes to his family and about his allegiance to global jihad. Critics of the charges against him say if Muhtorov was supporting the IJU it wasn't for the purpose of hurting American forces, rather it was to continue fighting a dictator in Uzbekistan. Muhtorov has a documented record as a human rights activist in the country.
The court filing describes the government's snooping as unauthorized, and noted that disclosure of the surveillance was much delayed:
At the outset of the prosecution, the government represented that it had conducted these searches based on “court authorization[s].”... On February 7, 2012, the government notified Mr. Muhtorov that it intended to “offer into evidence or otherwise use or disclose” in these proceedings information “information obtained and derived” from surveillance conducted under FISA, 50 U.S.C. §§ 1801–1811, 1821–1829. Doc. 12. That notice, however, made no mention of surveillance under the FAA. Mr. Muhtorov did not learn that the government had intercepted his communications under the FAA until October 25, 2013, twenty months after the government’s initial FISA notice.
In addition to challenging FAA, Muhtorov is asking for details on how the government used the amendment to gain access to his communications.
In a similar case, a judge ruled on Wednesday that the government must disclose search warrant applications to the lawyers of Adel Daoud, who was accused of attempting to detonate a car bomb in Chicago in 2012, an allegation Daoud denies. The judge's ruling marks the first time in FISA's 36-year history that government officials have been ordered to disclose information about how the act was used to defense attorneys in a criminal trial.