Warrantless surveillance program headed to high court

Richard Wolf | USA TODAY

WASHINGTON — A constitutional showdown over the U.S. government's warrantless surveillance program may be headed back to the Supreme Court.

The Department of Justice for the first time Friday notified a criminal defendant that the terrorism-related charges against him stemmed from Congress' 2008 amendments to the Foreign Intelligence Surveillance Act (FISA).

The filing came after Solicitor General Donald Verrilli, the government's advocate to the Supreme Court, won an internal Justice Department debate over whether defendants must be advised about such secret surveillance.

The case against Jamshid Muhtorov, 35, a refugee from Uzbekistan living in Aurora, Colo., now appears destined to become the test case for whether the warrantless surveillance program can pass constitutional muster.

Muhtorov was arrested in January 2012 on a charge of providing and attempting to provide material support to a designated foreign terrorist organization. The FBI alleged that he planned to travel overseas and fight on behalf of the Pakistan-based Islamic Jihad Union, which has conducted suicide attacks in Uzbekistan and claims responsibility for attacks against coalition forces in Afghanistan.

The previously secret program targets suspected terrorists outside the United States, but it often leads to eavesdropping on phone calls and e-mails involving U.S. residents as well. The Justice Department maintains the program does not violate their Fourth Amendment protection against illegal searches because it picks up U.S.-based individuals only while targeting those overseas.

"We welcome the government's belated recognition that it must give notice to criminal defendants who it has monitored under the most sweeping surveillance law ever passed by Congress," said Patrick Toomey, staff attorney with the American Civil Liberties Union. "By withholding notice, the government has avoided judicial review of its dragnet warrantless wiretapping program for five years."

Department officials expect civil liberties groups such as the ACLU to test that theory. Amnesty International and other civil libertarians brought the last challenge to the law in 2012, but the Supreme Court ruled earlier this year the plaintiffs lacked standing to challenge it.

In a 5-4 decision in February, the court's more conservative justices ruled that lawyers, journalists, human rights activists and others could not challenge the law increasing the government's ability to intercept international communications because they could not prove they had been wiretapped.

"This theory of future injury is too speculative," Justice Samuel Alito said in announcing the decision, calling it "hypothetical future harm."

Advocacy groups that had supported those seeking to challenge the law warned that the decision risked shielding it forever from review in open court. The Foreign Intelligence Surveillance Court meets in secret and doesn't always publish its decisions.

"This ruling insulates the statute from meaningful judicial review and leaves Americans' privacy rights to the mercy of the political branches," said Jameel Jaffer, deputy legal director for the American Civil Liberties Union, who argued the case in court.

But Verrilli's insistence that the government notify defendants of any warrantless surveillance changes the equation, virtually guaranteeing another Supreme Court showdown.