US Terrorist Conviction Appealed Over Use of NSA Data (independent.co.uk)

The Independent newspaper reports that the warrantless NSA surveillance programs revealed by Edward Snowden are facing a constitutional challenge in court for the first time: Lawyers for Mohamed Mohamud have argued that surveillance evidence used to convict the Somali-American man, found guilty of plotting to bomb a Christmas tree-lighting ceremony, was gathered in a manner that was unconstitutional. The lawyers laid out their arguments on Wednesday before a panel of judges of the 9th US Circuit Court of Appeals in Portland, close to the plaza where Mohamud tried detonating a fake bomb that was part of an undercover operation...

Stephen Sady, Mohamud's lawyer, urged the court to grant his client a new trial on the grounds that the evidence used against Mohamud should never have been permitted in the courtroom. Mr Sady told the judges that using surveillance information on foreigners, which does not require a warrant, to spy on any Americans they communicate with was "an incredible diminution of the privacy rights of all Americans⦠That is a step that should never be taken."
Last year saw a record number of wiretaps authorized by state and federal judges -- 4,148, more than twice as many as the 1,773 that took place in 2005 -- and not a single request was rejected. (More than 95% were for cellphones, and 81% for narcotics investigations.) But The Independent notes that U.S. law enforcement officials have admitted they also "incidentally" collect information about Americans without a warrant, and then sometimes later use that information in criminal investigations. In Mohamud's case, which dates back to 2010, "There's no doubt he tried to explode a car bomb in America," writes Slashdot reader Bruce66423, arguing that this case "elegantly demonstrates the issue of how far legal rights should overwhelm common sense."

Comments

Re:technicality

[Rakshasa Taisab]

The bomb was fake, so obviously he didn't attempt to kill Americans.

Re:technicality

[mrclevesque]

Yup.

"The bomb Mohamud had tried to detonate was fake. The test explosion was staged. There was no secret council of militant leaders seeking a gifted Somali-American teenager to wage jihad. Youssef and Hussein were undercover FBI agents."

https://www.buzzfeed.com/nicol...

As a matter of fact...

[Anonymous Coward]

No - trying to blow people up is not unconstitutional.
No - murder is not unconstitutional.

Most of the constitution deals specifically with the form our government takes, such as the three branches of our government.
Generally, when most people talk about unconstitutional, they are talking about our constitutional rights, such as the freedom of speech.

What the constitution does does is establish the process by which federal, state and local governments can enact legislation that makes things like 'trying to blow people up' and 'murder' illegal, not unconstitutional.

This is a good thing because by and large the constitution does not lay out any penalties for violating constitutional rights. Ask yourself, what is the penalty for the government violating your right to free speech?

So if you 'try to blow people up,' that is illegal. In order to punish someone for that crime, the government must prove beyond a reasonable doubt that you committed the crime pursuant to the constitutional rights of the accused, such as trial by jury and due process.

If the government violates the constitutional rights of the accused, then evidence can be tossed and convictions can be overturned.

Re:technicality

[slashdot_commentator]

I am sort of in agreement with what you say, but you are phrasing things so incorrectly, you're still distorting the meaning of entrapment.

Entrapment is when the government agents make you commit a crime that you weren't otherwise willing to do.

This is wrong. Obviously, if gov't agents "make" you commit a crime, that's entrapment. But the lack of overt coercion does not mean the agents have a clean indictment. The standard is, "you would not have committed the crime without the active inducement by law enforcement to commit the crime".

Ifs not entrapment to merely ask, "Hey, are you willing to commit a crime?". But once law enforcement goes beyond that point they risk sabotaging the legal case. If they "hand you tools" which would otherwise be beyond the ability or inclination of the perpetrator to make/acquire, that's still entrapment. Also, if they paid you "a lot" of money, which they knew you needed for medical treatment of a loved one, that would be considered "entrapment", because those agents, knowing how desperate the target was, induced the target to commit a crime society would normally believe they would not do. If the crime was murder, it would not be considered entrapment, because no normal citizen would consider committing murder for money. If the crime was fraud, that's a lot easier to argue entrapment, if the perpetrator was "induced" to do something they normally would not do.

Speaking out of this context, I really don't appreciate the legal argument these defense lawyers are trying to make. The argument, as far as I can tell, is not entrapment. They are arguing that the evidence collected via FISA wiretaps should be inadmissible, because the defendant has American citizenship but the person he was talking to was not a citizen, thus the conversation required a warrant to be admissible. Given how the SCotUS has gone roughshod on standards, allowing evidence even when it originated from an "accidentally" improper manner, the defense team will probably lose, and set precedent to further erode the legal rights of American citizens.