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Section 702 surveillance set to prosper no matter which party controls Washington

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A federal appeals court ruled last week that the government did not violate the Fourth Amendment rights of Mohamed Mohamud, a Somali-American student arrested by the FBI in 2010, when it spied on him under authorities granted under Section 702 of the Federal Intelligence Surveillance Act. The decision is a setback to a much needed rollback of Section 702 powers, which appear to be used, as this case suggests, for the kind of operations that could be characterized as entrapment, rather than anything that might actually prevent real terrorist attacks.

The case of United States v. Mohamud presented the best opportunity for critics of FISA to challenge it on constitutional grounds, since the government admitted some of the evidence it had collected against Mohamud was collected under a provision of the law permitting the federal government to collect all kinds of communications between U.S. citizens and foreign individuals the government has targeted for terror-related investigations.

{mosads} The American Civil Liberties Union and the Electronic Freedom Foundation joined in the legal battle to get the court to find that the evidence was collected unconstitutionally—Mohamud’s lawyers believed such a ruling would help them to advance the defense that Mohamud had been entrapped. Government prosecutors argued Mohamud had not been entrapped because his communications with a foreign terrorism suspect, Samir Khan, who was the editor and publisher of Inspire, an Al-Qaeda magazine. 

 

Khan was killed in a U.S. drone strike in Yemen in 2011, along with Anwar al-Awlaki, a U.S. citizen and alleged recruiter and spokesperson for Al-Qaeda in the Arabian Peninsula. Neither man had ever been convicted in a court of law before being targeted by U.S. drone strikes. Al-Awlaki’s American-born teenaged son, Abdulrahman, was killed in a U.S. drone strike in Yemen the following month.

In last week’s decision, Judge John Owens ruled that the government had not overreached in its “sting,” and that while “the government’s conduct was quite aggressive at times, it fell short of a due process violation.” The court also decided that while the government delayed disclosing to Mohamud’s attorneys the use of Section 702 to collect some of the evidence used against him, that delay did not amount to “prosecutorial misconduct.” 

Finally, the court noted, Congress had “not mandated suppression as a remedy for late disclosure of a FISA notice,” and that in any case, it did not believe Mohamud’s case had been weakened by the tardy disclosure.

The court ultimately upheld Mohamud’s 2014 conviction and sentencing to 30 years in prison.

Critics have pointed out that one of the court’s key findings, that the government did not acquire evidence on Khan via a “backdoor search,” or a search of data collected on foreign targets using terms associated with American individuals, stands on a tenuous premise. 

“We think the court almost certainly got the facts wrong,” EFF attorney Andrew Crocker said in an interview with TechCrunch. “Based on public evidence in the case, it seems the FBI did in fact search its database for Mr. Mohamud’s emails—which would be a serious violation of his rights, according not just to EFF and ACLU, but also to lawmakers like Sen. Ron Wyden who have been trying to stop this practice.”

Wyden, an Oregon Democrat, has been warning about FISA for years, and noted in October that the FISA court itself has admitted to capturing tens of thousands communications taking place entirely within the United States under its Section 702 authority, and that the number of Americans affected could be even higher. The relevant sections of FISA expire in December 2017, but with a Republican Congress, it’s likely those provisions will be extended.

President Obama was briefly an opponent of FISA during his tenure in the Senate, but voted in favor of expanding it in 2008. In 2012, the Republican Congress passed and Obama signed into law a bill extending the authorization for Section 702 until the end of 2017.

Since the election of Donald Trump, who did not offer even lip service to the importance of the Constitution or constitutional limits on government, Obama has showed little interest in curbing government power before he leaves office. We should infer that both parties apparently support the overreach of the surveillance state, a fact that should concern Americans.

Ed Krayewski (@EdKrayewski) is an associate editor at Reason.com.


The views expressed by contributors are their own and are not the views of The Hill.

Tags Donald Trump Ed Krayewski FISA Ron Wyden Section 702 Surveillance

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