Lawyers for a young Portland man convicted of trying to blow up a Christmas tree ceremony are asking a judge to order the Justice Department to open its files and share "facts and circumstances" of electronic surveillance that prosecutors disclosed only months after his conviction.
Federal public defenders Stephen Sady and Lisa Hay argue the government violated the FISA Amendments Act through its late notice and thus "the starting point" for the court should be to force DOJ to hand over a vast swath of sensitive materials.
Their 66-page court brief could foreshadow a bid to suppress evidence against Mohamed Osman Mohamud and ultimately to request a new trial for the young man convicted of attempting to detonate a weapon of mass destruction in the throes of radicalism. U.S. district Judge Garr King indefinitely delayed Mohamud's sentencing after federal prosecutors announced in November they had used now controversial surveillance practices to help build their case.
The new defense brief also sets up a possible constitutional challenge to that surveillance law. Plaintiffs in other cases could not proceed with their lawsuits because they couldn't demonstrate they had been subjected to and harmed by the snooping; a hurdle the Justice Department removed for Mohamud.
The latest development also signals Mohamud's lawyers will explore whether the withheld evidence "tainted pretrial motions or defenses at trial," ushering the Justice Department into yet another fight about its evidence sharing lapses.
"The public record strongly demonstrates that the failure to provide the statutorily required pretrial notice in the present case resulted from a secret and deliberate policy that led to the routine practice of violating the statute," Sady and Hay write.
Mohamud, an American citizen of Somali descent, communicated with others as a youth in London, by email from Oregon with another person overseas, and via email from the U.S. with propagandist Samir Khan, an American who died in a drone strike in Yemen alongside radical cleric Anwar al Aulaqi, the lawyers say. They want to know how and when the government started monitoring him, not just under the FISA Amendments Act, but also email and phone metadata surveillance.
So the lawyers are demanding more information about the details of U.S. snooping and the procedures in place for handling U.S. person data between 2007 and 2010, during periods when the secret Foreign Intelligence Surveillance Court said the snooping went out of bounds and exceeded the scope of the law.