

Last October, the Justice Department made a seemingly cosmetic change to its procedures related to NSA surveillance: requiring prosecutors to tell defendants when the evidence against them originated with a warrantless wiretap (remember that the NSA made a practice of handing warrantless wiretapping data over to the DEA and other agencies, who would then request a warrant in order to create a plausible, public source of evidence).

But that change made all the difference. Last year, the Supreme Court ruled that you couldn't sue the government over warrantless wiretapping unless you had direct evidence that you'd been spied on. The catch? The only way to get evidence that you'd been spied on was to sue the government, which you couldn't do without evidence.

The first defendant to be notified that the case against him was built on warrantless wiretaps is an Uzbek human rights activist who lives in Colorado, named Jamshid Muhtorov. Under the new rules, Muhtorov now has the evidence he needs to challenge the government's program of warrantless surveillance — and that's just what he's doing. The ACLU has taken his case, and have filed a motion [PDF] challenging the evidence against him.

A win for Muhtorov would be a win for America, and for everyone who believes that you can't fight crime while ignoring the law.

Muhtorov and his counsel from the American Civil Liberties Union (ACLU) filed a new motion against the government in his pending criminal case. In his 69-page brief, he argues that the "fruits of the [FISA AA] surveillance" be suppressed on the grounds that his Fourth Amendment rights, protecting against unreasonable search and seizure, were violated. "The FISA Amendments Act affords the government virtually unfettered access to the international phone calls and e-mails of US citizens and residents," ACLU Deputy Legal Director Jameel Jaffer said in a statement. "We've learned over the last few months that the NSA has implemented the law in the broadest possible way and that the rules that supposedly protect the privacy of innocent people are weak and riddled with exceptions. Surveillance conducted under this statute is unconstitutional, and the fruits of this surveillance must be suppressed."

In rare move, terrorism suspect challenges core of warrantless snooping law [Cyrus Farivar/Ars Technica]