AG Awards Raise Questions About|Tactics of the War on Terror

     PORTLAND, Ore. (CN) – The team of U.S. Attorneys that secured the conviction of the teenage “Christmas tree bomber” scored awards for their work on the case – despite criticism from civil rights advocates saying the government’s methods in the case violated the Constitution.
     A pending appeal in the case will also be the first challenge of a criminal conviction obtained through the use of data collected under the Foreign Intelligence Surveillance Court Amendments Act of 2008.
     Mohamed Mohamud was a student at Oregon State University when he met two FBI agents posing as terrorist recruiters. In November 2010, the 19-year-old dialed a cellphone number he believed would detonate a bomb in a van in downtown Portland as thousands of the city’s residents were attending the annual Christmas tree lighting ceremony.
     Mohamud’s lawyers say he was 17 when the government began its surveillance of him.
     Attorney General Loretta Lynch last week presented the “Attorney General’s Award for Excellence in Furthering the Interests of U.S. National Security” to the prosecutors, undercover agents and assistants on the trial team for the case against Mohamud.
     Acting U.S. Attorney Billy J. Williams said in a press release that the 2014 jury conviction of Mohamud “affirmed the validity of terrorism sting investigations.”
     Mohamud filed an appeal with the Ninth Circuit in May, challenging his conviction and 30-year sentence. His case is expected to be the first appellate review of the legality of the government’s use of the FISA laws to obtain a criminal conviction.
     He claimed that the government wrongly told the jury that entrapment could not apply in a terror case and that the law only requires proof that he could have engaged in “similar conduct” without interference from the undercover agents, rather than the actual requirement that the government prove that he was predisposed to commit the exact charged offense without being talked into such actions.
     The government also used bulk data collecting under the FISA Amendments Act to intercept vast amounts of Mohamud’s text messages, emails and telephone calls, then declassified only a selective portion and refused to release surveillance that would have helped Mohamud show his lack of intent, preparation or planning of the attempted bombing, the appeal states.
     Senior U.S. District Judge Garr M. King refused to suppress that evidence during trial, shirked his duty to perform judicial review of the government’s information gathering on Mohamud and refused to even hold a hearing to review the constitutionality of the surveillance, according to the appeal.
     Before Mohamud, eight other people had raised entrapment defenses in FBI terror stings; all were convicted.
     In August, the American Civil Liberties Union and the Electronic Frontier Foundation filed a brief on Mohamud’s behalf, contending that the FBI surveillance that caught him illegally targeted a U.S. citizen using laws that were intended to expose foreign agents and violated his constitutional right against unlawful search and seizure.
     Andrew Crocker, staff attorney with the Electronic Frontier Foundation, said Mohamud’s case is one of just a few where a defendant in a criminal case might be able to challenge the secret governmental surveillance programs exposed by Edward Snowden.
     “This is one of a handful of cases where a criminal defendant has received notice that the FISA Act contributed to his conviction,” Crocker said. “This didn’t happen until after the Snowden revelations and after the Supreme Court said these cases were not immune to challenge. After the Snowden revelations, they started reevaluating and notifying some defendants, one of whom was Mohamud. But that came after his conviction. He should have been notified beforehand so that he could have used that evidence in his case.”
     Jameel Jaffer, lawyer for the American Civil Liberties Union Foundation, agreed.
     “This case is especially important because there aren’t really any other plaintiffs for whom this kind of surveillance will be subject to judicial review,” Jaffer said.
     “In civil cases, plaintiffs have no standing to sue unless they can show that their communications were monitored, which is a showing that nobody can make,” Jaffer said. “Criminal cases are the only context where this gets subject to meaningful judicial review. And it’s one of only a handful of criminal cases where the government has disclosed its surveillance because the government doesn’t ordinarily say whose communications they are monitoring.”
     “I don’t think anyone would question that one purpose of the FISA Amendments Act was to go after terrorism,” Crocker said. “But one big issue that we have with it is the question of how those laws being used. Just because the government is fighting terrorism doesn’t mean they have authorization to do whatever they want. These laws are implemented in such a secret way, we don’t know if the government is going after terrorism in a way that is legitimate.”
     “It’s not like the government is only monitoring the communications of suspected terrorists,” Jaffer said. “The government is sweeping up the communications of millions of Americans every year. And that kind of surveillance is not consistent with the Fourth Amendment.”
     Lynch presented the award to a total of 309 people in Wednesday’s ceremony in Washington, including the federal investigators who launched the criminal and civil investigations into the Ferguson Police Department in the wake of the shooting death of 18-year-old Michael Brown in Missouri; the team who shut down the booming bitcoin market on the black market website Silk Road; and the prosecutors who secured convictions against the Blackwater contractors who in 2007 gunned down 14 innocent Iraqis.

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