Politico’s Josh Gerstein fails to mention the convict is a Muslim who wanted to and thought he was about to kill thousands of Americans at a Christmas tree lighting. via Terror convict seeks snooping evidence – POLITICO.com.
Lawyers for an Oregon man convicted in an attempted terrorism case using evidence derived from one of the National Security Agency surveillance programs detailed by leaker Edward Snowden are demanding broad access to the top-secret surveillance conducted against their client and arguing that it will demonstrate that his conviction be thrown out.
In a motion filed Monday in federal court in Portland, attorneys for Mohamed Mohamud argue that information on the surveillance was deliberately withheld from the defense prior to a jury convicting him nearly a year ago on a count of attempted use of a weapon of mass destruction. Mohamud was arrested as part of an FBI sting in which he attempted to detonate a dummy vehicle bomb at Portland’s Christmas tree lighting ceremony in 2010.
In apparent response to a complex string of events involving an inaccurate representation to the Supreme Court by Solicitor General Donald Verrilli (a seemingly unintentional one on his part) and a later statement by Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.), prosecutors advised the Oregon federal court and the defense in November that evidence introduced at Mohamud’s trial was the product of surveillance under a 2008 law, the FISA Amendments Act. Under that law, such a notice was supposed to be provided to the court and defense prior to the trial, the defense argued.
“The Court should conclude that, based on the apparent provenance of the government’s belated disclosure, the government’s failure to comply
with the FAA notice requirement resulted from knowing and intentional conduct by government actors,” Mohamud lawyers Steve Sady, Steve Wax and Lisa Hay wrote in a legal memo supporting the discovery motion.
It appears that Mohamud’s communications with others abroad were acquired under FAA Section 702, a program that allows the NSA to obtain communications from Internet providers by requesting information about foreigners outside the U.S. Under some circumstances, data on Americans that shows up in such e-mail or social media feeds can be used to pursue a criminal case.
Mohamud, who was 18 at the time of his arrest, was scheduled to be sentenced last June but that sentencing was delayed to last December for unclear reasons that now appear to have been related to the surveillance issue. The December sentencing was canceled after the government filed the notice regarding evidence obtained by surveillance.
U.S. District Court Judge Garr King has ordered prosecutors to reply within a month to the motion the defense filed Monday.
Similar litigation is underway in at least one other case, in Colorado,where federal prosecutors recently disclosed surveillance-derived evidence to a criminal suspects charged with providing material support to a designated terrorist group.
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