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US says it will use secret surveillance evidence in court, opening door for ACLU challenge

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Supreme Court 3 (Verge Stock)
Supreme Court 3 (Verge Stock)

The United States has declared that it will use evidence from warrantless surveillance to pursue a man accused of aiding terrorists, another step towards a potential challenge to the FISA Amendments Act. A notice posted by The New York Times confirms the government's intention to prosecute Jamshid Muhtorov, charged with supporting and attempting to join the Islamic Jihad Union, using evidence obtained under the Foreign Intelligence Surveillance Act. Specifically, the notice points to Section 702, which has been used to justify the NSA and FBI's internet surveillance program.

The notification comes because of a decision earlier in October, after a debate over whether the government was required to notify criminal defendants if they were being prosecuted based on warrantless wiretaps. Solicitor General Donald Verrilli Jr. said there was no legal justification to keep this information secret, despite the fact that the Justice Department had always done so. A previous filing in Muhtorov's case stated that the FBI had collected email and phone communications before going to the courts, and now it's confirmed that some of this will be used in the trial.

As the trial proceeds, it will give the ACLU and several other organizations something they've never had before: hard proof that an individual has been watched under the FISA program. Privacy groups have been pushing lawsuits for years, but courts have so far struck them down, saying that since there's no proof anyone involved was actually surveilled, they can't say they were hurt by it. A criminal case offers a rare chance to prove real, tangible harm; since the evidence would help the prosecution, Muhtorov has a legitimate complaint if it's potentially unconstitutional.