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A sketch shows Mohamed Mohamud and his attorneys during his January 2013 trial.

(Deborah Marble)

Attorneys for convicted would-be bomber Mohamed Mohamud are asking a federal judge to toss evidence that they say resulted from the government's use of an "unconstitutional" law that allows mass collection of Americans' international communications through the use of warrantless electronic surveillance.

They also argue that the government's belated admission that it derived evidence in Mohamud's case from the use of the provision violated the law and the government's obligations to ensure a fair trial. Mohamud, who was found guilty of trying to set off a bomb at Portland's holiday tree lighting ceremony in 2010, should have his conviction vacated, the indictment dismissed or, at the very least, be given a new trial without the use of tainted evidence, they said.

"Government conduct, including surveillance activity, was central to the entrapment defense that was presented at trial," states one of the court documents, filed last Friday in U.S. District Court in Portland. But the government withheld critical information that could have allowed the defense to further show that Mohamud, who was "confused and manipulable," was not predisposed to commit the crime and that the FBI agents had induced him into the scheme, they wrote.

The requests stem from the government's admission in November 2013 – nine months after Mohamud's trial and conviction – that it used information derived under Section 702 of the 2008 Amendments Act to the Foreign Intelligence Surveillance Act in building its case against Mohamud. The law allows the collection and retention of communications with foreign targets without a warrant, including those from Americans.

U.S. District Judge Garr King postponed Mohamud’s sentencing in light of the disclosure.

The government has argued that it did not violate the law, noting it announced at the time of Mohamud's arrest that it had obtained evidence under two other sections of FISA, Title I and Title III. But the Justice Department recently changed its procedures, wrote Assistant U.S. Attorney Ethan Knight, and re-evaluated whether that could be viewed as also having been derived from intelligence collected under the warrantless surveillance provision authorized in 2008.

The evidence is the same, he wrote, and does nothing to change the requirements – with which he complied – for sharing information with the defense.

But Mohamud's attorneys contend that the controversial provision violates First and Fourth Amendment protections. Under Section 702, Americans' calls and emails with overseas targets can be obtained without a warrant that establishes probable cause and without any vetting on an individual basis by a court, Mohamud's attorneys argue.

In addition, it violates the First Amendment with its overbroad scope and vagueness, they write, which has “deeply chilled” Americans’ communications in violation of free-speech and free-association protections.

The federal court in Portland and the federal court in Colorado are the first to address constitutional challenges to the warrantless surveillance provision at issue, according to the filings.

In their filings, Mohamud’s lawyers, Steven Wax, Stephen Sady and Lisa Hay of the Federal Public Defender’s office, cited U.S. Supreme Court rulings that they say lay the groundwork for dismissing the indictment due to the government’s belated disclosure. The requirement to provide that notice to defendants, they write, is “a necessary check on unbridled executive searches and seizures.”

“Especially at a time when the massive national security apparatus intrudes ever more deeply into Americans’ communications, the pretrial notice statute, upon which the liberty and privacy of all Americans depend, should be interpreted to require dismissal or at least suppression as the logical consequence of the government’s conduct,” the memorandum states.

Among other things, the defense had argued during the trial that the massive amount of government surveillance gave agents clear insight into Mohamud. That was “then used to tailor the sting operation in a way that would maximize the likelihood that he would carry through with the eventual plan.”

Mohamud’s attorneys also renewed their request for internal government documents relating to the surveillance, its origins and the decision to ultimately issue the notice last November. Because such information have been withheld throughout the proceedings, they have had only partial glimpses of the evidence on which to build a case and challenge government witnesses.

"While the defense has attempted to present some scenarios above to alert the Court to meritorious arguments about the effect that the withheld evidence had on the trial, the reality is that no such defense guess-work can accurately present the issues or arguments, “ the filing reads.

The U.S. Attorney’s office is expected to file its response by May 2.

-- Helen Jung