POSTED BY Edwin Batista

On Friday, October 25, 2013 the Justice Department gave notice that it was going to use information obtained from acquisition of foreign intelligence information authorized under the Foreign Intelligence Surveillance Act against suspected terrorist Jamshid Muhtorov. Muhtorov was charged with providing material support to the Islamic Jihad Union, a known foreign terrorist organization, in 2012. This is the first time since 2008, when the Foreign Intelligence Surveillance Act was signed into law, that the government has admitted to using surveillance obtained from the law in a criminal prosecution.

Muhtorov was arrested in 2012 on suspicion that he was trying to participate in a terrorist attack after the FBI intercepted an email from his accounts allegedly sent to the Islamic Jihad Union.  The Supreme Court has held that if the government intends to use electronic information obtained under the Foreign Intelligence Surveillance Act in a judicial proceeding, it must provide advance notice and the accused may challenge the lawfulness of the acquisition. The Justice department has fulfilled its duty of providing advance notice that it will be using electronic information obtained under the act against Muhtorov and Muhtorov’s lawyers will be allowed to file a motion to suppress the evidence and challenge the validity of the government’s authority to perform surveillance on the international communications of its citizens.

The Justice Department’s filing constitutionality will most likely be challenged.  If the act is upheld, it will give the Justice Department another powerful tool to stop terrorism before it can strike but will likely produce some unintended consequences. Citizens may censure their legitimate conversation with people outside of the United States for fear that such conversation may be misconstrued and may lead to an invasion of their privacy and possible issues with law enforcement.