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ACLU, terror suspect challenge NSA surveillence program

The Office of the Federal Public Defender of Colorado [official website] and the American Civil Liberties Union (ACLU) [advocacy website] filed a motion [text, PDF] on behalf of terror suspect Jamshid Muhtorov Wednesday to suppress evidence the National Security Agency (NSA) [official website] obtained from surveillance conducted pursuant to the FISA Amendments Act of 2008 (FAA) [text, PDF]. Muhtorov, a 35-year-old Uzbekistan refugee was arrested [AP report] in January 2012 and has been indicted on charges of providing and attempting to provide material support to a designated foreign terrorist organization, the Islamic Jihad Union [UMD START backgrounder]. Muhtorov was notified [AP report] by the Department of Justice (DOJ) [official website] in October that the government intended to offer into evidence during the proceedings information obtained from surveillance conducted under the FAA. The motion challenges the FAA surveillance "on the grounds that the government's monitoring of his communications under the statute violated the Fourth Amendment to the US Constitution as well as Article III [texts]." As declared in the motion:

The FAA violates the Fourth Amendment because it authorizes surveillance that violates the warrant clause and, independently, because it authorizes surveillance that is unreasonable. The statute also violates Article III by requiring judges to issue advisory opinions in the absence of a case or controversy. The procedural deficiencies of the FAA render the statute unconstitutional, and they render the surveillance of Mr. Muhtorov unconstitutional as well.
The motion also moves for discovery of materials that would allow Muhtorov to challenge the specific manner the FAA was used in his case.

The revelations surrounding NSA surveillance programs [JURIST backgrounder] have sparked worldwide debate and controversy. Last week the Privacy and Civil Liberties Oversight Board (PCLOB) [official website], an independent agency created by Congress to protect American privacy under anti-terrorism laws, issued a report calling the NSA's metadata program illegal and saying that it should be ended. Earlier this month US President Barack Obama announced detailed plans [JURIST report] to change surveilance policy, curbing the abilities of intelligence agencies to collect and use American phone data. Also this month the DOJ filed an appeal to a federal district court ruling that held that the NSA program is likely unconstitutional [JURIST reports]. In September the Foreign Intelligence Surveillance Court released [JURIST report] a previously classified opinion [text, PDF] explaining why an NSA program to keep records of Americans' phone calls is constitutional. Also in September the ACLU urged [JURIST report] the Obama administration to curb the FBI's surveillance powers.

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