WASHINGTON – The Justice Department says for the first time that it intends to use information gained from one of the National Security Agency’s warrantless surveillance programs against an accused terrorist, setting the stage for a likely Supreme Court test of the Obama administration’s approach to national security.
The high court so far has turned aside challenges to the law on government surveillance on the grounds that people who bring such lawsuits have no evidence they are being targeted.
Jamshid Muhtorov was accused in 2012 of providing material support to the Islamic Jihad Union, an Uzbek terrorist organization that, authorities say, was engaging NATO coalition and U.S. forces in Afghanistan.
According to court papers in the case, the FBI investigated Muhtorov after his communications with an overseas website administrator for the IJU.
In a court filing Friday, the government said it intends to offer into evidence in Muhtorov’s case “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978.”
Last February, a sharply divided Supreme Court ruled in a 5-4 vote that a group of American lawyers, journalists and organizations could not sue to challenge the 2008 expansion of the law. The court said those who sued could not show that the government would monitor their communications along with those of potential foreign terrorist and intelligence targets.
Last month, Supreme Court Justice Antonin Scalia, who had ruled with the majority in the earlier 5-4 decision, said the courts ultimately would have to determine the legality of the NSA surveillance program.
Justice Department spokesman Brian Fallon declined comment Saturday on the new development beyond the court filing.
The FBI also went to court to obtain communications originating from Muhtorov’s phone lines. In one call, Muhtorov told an associate that the Islamic Jihad Union said it needed support, an FBI agent said in an affidavit filed in the case. The associate warned Muhtorov to be careful about talking about a founder of group, the affidavit stated.
Muhtorov, a refugee from Uzbekistan, resettled in Aurora, Colo., in 2007 with the help of the United Nations and the U.S. government. He was arrested Jan. 21, 2012, in Chicago with about $2,800 in cash, two shrink-wrapped iPhones and an iPad as well as a GPS device.
In March 2012, Muhtorov’s attorney, federal public defender Brian Leedy, said at a court hearing that Muhtorov denied the allegations and had been headed to the Uzbekistan region to visit family, including a sister who remains imprisoned in that country.
The IJU first conducted attacks in 2004, targeting a bazaar and police, and killing 47 people, according to court papers in the case. The organization subsequently carried out suicide bombings of the U.S. and Israeli embassies and the Uzbekistani prosecutor general’s office in Tashkent, Uzbekistan, the court papers stated.