WASHINGTON – The U.S. Justice Department says for the first time it plans to use information gained from one of the National Security Agency’s warrantless surveillance programs against an accused terrorist, setting the stage for a likely Supreme Court test of the Obama administration’s approach to national security.
The top court so far has turned aside challenges to the law on government surveillance, saying people who bring such lawsuits have no evidence they are being targeted. Warrantless programs mean they need no court authorization in advance.
Jamshid Muhtorov was accused in 2012 of providing material support to the Islamic Jihad Union, an Uzbek terrorist organization that, authorities say, was engaging NATO coalition and U.S. forces in Afghanistan.
According to court papers, the FBI investigated Muhtorov because of his communications with a website administrator for the IJU.
In a court filing Friday, the U.S. government said it intends to offer into evidence “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978.”
Last February, the Supreme Court ruled in a 5-4 vote that a group of lawyers, journalists and organizations could not sue to challenge the 2008 expansion of the surveillance law. The court said the plaintiffs could not show that the government would monitor their communications along with those of potential foreign terrorist and intelligence targets.
In the majority opinion, Justice Samuel Alito suggested a way for a challenge to be heard. He said if the government intends to use information from such surveillance in court, it must provide advance notice.
Last month, Supreme Court Justice Antonin Scalia said the courts ultimately will have to determine the legality of the NSA surveillance program. Justice Department spokesman Brian Fallon declined comment Saturday.
After Muhtorov’s contact with the IJU’s website administrator, the FBI went to court and obtained email from two accounts that Muhtorov used, according to court papers.
The FBI also went to court to obtain communications originating from Muhtorov’s phone lines. In one call, Muhtorov told an associate that the IJU said it needed support, an FBI agent said in an affidavit filed in the case.
The associate warned Muhtorov to be careful about talking about a founder of the group, the affidavit stated.
The FBI also said Muhtorov communicated with a contact in the group by email using code words, telling a contact that he was “ready for any task, even with the risk of dying.”
Muhtorov, a refugee from Uzbekistan, resettled in the United States in 2007 with the help of the United Nations and the U.S. government. He was arrested Jan. 21, 2012, in Chicago with about $2,800 in cash, two shrink-wrapped iPhones and an iPad, as well as a GPS device.
In March last year, Muhtorov’s attorney, federal public defender Brian Leedy, said at a court hearing that Muhtorov denied the allegations and had been going to the Uzbekistan region to visit family, including a sister who remains imprisoned there.