Sunday, October 27, 2013

Government Notifies Defendant of Warrantless Wiretap, Tees Up Challenge

The Department of Justice for the first time notified a criminal defendant that evidence against him was obtained through a warrantless wiretap, according to the New York Times.  The move gives the criminal defendant the standing to challenge warrantless wiretapes that the plaintiffs in Clapper v. Amnesty International lacked and invites his challenge of warrantless wiretaps.  Our previous post on the issue is here.

The defendant, Jamshid Muhtorov, is charged with "provid[ing] and attempt[ing] to provide material support and resources, to wit: personnel . . . to a foreign terrorist organization, specifically the Islamic Jihad Union . . . knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States" in violation of 18 U.S.C. Sec. 2339B.  The notice says that the government

hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. Secs. 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 . . . .

The Supreme Court held that the plaintiffs in Clapper lacked standing to challenge warrantless wiretaps, because they couldn't show that they'd been, or would be, wiretapped under the specific statutory authority they sought to challenge.  Now that the government has disclosed that its evidence resulted from warrantless wiretaps, Muhtorov has clear standing to challenge the wiretaps. 

This merely puts the legality of the wiretaps before the courts; it doesn't answer the underlying question.  For that, we'll have to await the ruling and appeals.

http://lawprofessors.typepad.com/conlaw/2013/10/government-notifies-defendant-of-warrantless-wiretap-tees-up-challenge.html

Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Fourth Amendment, Fundamental Rights, News | Permalink

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