Civil rights advocates said a procedural move by prosecutors could result in a challenge to the controversial U.S. Foreign Intelligence Surveillance Act. On Friday, the DOJ formally notified a Colorado terrorism suspect that evidence gathered under the FISA law would be used in his prosecution on charges of providing material aid to a group called the Islamic Jihad Union.
Deputy Director of the American Civil Liberties, Jameel Jaffer, said the notification was the first time that the Justice Department had made such a notification and would “undoubtedly set up a constitutional challenge to it.”
On Saturday, the Washington Post said the notification marked a departure from previous prosecutions because it gave the defense and groups such as the ACLU legal grounds for a challenge. Previously, courts had ruled there were no grounds for a challenge because the government had not acknowledged the defendants had been under surveillance.
Federal prosecutors had contended the law did not require them to notify defendants they had been under FISA surveillance, the Post said, but the U.S. Supreme Court said last year defendants indeed had to be notified that such evidence was going to be used in their case.
“It’s the first time since 2008 when the act was signed into law that the government has acknowledged the use of surveillance derived from the law in a criminal prosecution,” Jaffer said.