The Muhtorov Constitutional Challenge to Section 702

Jamshid Muhtorov is a lawful permanent U.S. resident and a criminal defendant in the U.S. District Court for the District of Colorado, charged with providing material support to a terrorist organization.  In October, the government informed Muhtorov that it intends to offer into evidence, or otherwise use at his trial, information obtained or derived from a search undertaken under section 702 of the FISA Amendments Act of 2008.

Section 702, recall, permits the government to obtain the contents of international communications if at least one party is believed to be a non-U.S. person abroad.  Such communications, naturally, will often involve U.S. persons, or be about U.S. persons.  The statute requires the government to “minimize” such incidentally obtained information about U.S. persons, but the government may retain and use such information if it contains “foreign intelligence information,” which is broadly defined.  Presumably the information the government plans to use in the Muhtorov case is such foreign intelligence information about Muhtorov that was incidentally obtained in surveillance “targeting” a person or persons abroad.  (For example, the information in question apparently includes a January 2011 email exchange between an account allegedly linked to the Islamic Jihad Union and an account associated with Muhtorov.)

Muhtorov’s attorneys, assisted by ACLU attorneys (including Just Security’s own Jameel Jaffer), have now moved to suppress that section 702-derived evidence, on grounds that section 702 violates the Fourth Amendment (see pages 21-43) and Article III (pages 44-47).  As far as I know, the arguments in this motion to suppress are the most comprehensive articulations of the constitutional challenges to section 702 yet offered in court (or in the literature, for that matter).

Of course, section 702 is not the only authority under which the government collects information about U.S. persons “incident” to surveillance of people abroad.  Since foreigners overseas frequently communicate with and about U.S. persons, such incidental U.S.-person collection occurs under traditional FISA, as well, and under the various sorts of foreign surveillance that the NSA has undertaken pursuant to Executive Order 12,333 since FISA was enacted in 1978.  The challenge for Muhtorov and the ACLU, then–reflected in their arguments in this brief–is to explain why such incidental collections (and uses) of U.S.-person information are (presumably) constitutional under traditional FISA and E.O. 12,333, but not under FAA section 702.  One obvious, major difference is that the FISA court is asked to play a very different role in approving section 702 surveillance than it plays in approving ordinary FISA surveillance and traditional criminal search warrants.  The Muhtorov brief argues that that new role is incompatible with federal courts’ limited jurisdiction under Article III.

We’ll post the government’s response when it is filed. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).