NSA Surveillance: A New Door to Court Challenges?


A Brooklyn man in prison for terrorism may have a new opportunity to challenge his conviction because the government only recently told him how it obtained evidence it intended to use against him. It was through one of the National Security Agency’s secret surveillance programs.

On Monday, the government notified Albanian citizen Agron Hasbajrami it had intended to use information from the warrantless surveillance program — something that federal law required him to be told in September 2011. Hasbajrami pleaded guilty in 2012 to a terrorism charge after admitting he tried to go to Pakistan to join a radical jihadist insurgent group. He was sentenced to 15 years in prison.

This week’s notice is the third of its kind since the Justice Department last year pledged to review certain terrorism cases in order to provide a clearer picture of how classified evidence against defendants was gathered. Hasbajrami’s is the first closed case in which such a notification was provided.

The new policy is one of the ripple effects from disclosures last year by former NSA systems analyst Edward Snowden. The Snowden leaks have prompted major reviews of the programs that collected and examined billions of electronic and telephone communications. President Barack Obama is considering reforms.

It’s unclear what impact these after-the-fact notifications will have on criminal cases in U.S. courts — and how many cases could be affected.

In its letter to Hasbajrami, the government said the notification that it used additional warrantless surveillance against him is not necessarily grounds for him to withdraw his guilty plea or challenge his conviction. But that could ultimately be up to a judge to decide.

“The new filings show that warrantless surveillance has played a role in more criminal cases than the government has ever before admitted, and that it has been improperly withholding that fact from defendants for years,” said Patrick Toomey, an attorney in the American Civil Liberties Union National Security Project.

Last year, Snowden leaked documents that revealed the extent of some of the surveillance, including one program begun in 2008 that allows the government to read or listen to communications of non-Americans located outside the U.S. for counterterrorism purposes.

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