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Friday, June 14, 2024 | Back issues
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Fort Dix Five Lose Bid to Toss Terror Convictions

PHILADELPHIA (CN) - Five men convicted of plotting a violent Jihadist attack against the Fort Dix military base cannot overturn their sentences, the 3rd Circuit ruled, rejecting claims that the Foreign Intelligence Surveillance Act is unconstitutional.

Jurors convicted the Fort Dix Five after a three-week December 2008 trial in which prosecutors presented a trove of wiretaps indicating that the men were planning to shoot up the sprawling Fort Dix military base in southern New Jersey.

FBI agents staged a sting operation in May 2007 to arrest the men as they tried to buy machine guns and assault rifles. Investigators had been watching the group since January 2006, when the FBI obtained a videotape of the men that had been brought to a Circuit City store for copying.

That video depicted men shooting guns in Pennsylvania's Pocono Mountains and shouting, "Allah Akbar!" and "Jihad in the States."

Jordanian-born Mohamad Shnewer and three Albanian brothers - Dritan, Eljvir and Shain Duka - received life sentences.

A fifth man, Turkish-born Serdar Tatar, was sentenced to 33 years in prison.

On appeal, the defendants argued that wiretaps used by prosecutors as evidence throughout the trial were tainted because they were procured under the Foreign Intelligence Surveillance Act (FISA), which was unconstitutionally revised by the Patriot Act in 2001.

Prior to that revision, law-enforcement officials seeking a FISA surveillance warrant had to show that "obtain[ing] foreign intelligence information" was the "primary purpose" of the surveillance.

Under the 2001 Patriot Act revision, however, investigators now merely need to show that foreign intelligence gathering constitutes a "significant purpose" of the requested FISA warrant.

The defendants argued that the "significant purpose" test violates the Fourth Amendment because it does not reasonably balance an individual's privacy interest with the government's interest in conducting foreign surveillance.

They said the FISA warrant-procurement process unconstitutionally allows investigators to receive surveillance warrants without subjecting their requests to the constitutional strictures imposed on requests for non-FISA warrants.

While there are exceptions, to obtain non-FISA warrants, investigators must demonstrate probable cause that a crime has been committed; must describe with particularity the conversation investigators intend to intercept; and must notify the subject of the surveillance after the surveillance has been terminated.

"The 'significant purpose' requirement allows law enforcement officers and the government to violate an individual's Fourth Amendment right against illegal searches by failing to require a valid warrant based on probable cause ... notification, and particularity," according to the defendants' brief.

They said prosecutors relied on tainted wiretaps that were procured through the unconstitutional FISA warrant process.

"Without such illegally obtained evidence the government cannot prove the elements of the charges against the defendants for which they have been convicted," the brief states.

A three-judge panel of the 3rd Circuit rejected that facial challenge last week, finding that the "significant purpose" test does not violate the Fourth Amendment's prohibition against "unreasonable searches and seizures."

"Reasonableness" is the benchmark for determining the constitutionality of a statutory warrant-procurement process, the court held, citing Supreme Court precedent.

"What is reasonable, in turn, depends on the nature of the search," Judge Marjorie Rendell wrote for the panel.

In determining whether the process is reasonable, "the government's interests in security and intelligence are entitled to particular deference."

The Supreme Court has suggested that "congressional judgment" plays an important role in determining what should be considered reasonable with respect to the constitutionality of intelligence-gathering protocol, and Congress has adopted the FISA revision at issue in the Fort Dix case, Rendell noted.

"Second, even leaving Congress's judgment aside, we conclude that FISA's 'significant purpose' standard is reasonable in light of the government's legitimate national security goals," the 57-page decision states.

Precedent from the 2nd Circuit holds that, "when the risk is the jeopardy to hundreds of human lives and millions of dollars of property ... that danger alone meets the test of reasonableness," Rendell added.

The panel also described procedural FISA safeguards against abuse, noting that senior Justice Department officials must approve every application for a FISA warrant, which are then reviewed and refined by a judge on the FISA court.

"FISA's amended 'significant purpose' requirement is reasonable under the Fourth Amendment, and, therefore, the government's use of FISA-derived evidence in its case against defendants was lawful," Rendell wrote.

Even if it had found the FISA warrant process unconstitutional, the panel said it would not have ordered reversals of the defendants' convictions.

"Where, as here, the challenged search was conducted in objectively reasonable reliance on a duly authorized statute, the Supreme Court has held that" the fruits of the search may still be admitted as evidence, the opinion states.

U.S. District Court Judge Robert Kugler was also right to admit evidence of beheading videos that the defendants viewed and extensively discussed, according to the panel.

Dritan Duka's attorney, Michael Huff, called the videos "highly prejudicial" during oral argument. "There's no evidence in this case that defendants ever intended to use decapitation," he said.

Assistant U.S. Attorney Norman Gross countered that the videos had significant probative value.

The videos "show what's going on inside the heads of these defendants," Gross said. "They trained themselves watching these videos over and over again. ... What we wanted to show is how the defendants trained themselves so they could commit cold-blooded murder."

The appellate judges agreed that the trial court "reasonably assessed the videos' relevance and probative value and took appropriate steps to mitigate their prejudicial impact."

The panel overturned a single aspect of the case: Mohamed Shnewer's conviction for attempting to possess a firearm in furtherance of a crime.

Though the government cited federal code as the purported basis for that charge, the panel found that the code does not, in fact, contain an explicit provision allowing a person to be charged for attempted possession.

While Shnewer shook off the 360-month sentence for that crime, he still faces life for conspiring to murder American military personnel. The panel affirmed that conviction.

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