— The case of Jamshid Muhtorov, an Uzbek immigrant imprisoned by U.S. authorities on terrorism charges could soon make legal history.
Muhtorov was arrested by the FBI in 2012 at Chicago’s O’Hare Airport as he was attempting to leave the U.S. Law enforcement authorities say he was on his way to join the Islamic Jihad Union, an Uzbek jihadist group, designated by the U.S. as a terrorist organization.
The IJU which is based in Pakistan traces its roots to the Islamic Movement of Uzbekistan. The group has a long history of violent attacks against the secular government of Uzbekistan and of involvement in attacks against coalition forces in Afghanistan.
The original criminal complaint against Muhtorov was filed in Denver where he worked as a truck driver and lived with his family. In October 2013, as Muhtorov sat in a Colorado jail awaiting trial, he was notified by the Justice Department in that his case was based on a 2008 law allowing the National Security Agency to conduct surveillance on U.S. soil without warrants. That law is officially known as the FISA Amendment Act (FAA). FISA stands for Foreign Intelligence Surveillance Act which was adopted in 1978.
Following this revelation, his lawyers, in cooperation with American Civil Liberties Union (ACLU), filed a 69-page brief
asking a federal judge to bar prosecutors from introducing evidence derived from warrantless surveillance.
Muhtorov was the first defendant to receive such a notice and is the first one to challenge it.
In an interview with VOA, ACLU staff attorney Patrick C. Toomey says that the program violates the Fourth Amendment and Article III of the US Constitution.
“We believe that even when the government is investigating activities related to terrorism, it still must comply with the Constitution and one of the most basic rules in our Constitution is the requirement that the government gets a warrant before it reads through your email, before it listens to your phone calls, before it searches your home,” said Toomey. He adds that “In the case of Muhtorov, we now know that the government did not satisfy those requirements. It did not get an individualized warrant before reading his email and listening to his international phone calls.”
The Justice Department declined to comment on the case to VOA.
The ACLU’s Toomey says the government may view the prosecution of a terror suspect as the ideal test case in which to defend warrantless wire-tapping.
“There is no doubt that the Department of Justice would rather be defending this law in the context of a terrorism prosecution rather than in the type of civil lawsuit that the ACLU brought before, but we think that Muhtorov’s case still presents a great example of an instance where the law has been misused,” said Toomey. “Because he is now sitting in court on the basis of evidence that was obtained unlawfully, he has a right to challenge the government’s use of that evidence in seeking to imprison him on the basis of those allegations that they have made in the indictment,” he said.
Muhtorov denies the charges and says he is innocent. While the US government does not allege that Muhtorov planned any attacks inside the country, it says there is enough proof that he was aiding a group that the US and its allies consider an enemy.
Experts say that the Obama administration has yet to offer an in-depth or comprehensive legal justification for the 2008 law. But, the New York Times
recently provided an analysis of a 2008 brief
, in which the Bush administration argued that the surveillance authorized by the statute met Fourth Amendment standards.
“The safeguards built into the statute provide reasonable assurance that the surveillance it authorizes will target only foreign persons outside the United States and will be conducted in a way that minimally affects the privacy of U.S. persons… The Fourth Amendment requires no more.”
ACLU representative Toomey says that if Muhtorov is successful in challenging the NSA surveillance program, it would have a profound impact on the lives of Americans and on the system which is keeping a close eye on their communications with the world.
“It would go a long way towards requiring the government to proceed on an individualized basis when it wants to invade the privacy of someone like Mr. Muhtorov, but also someone who is an ordinary American citizen,” he said.
If found guilty, Muhtorov faces 15 years in jail and a fine of up to $250,000.