- Associated Press - Wednesday, June 4, 2014

PORTLAND, Ore. (AP) - The defense team of a man convicted of terrorism in Oregon is seeking to challenge both his conviction and the government’s secret, warrantless searches of Americans’ communications collected as part of foreign surveillance.

The Oregon federal court challenge to the government program of bulk data collection joins other such challenges around the country. They are mostly from terrorism defendants who seek new trials or dismissals because the government notified them after trial that it used information derived from foreign surveillance without notifying the defense.

The Justice Department last year pledged to review certain terrorism cases to provide a clearer picture of how classified evidence against defendants was gathered. In a Brooklyn terrorism case, a man was already sentenced to 15 years in prison when prosecutors notified him of its use of foreign surveillance.

On Wednesday morning, attorneys for Mohamed Mohamud said he should be acquitted or granted a new trial because of the government’s use of the secret surveillance program. Mohamud was convicted last year of attempting to detonate a bomb at Portland’s Christmas tree-lighting ceremony in 2010.

The purported plot was actually an FBI sting and the bomb was a fake.

Federal public defender Steven Wax likened the government’s searches of Mohamud’s communications to a seizure of luggage - authorities can grab the bags, but they need a warrant to look inside. In Mohamud’s case, Wax said, federal agents needed to obtain a separate warrant to search his emails and phone calls.

Mohamud’s attorneys argued prosecutors failed to notify Mohamud’s attorneys of the use of information derived under the U.S. Foreign Intelligence Surveillance Act until Mohamud had already been convicted.

That failure, they say, withheld important information from the defense team and violated Mohamud’s constitutional rights.

Prosecutors responded in court filings that they didn’t disclose any new information when they informed Mohamud’s defense team of the surveillance in November. They also said the U.S. Justice Department didn’t order the disclosure of such use of surveillance until after Mohamud’s conviction.

Assistant U.S. Attorney Ethan Knight said Wednesday the challenge from Mohamud’s attorneys should focus on his case, not the broader data collection program.

“This is not the time, the place or arguably the branch of government to take this question,” Knight said.

For the surveillance programs, changes could be afoot. Under NSA surveillance programs that contractor Edward Snowden revealed, the agency sweeps up information about Internet data and email traffic

That information is stored at NSA facilities until a secret court known as the Foreign Intelligence Surveillance Court gives intelligence officers permission to examine them.

Since its inception in 1978, no defense attorney had been allowed access to those files. But in January, U.S. District Judge Sharon Johnson Coleman allowed the defense team of a 20-year-old Chicago man to vet FISA papers. Before the attorneys saw anything, prosecutors appealed, and argued Wednesday against such a ruling before a three-judge panel at the 7th U.S. Circuit Court of Appeals in Chicago.


Associated Press writers Eileen Sullivan and Ken Dilanian contributed to this report.


Reach reporter Nigel Duara on Twitter at https://www.twitter.com/nigelduara

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