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Colorado defendant is first to challenge expanded U.S. surveillance effort

An illustration picture shows the logo of the U.S. National Security Agency on the display of an iPhone in Berlin, June 7, 2013. REUTERS/Paw
An illustration picture shows the logo of the U.S. National Security Agency on the display of an iPhone in Berlin, June 7, 2013. REUTERS/Paw

By Keith Coffman

DENVER (Reuters) - A Colorado man accused of having links to an overseas militant group on Wednesday became the first defendant to challenge the constitutionality of a 2008 law authorizing expansion of warrantless surveillance by the U.S. government, lawyers said.

Jamshid Muhtorov, 37, who is originally from Uzbekistan and moved to suburban Denver in 2007, was indicted two years ago along with another man on charges of providing and attempting to provide material support to a group listed by the U.S. government as a terrorist organization.

Civil libertarians have questioned the constitutionality of the U.S. government's 2008 amendment to the Foreign Intelligence Surveillance Act (FISA) that gave authority to the National Security Agency to gather information from phone and Internet providers in the United States when the people targeted are believed to be overseas.

Muhtorov's case stands out in that debate, because last year he became the first defendant to have been formally notified by U.S. prosecutors that evidence against him had been gathered under the 2008 law. Now, he has become the first such defendant to challenge the constitutionality of the 2008 amendment to FISA, the American Civil Liberties Union said in a statement.

He is represented by public defenders, but ACLU attorneys assisted in the motion filed on Wednesday.

His attorneys contend in the filing that the 2008 amendment to FISA violates the U.S. Constitution because it permits the U.S. government to collect and access international communications of U.S. residents in bulk, without the issuance of warrants for targeted individuals.

His attorneys said in a motion filed in U.S. District Court in Denver that evidence gathered against Muhtorov under the National Security Agency's surveillance program violated his constitutional right against unreasonable search and seizure.

"The surveillance of Jamshid Muhtorov ... was unconstitutional and the fruits of that surveillance must be suppressed," the motion said.

Last year, the U.S. Supreme Court dismissed a lawsuit by Amnesty International and others that challenged the 2008 expansion of FISA. The high court found the groups had no legal standing because they could not establish that they were under surveillance by the expanded law.

LANDMARK RULING

In another landmark development relating to U.S. surveillance, U.S. District Judge Sharon Coleman on Wednesday ordered the federal government to disclose to attorneys for Adel Daoud search warrant applications in his case that the government presented to a FISA court. Daoud is accused of trying to set off a car bomb in Chicago.

Coleman, in her ruling, acknowledged no court has ever allowed disclosure of FISA materials to defense attorneys since the law's passage in 1978, but she wrote that in the Daoud case "the disclosure may be necessary."

U.S. government surveillance has gained new prominence due to revelations from former NSA contractor Edward Snowden about the scope of U.S. data gathering. Snowden fled to Russia and is under investigation by the U.S. government.

Citing a gag order imposed by the judge in the Muhtorov case, a spokesman for the U.S. Attorney's Office in Denver said prosecutors could not comment on the filing by his attorneys.

Mark Silverstein, legal director for the ACLU of Colorado, said in a statement the government has insulated the 2008 expansion of FISA from judicial review by concealing from criminal defendants how the evidence against them was obtained.

"But the government will not be able to shield the statute from review in this case," he said.

Muhtorov, who has pleaded not guilty to the charges, was arrested in January 2012 at O'Hare International Airport in Chicago. Prosecutors said he was planning to head overseas to fight with the Islamic Jihad Union, a Pakistan-based resistant group that opposes secular rule in Uzbekistan.

An FBI affidavit filed in the case said law enforcement monitored Muhtorov's emails and telephone calls when his name surfaced after German authorities thwarted a plot by the IJU to blow up unidentified targets.

In one monitored phone call, Muhtorov told one of his daughters he would never see her again "but if she was a good Muslim girl he will see her in heaven," the affidavit said.

(Editing by Alex Dobuzinskis and Ken Wills)

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