In a brief filed Wednesday, lawyers for the Jamshid Muhtorov asked a federal judge to bar prosecutors from introducing evidence gained from warrantless surveillance by the National Security Agency, arguing the program, conducted under the FISA Amendments Act of 2008, violates the Fourth Amendment, the New York Times reported Wednesday.
Muhtorov, a permanent resident in the United States legally, is accused of planning to travel to join an Islamist terrorist group in his native Uzbekistan. In October, the Justice Department notified him prosecutors planned to use evidence against him that was obtained from warrantless surveillance conducted under the 2008 law.
While the government has been using the law to conduct surveillance for more than five years, the Supreme Court has never ruled on its constitutionality.
"The fruits of the government's surveillance of Mr. Muhtorov must be suppressed because the statute that authorized the surveillance is unconstitutional," the motion said.
After questions were raised about whether the Justice Department was notifying defendants that evidence against them could have come from warrantless searches, the department changed its policy and prosecutors began combing case files to see who should be belatedly notified, the Times said.
In October, Muhtorov, who is awaiting trial, was the first defendant to receive such a notice. In November, the department notified a defendant in Oregon, Mohamed Osman Mohamud, who was convicted of attempting to detonate a bomb at a Christmas tree lighting ceremony in an FBI sting, but hasn't been sentenced.
They are the only two defendants to receive the disclosure, but a Justice Department official said the review was ongoing, the Times said.
Muhtorov's motion and a motion filed earlier in January by Mohamud's lawyers, seek discovery orders in which judges would require the Justice Department to turn over more information about the context of the surveillance and which evidence was derived from it.