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Oregon Lawyers Question American Surveillance Tactics

Gloria Everson Friday July 8, 2016    7:04 AM
A courtroom sketch of Mohamed Mohamud, who was convicted for plotting to bomb Portland's holiday tree-lighting ceremony in 2010. SKETCH BY DEBORAH MARBLE

Mohamed Mohamud, the man convicted of plotting to bomb Portland's holiday tree-lighting ceremony in 2010, is asking for a new trial.

The Ninth Circuit Court heard his appeal Wednesday. Mohamud was convicted of trying to use a weapon of mass destruction and sentenced to 30 years in prison. But after the trial, prosecutors revealed that some of the information they used to convict the Somali-American man came from the government's so-called warrantless wiretapping program.

Wednesday's hearing was the first time an appeals court in the U.S. has reviewed a criminal conviction that depended upon data gathered under FISA — the Foreign Intelligence Surveillance Act.

Federal Public Defender Lisa Hay said the government violated Mohamud's Fourth Amendment rights when the NSA gathered and stored emails and online information about her client.

"This case challenges the court to uphold privacy interests in the face of a national surveillance apparatus. It also questions whether a defendant in a terrorism case can get a fair trial in our courts here," she said.

Hay said the government's use of undercover informants also violated Mohamud's constitutional right to a fair trial because the defense never learned their identities. Prosecutors argued that the surveillance program was authorized by Congress as part of the Foreign Intelligence Surveillance Act, and is critical to investigating terrorism.

The government argues that it only scoops up foreign communications with FISA, and if an American citizen's data is gathered as a result of that — as they were in Mohamud's case — those messages are fair game. A panel of justices with the appeals court will review the information presented Wednesday before making a ruling.