SurveillancePortland’s Christmas Bomber challenges NSA-gathered evidence used to convict him

Mohamed Mohamud, a Somali immigrant and former Oregon State University student, was convicted last year of attempting to detonate a bomb in 2010 near Portland’s Christmas holiday tree-lighting ceremony at Pioneer Courthouse Square. His lawyers are questioning the legality of evidence used against him.

Mohamud still awaits sentencing, but three months ago, prosecutors said that the case against Mohamud may have been built using information collected through warrantless surveillance under the Foreign Intelligence Surveillance Act amendments of 2008. Nine months after Edward Snowden released details on classified government surveillance operations, attorneys for Mohamud are claiming that the evidence used was obtained without a warrant and should have been barred by the court.

Willamette Week reports that court filings on 13 January 2013 by Mohamud’s defense team called the government’s actions a “knowing and intentional” violation of the law. Patrick Toomey, a staff attorney with the National Security Project of the American Civil Liberties Union considers the timing of Mohamud’s to be perfect owing to the growing concerns of Americans regarding government invasion of privacy. “No court has yet challenged the constitutionality of the law,” says Toomey. “I think you’ll see a lot of attention focused on the Oregon case.”

Mohamud planned to detonate a bomb which, in reality, was a harmless device provided by undercover agents. The defense failed to convince a federal jury that FBI agents entrapped Mohamud, despite e-mails by FBI agents that Mohamud was a “conflicted/manipulate kid,” with the FBI all the while providing Mohamud rent money and encouragement. The defense claims that recent disclosure of the government’s use of warrantless surveillance and the defense’s lack of knowledge of the surveillance denied Mohamud the right to challenge the evidence.

The Justice Department in October 2013 reported that warrantless wiretapping was used in a Colorado case involving a man accused of trying to support Islamic Jihad Union, a terror group based in Uzbekistan. Lawyers in that case will challenge the legality of the surveillance methods when the case goes to trial ((see “A first: Constitutionality of NSA warrantless surveillance challenged by terrorism suspect,” HSNW, 30 January 2014).  

According to Joshua Dratel, chairman of the national security committee of the National Association of Criminal Defense Lawyers, “the government has never been forced, in a FISA context, to describe their process in meticulous detail. It’s an uneven playing field tilted in the government’s favor.”

Mohamud’s case may offer an advantage to defense attorneys in similar cases. In its 66-page memo, Mohamud’s defense team says “the need for secrecy has been reduced by the Snowden disclosures…. Prior to trial, the mass collection of telephone and Internet content and metadata was speculative; now it is fact.”

Carrie Leonetti, an associate professor at the University of Oregon’s School of Law, says secret surveillance gives the government incentive “to play fast and loose with the rules.”

“Any vehicle to challenge the warrantless surveillance we now know the government engaged in,” she says, “is a rare and important thing.”