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Terror suspect challenges NSA

Says surveillance evidence can’t be used against him

A Colorado man facing terrorism charges became the first criminal defendant to challenge the constitutionality of the National Security Agency’s warrantless surveillance program.

Jamshid Muhtorov, a refugee from Uzbekistan, filed a motion Wednesday in federal court in Denver to suppress any evidence obtained from the surveillance on grounds that it was unlawful.

“Mr. Muhtorov believes that the government’s surveillance of him was unlawful for the simple fact that it was carried out … under a statute that fails to comply with the Fourth Amendment’s most basic requirements” that the government obtain a warrant and that the monitoring be reasonable, his attorneys said in a 55-page document.

Muhtorov’s case is likely to be the first in which a court weighs the constitutionality of a law that has stoked controversy since it was passed in 2008 as a revision to the Foreign Intelligence Surveillance Act. The issue could ultimately be decided by the Supreme Court.

The law enables the government to monitor communication targeting foreigners. It previously had been challenged, but last year the Supreme Court dismissed a case brought by a group of lawyers, journalists and human rights activists, stating that the plaintiffs could not prove they had been subject to the surveillance.

Muhtorov, however, in October became the first defendant to be notified by federal prosecutors that evidence from the warrantless surveillance program was used in his case. That notice essentially gave him standing to mount a legal challenge.

Muhtorov, 37, is charged, along with another man, of attempting to provide material support to the Islamic Jihad Union, an Uzbek group designated as a terrorist organization; its members, the government says, have trained with and provided support to al-Qaida. Muhtorov is not accused of plotting an attack on U.S. soil. He pleaded not guilty.

The evidence against Muhtorov consists of emails and phone calls intercepted in 2011. At least one email exchange is allegedly with an account linked to the Islamic Jihad Union.

But the government has not told him which communications it obtained without a warrant, and whether they were used as the basis for subsequent warrant applications.

Muhtorov’s attorneys argue that the 2008 law grants powers “far more sweeping than the authority that the government” has exercised with the traditional court order under FISA, which requires a warrant from a judge and a finding that the target is an agent of a foreign power.

They argued that the Supreme Court has emphasized that a surveillance statute is reasonable only if it is precise and discriminate. The FISA Amendments Act “is anything but,” said the lawyers from the federal public defender’s office and the American Civil Liberties Union.

Intelligence officials have argued that the program is legal and effective. They credit it with having helped thwart dozens of terrorist plots at home and abroad.

They point to rules that protect the privacy of Americans whose communications are collected inadvertently or because they were in contact with a foreign target.