Questions on NSA spying raised in court

Suspects can't challenge use of surveillance

by Ellen Nakashima

The Washington Post

Four days before a sweeping government surveillance law was set to expire last year, Sen. Dianne Feinstein, chair of the Intelligence Committee, took to the Senate floor. She touted the 2008 law’s value by listing some of the terrorist attacks it had helped thwart, including “a plot to bomb a downtown Chicago bar” that fall.

Today, however, the government is refusing to say whether the FISA Amendments Act was used to develop evidence to charge Adel Daoud, a 19-year-old accused of the bomb plot.

Daoud’s lawyers said in a motion filed Friday that the reason is simple: The government wants to avoid a constitutional challenge to the law, which governs a National Security Agency surveillance program that has become the focus of national debate over its reach into Americans’ private communications.

“Whenever it is good for the government to brag about its success, it speaks loudly and publicly,” lawyers Thomas Durkin and Joshua Herman wrote in their motion. “When a criminal defendant’s constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of state secrets.”

If the government acknowledged that it had used evidence gathered under the act, Daoud would have standing to challenge the law’s constitutionality.

Specifically, his lawyers would be able to take on a provision known as Section 702, which permits the interception of foreign targets’ emails and phone calls without an individual warrant, even when the foreigners are in communication with Americans or legal residents.

The U.S. Supreme Court in February rejected a constitutional challenge to Section 702 by a group of journalists, lawyers and human rights advocates, saying they had no standing to sue because they had not proved that their communications had been intercepted.

But the court also said that if the government intends to use information derived from the Section 702 surveillance in a prosecution “it must provide advance notice of its intent,” and a defendant may challenge the lawfulness of the surveillance.

The government assured the court that it would give such notice to criminal defendants.

In a filing this month in Chicago, U.S. Attorney Gary Shapiro refused to say whether the evidence was obtained under Section 702. Instead, he said, the government told Daoud the evidence was acquired pursuant to a traditional FISA court order rather than under the expanded surveillance program authorized in 2008. A traditional order requires the government to go to a FISA judge and show probable cause that the target is an agent of a foreign power.

Daoud’s attorneys say in their pleading that the government is being disingenuous. “We believe it is clear that the evidence . . . came from Section 702,” Durkin said in an interview. “Either Sen. Feinstein’s information was correct in December 2012, or she was given wrong information. The government has never disputed what she said.”

“The most troubling part of the case is the government seems to be trying to hide the ball,” said Alex Abdo, a staff attorney for the American Civil Liberties Union, which argued the Supreme Court case on behalf of the journalists, lawyers and activists. “They told the Supreme Court not to worry about reviewing the FISA Amendments Act because it would get reviewed in a criminal case. They said if they used the evidence in a criminal case, they’d give notice. Now they’re telling criminal defendants they don’t have to tell them.

“It’s a game of three-card monte with the privacy rights of millions of Americans.”

Abdo said the original FISA statute, passed in 1978, requires the government to notify defendants when evidence being used against them is derived from surveillance authorized by the law. The court, he said, should require the government to abide by the law. “Otherwise,” he said, “the most sweeping surveillance program ever enacted by Congress will never be reviewed in public by a court.”