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Mohamed Mohamud sat between lawyers last year as his attorneys argued about whether the government's key expert witness should be allowed to testify at his trial.

(Deborah Marble)

The government on Tuesday gave its first formal notice that warrantless wiretaps overseas helped make its terrorism case against Mohamed Mohamud.

Federal prosecutors wrote in a two-page filing in Portland's U.S. District Court that at Mohamud's trial in January they offered evidence that was derived from warrantless surveillance of a foreign target outside the U.S.

The government filed its notice less than a month before Mohamud is to be sentenced for attempted use of a weapon of mass destruction.

A jury convicted the Somali American in January of a Nov. 26, 2010, attempt to detonate what he thought was a massive fertilizer bomb next to thousands of holiday revelers gathered in Portland's Pioneer Courthouse Square for the city's annual tree-lighting ceremony.

The bomb was a harmless fake introduced to Mohamud by a pair of undercover FBI agents posing as al-Qaida terrorists.

Prosecutors filed their notice shortly before the courthouse closed Tuesday, saying they had offered evidence or disclosed in court proceedings – including Mohamud's trial – information that had been derived under a controversial amendment to the Foreign Intelligence Surveillance Act of 1978, better known as FISA.

Mohamud's lawyers could not be reached immediately for comment.

FISA allows the FBI, CIA and National Security Agency to physically and/or electronically eavesdrop on U.S. citizens and legal residents suspected as acting as agents of foreign governments. Many of the government's targets are later charged criminally as terrorists or spies.

The law was amended in 2008 to allow the U.S. to electronically eavesdrop on foreign targets even when the surveillance happens to pick up the emails or phone calls of Americans.

Tuesday's notice was the first formal indication that the government had used that amendment, known as Section 702, to intercept communications overseas that ultimately helped the FBI make its case against Mohamud.

A criminal complaint signed the night of Mohamud's arrest made it clear that Mohamud had exchanged emails with friends in the Middle East.

One of those contacts, a Saudi national named Amro Alali, had previously attended Portland State University. The FBI characterized Alali as a wanted terrorist during Mohamud's trial.

A recent policy shift in the U.S. Department of Justice caused the government to begin issuing notices in cases where interception of foreign communications under FISA is used.

The Justice Deparment filed its first such notice last month when it notified a court in Colorado that it used a warrantless wiretap to make a January 2012 terrorism case, The New York Times reported. Prosecutors accuse Jamshid Muhtorov of providing material support to a terrorist organization in Uzbekistan.

A Justice Department spokesman issued to The Oregonian what is likely to be a standard statement when prosecutors issue notices that they used FISA's overseas eavesdropping amendment:

"In keeping with the department's ongoing, publicly confirmed review, the government has given notice that evidence derived from Title VII of FISA was used in this case."

Mohamud's lawyers have asked U.S. District Judge Garr M. King to impose a 10-year prison term on their client at his Dec. 18 sentencing.

Prosecutors seek a minimum 40-year sentence, and a report filed by U.S. probation officials recommends a life sentence, according to court records.

-- Bryan Denson