U.S. Notifies Criminal Defendant of Its Intention To Use FISA Information Against Him
In what could be a consequential move, federal prosecutors this week informed a man accused of providing material support to the Islamic Jihad Union ("IJU") that they intend to "offer into evidence or otherwise use or disclose in proceedings [against him] ...
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In what could be a consequential move, federal prosecutors this week informed a man accused of providing material support to the Islamic Jihad Union ("IJU") that they intend to "offer into evidence or otherwise use or disclose in proceedings [against him] ... information obtained or derived from" intelligence collection conducted under Section 702 of FISA.
The 2011 complaint filed against the defendant, Jamshid Muhtorov, alleges that he communicated with the IJU via email and over the phone (using the word "wedding" as code for a terrorist attack) in order to make plans to travel abroad and to join IJU militants.
The AP and the New York Times both have details on the Department of Justice's notification in the Muhtorov case. Earlier this year, in Clapper v. Amnesty International, the Supreme Court had rejected a civil lawsuit against FISA on standing grounds. But, as the AP reminds us, the ruling also suggested that, under FISA, use by prosecutors of FISA stuff would call for prior notice to the accused---and thus tee up a legal objection. From the AP story:
In the majority opinion last February, 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. In his argument before the court’s decision, Solicitor General Donald Verrilli had made similar comments to the justices on behalf of the administration.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT.
Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
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