Unprecedented Notice of Warrantless Wiretapping in a Closed Case

JURIST Guest Columnist Ramzi Kassem of the CUNY School of Law argues that a notice of warrantless wiretapping could lead to the reopening of criminal cases ...

Late February brought some downright fascinating developments in the Agron Hasbajrami case. Hasbajrami had pleaded guilty in April 2012 before a federal judge in Brooklyn to attempting to provide material support to a "designated foreign terrorist organization." He was sentenced in January 2013 to 15 years in prison for the offense, and will be deported from the United States, most likely to his native Albania, after he has served his sentence.

In a pair of filings the US government late last month informed Hasbajrami and the federal judge in Brooklyn presiding over his pending habeas corpus case that the criminal case against Hasbajrami was built, at least in part, on evidence collected under the Foreign Intelligence Surveillance Act (FISA) Amendments Act [PDF]—that is to say, evidence derived from what is known in popular parlance as the government's warrantless surveillance program. The implications of this disclosure for the future course of the Hasbajrami case could be quite significant.

Thanks in part to Edward Snowden, the public now knows that the warrantless wiretapping program is founded on Title VII of FISA, now codified at 50 USC § 1881a, which had been added through Section 702 of the FISA Amendments Act of 2008. Based on this provision, the US government intercepts without a court order the communications of targeted persons "reasonably believed to be located outside the United States." To the extent that the government's reasonable belief is mistaken or that those targeted individuals happen to be in communication with persons within the United States, then the communications of US persons, too, can be swept up under this surveillance program, known within the National Security Agency (NSA) and the larger US intelligence community as PRISM.

The constitutionality of the government's authority to collect intelligence without a warrant in this manner was challenged by the American Civil Liberties Union (ACLU) and others in Clapper v. Amnesty International USA. The case made its way to the Supreme Court, where the US Solicitor General, Donald B. Verrilli, Jr., persuaded a majority of the justices that the plaintiff activists and journalists lacked standing since they could not demonstrate that they had in fact been targeted and suffered a cognizable injury as a result.

In his brief [PDF] and at argument [PDF] Verrilli drove his point home by assuring the court that some criminal defendants could "have standing" because the US government "must provide advance notice ... to the tribunal and the person" whenever it "intends to use or disclose any information obtained or derived from its acquisition of a person's communications under section 1881a."

That representation turned out to be false. Prosecutors in the Justice Department's National Security Division actually had not been informing defendants and courts when evidence or leads were derived from warrantless surveillance. As a result, the government announced a review of active and closed cases to identify defendants and convicts whose cases involved evidence resulting from warrantless wiretapping.

The notice filed in the Hasbajrami case is only the third such notice filed nationwide and the first in a post-conviction posture (remember, Hasbajrami took a guilty plea). The other two notices were filed in two active cases: the prosecution of Jamshid Muhtorov in Colorado in October 2013, and the case against Mohamed Mohamud in Oregon in November of that same year.

In its recent filings, the government tells Hasbajrami that he can revise his pending post-conviction habeas corpus petition to include this newly-discovered fact. But the government also argues that the fact makes no difference because Hasbajrami waived his right to attack his conviction or withdraw his plea when he signed the agreement to plead guilty a couple of years ago.

The reality, however, is that it is very much an open question. As a general rule, waivers of rights must be informed to be valid. Hasbajrami signed his plea agreement informed by an assessment of his odds of success at trial. His lawyer may well have offered a very different assessment of those odds had he known that he could have mounted an unprecedented legal challenge to the constitutionality of the evidence to be used against his client. At the very least, that lawyer could have lodged a constitutional challenge in order to improve his client's bargaining position in plea negotiations.

So Hasbajrami has a strong argument to reopen proceedings that he could present to a court through his pending habeas corpus challenge. The question now is whether he is in a position to take advantage of the opportunity. Hasbajrami is handling his own habeas corpus litigation pro se. Without the assistance of counsel, it remains to be seen whether he will avail himself of the novel argument he now has at his disposal.


Ramzi Kassem is Associate Professor of Law at the City University of New York School of Law. He directs the Immigrant & Non-Citizen Rights Clinic where he and his students represent prisoners of various nationalities presently or formerly held at American facilities at Guantánamo Bay, Cuba, at Bagram Air Base, Afghanistan, at so-called "Black Sites," and at other detention sites worldwide. Professor Kassem also supervises the Creating Law Enforcement Accountability & Responsibility (CLEAR) project, which primarily aims to address the legal needs of Muslim, Arab, South Asian, and other communities that are particularly affected by post-9/11 law enforcement policies and practices.

Suggested Citation: Ramzi Kassem, Unprecedented Notice of Warrantless Wiretapping in a Closed Case, JURIST - Forum, Mar. 24, 2014, http://jurist.org/forum/2014/03/ramzi-kassem-warrantless-wiretapping.php.


This article was prepared for publication by Maria Coladonato, assistant editor for JURIST's academic commentary service. Please direct any questions or comments to her at academiccommentary@jurist.org

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