On Wednesday, Mohamed Mohamud’s attorneys argued in the 9th U.S. Circuit Court of Appeals that warrantless taping of the defendant deprived him of a fair trial and infringed his constitutional rights. Mahmud was convicted for trying to set off a car bomb at Portland’s holiday tree-lighting ceremony in 2010.
He was arrested by the FBI before carrying out his plan and sentenced to 30 years in federal prison and lifetime surveillance.
But the defense attorneys claim that this was a clear case of government overreach since the FBI knew about the Muslim man’s intentions from illegal wiretaps done by the National Security Agency.
It is the first time an federal appeals court reviews a criminal conviction due to claims that the surveillance was warrantless under the Foreign Intelligence Surveillance Amendments Act. Attorney Patrick Toomey, who filed an amicus brief in the case, urged the court to rule the surveillance unconstitutional.
Toomey argued that when federal agents amassed a monster database of Mohamud’s and other Americans’ private communications, they deprived them of their Fourth Amendment rights.
Toomey also explained that the FBI sifts through the database when it investigates specific Americans, which is exactly what happened with Mohamud.
Mohamud, 25, was born in Somalia but he became U.S. citizen through naturalization. He was 19 years old when he plotted the attack, and was convicted in 2013. He is still incarcerated and was not present at this Wednesday’s hearing.
One judge, however, couldn’t grasp the paradox of deeming illegal the act of looking at something that was “procured” legally. In NSA and other federal agencies’ opinion, mass surveillance is necessary to counter terrorist acts done by foreigners on U.S. soil.
However, in Mohamud is not about a foreign terrorist but a domestic one. So, defense attorneys challenged in court the “backdoor searchers” done by federal investigators when it comes to U.S. citizens.
Toomey added that federal agents do not shy away from looking at Americans’ texts, phone calls, and emails during investigations. He believes that the government should at least try to obtain a warrant from a judge before accessing the NSA database in each particular case.
“This would not represent a radical change.”
the lawyer said.
During the hearing, Toomey also noted that Mohamud’s trial was tainted by constitutional errors such as allowing federal agents to testify without disclosing their identities, which made background checks of the said agents and witnesses impossible.
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