If the government legally collects data on foreigners under a National Security Agency program, then uses the information to entrap an American, has the American’s constitutional right to be free from unreasonable search and seizure been violated? The 9th U.S. Circuit Court of Appeals in Portland is now considering a case that asks this and it is believed by some to have implications for all of us.
The issue arises from the 2013 conviction of Mohamed Mohamud, also known as the Christmas tree bomber. Mohamud is a Somali-born American who argues he was entrapped by government agents into detonating a false bomb at a Christmas tree lighting in Oregon in 2010. Arguments were heard last week before a three-judge panel at a courthouse just across the street from where the foiled Christmas tree bomb plot took place, The Washington Post reports.
Mohamud argues that evidence used against him was gathered unconstitutionally through the U.S. government’s warrantless foreign surveillance program. His attorney and other civil rights advocates say that Mohamud should not have been convicted because his conviction rests on entrapment that relies on illegally obtained evidence.
Stephen Sady, Mohamud’s federal public defender, argues that his client should be given a new trial, one in which the illegally obtained evidence would not be admitted.
Kelly Zusman, a lawyer with the U.S. Attorney’s Office in Portland, told the court that because surveillance data on foreigners is legally collected under the program, no warrant is required to query that data pool for information on Americans. “The query is not a search,” Zusman said. “It’s simply a means by which we access the information we have already lawfully acquired.”
Understanding Fine Distinctions
The government is saying that the data was already there and did not have to be obtained, merely retrieved from the NSA’s database. The agency is empowered to collect this data by the Foreign Intelligence Surveillance Act (FISA), particularly Section 702, which has been the subject of much legal dispute.
Meanwhile, civil libertarians say that warrantless search of foreign surveillance used against Americans is unconstitutional, and they argue that Section 702 has been used for sweeping searches that impact us all. While no one can predict how the court will decide this surveillance data case, which is being watched closely (pun intended), legal experts believe it is widely significant.
“The surveillance challenged in this case has implications for the privacy of all Americans. Section 702 gives the government virtually unfettered access to all the international phone calls and emails of US citizens and residents,” said Patrick Toomey, a staff attorney at the ACLU, in a statement publicized by the Christian Science Monitor.