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Mohamed Mohamud, after being sentenced to 30 years in prison on Oct. 1, 2014. Courtroom sketch by Abigail Marble.
Mike Zacchino | The Oregonian/OregonLive
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Bryan Denson | The Oregonian/OregonLive By Bryan Denson | The Oregonian/OregonLive
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on August 12, 2015 at 5:00 AM, updated August 12, 2015 at 5:01 AM
The U.S. spy operations that once put Portland terrorist Mohamed Mohamud under FBI surveillance violated his constitutional right against unlawful search and seizure, two civil liberties groups contend in a federal appeals court filing.
Lawyers for the ACLU and Electronic Frontier Foundation recently filed a friend-of-the-court brief on behalf of Mohamud, who has appealed his 30-year-sentence for trying to detonate a bomb in downtown Portland four years ago.
They have joined Mohamud's legal team in denouncing a law that has allowed the National Security Agency to collect troves of overseas communications by Americans through the Foreign Intelligence Surveillance Court. The FISA Amendments Act of 2008 provided the legal justification for the massive NSA surveillance programs exposed two years ago by Edward Snowden.
To identify foreign terrorists, the U.S. has secretly collected records of communications between untold numbers of Americans and tens of thousands of people overseas. While the targets of those queries are foreign agents, the civil liberties groups wrote that the government has sometimes performed "backdoor searches," poring through electronic repositories of phone calls, emails and texts for information about U.S. citizens such as Mohamud.
That violated Mohamud's Fourth Amendment rights, they argue.
His lawyers filed an opening brief with the 9th U.S. Circuit Court of Appeals this spring, opening the door for what is expected to be the nation's first appellate review of a criminal conviction resulting from the law.
Their brief totaled 256 pages, and the court's commissioner ordered them to produce a slimmer version – no more than 180 pages – by this Friday.
Government lawyers have until Dec. 7 to file their reply. Assistant U.S. Attorney Ethan D. Knight, lead prosecutor in Mohamud's criminal case, declined to comment on the appeal because it is pending.
Lawyers have been arguing about Mohamud's case since the last Monday in November 2010, three days after he tried to detonate what he thought was a massive fertilizer bomb supplied by al-Qaida terrorists. The explosive was packed in a van near Pioneer Courthouse Square, where thousands of people gathered for Portland's holiday tree-lighting ceremony.
The latest brief filed by Mohamud's lawyers describes his actions that night:
"He pushed the buttons of a cellphone, twice, believing they would cause the explosion of a massive, nail-filled bomb capable of eliminating at least two city blocks. ... The bomb was a fake, created by the Federal Bureau of Investigation (FBI) as the culmination of a sting operation they had started over a year earlier.
"The defense at trial was entrapment: that the government had induced this teenager to attempt a crime he was not predisposed to commit."
Mohamud was 19 at the time.
On Jan. 31, 2013, a jury before Senior U.S. District Judge Garr M. King found Mohamud guilty of attempted use of a weapon of mass destruction, a charge that carried a potential life sentence. King sentenced him last October to 30 years in prison, and his lawyers filed a notice of appeal eight days later.
Ten months later, the Department of Justice filed a court notice saying that the government had obtained permission – under the FISA Amendments Act – to eavesdrop and collect evidence on Mohamud.
The 7-year-old law has allowed the NSA to vacuum up millions of ordinary Americans' telephone records. But it also has played a significant role in identifying and disrupting foreign spies and terrorists, national security experts say.
The Foreign Intelligence Surveillance Court, which signed orders that allowed the U.S. to eavesdrop on Mohamud, is the most secretive court in the land. Its written orders, unlike standard wiretap warrants, are classified and not disclosed to the defense. So Mohamud's lawyers never fully understood how the FBI came to investigate their client as a potential terrorist.
As Mohamud sits in a federal prison in Victorville, California, his lawyers hope to persuade the appeals court to reverse his conviction and send the case back to Portland for dismissal or a new trial. As an alternative, they are asking the appeals court to vacate their client's sentence and send it back to U.S. District Court for evidentiary hearings or resentencing.
Mohamud's lawyers raise 11 key issues in their appeal, pointing out that King had repeatedly turned down their requests for classified evidence. For instance, they wrote that the judge allowed the FBI's two key witnesses – undercover agents – to use their pseudonyms and wear light disguises as they testified before the jury.
But their main point, the one that will keep national security scholars buzzing until the 9th Circuit rules in the Mohamud case, is the assertion that the FISA Amendments Act is illegal.
One of those watching most closely is Tung Yin, a Lewis & Clark Law School professor who specializes in national security matters.
"We shouldn't be putting someone in prison for 30 years if that conviction resulted in significant part from evidence that the government should not have had, which is what this case would determine," said Yin.
Retired Federal Public Defender Steven T. Wax, who served on Mohamud's defense team and now works on his appellate team, said the government's use of the FISA Amendments Act should lead to reversal of his client's conviction. He remains troubled that the government might still possess classified evidence that could have helped Mohamud's case.
"The way our system should work, the government is obligated by law to provide notice," he said. "They did not. That's a fundamental failing that should lead to throwing out the conviction."
-- Bryan Denson
bdenson@oregonian.com
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