By Ken Dilanian, Tribune Washington Bureau
WASHINGTON — When federal prosecutors charged Colorado resident Jamshid Muhtorov in 2012 with providing support to a terrorist organization in his native Uzbekistan, court records suggested the FBI had secretly tapped his phones and read his emails.
But it wasn’t just the FBI. The Justice Department acknowledged in October that the National Security Agency had gathered evidence against Muhtorov under a 2008 law that authorizes foreign intelligence surveillance without warrants, much of it on the Internet. His lawyers have not been permitted to see the classified evidence.
In January, Muhtorov became the first defendant to challenge the constitutionality of that law, which allows the NSA to vacuum up phone and email conversations involving Americans as long as one end of the communication is abroad.
Civil liberties activists hope the case, and other court challenges in Illinois, Oregon and New York, will focus judicial scrutiny on whether the government can use the results of foreign intelligence gathering in domestic criminal prosecutions. Domestic wiretaps require a court order specifically for the person targeted; overseas wiretaps do not.
The issue has emerged since former NSA contractor Edward Snowden began leaking details of secret agency spying programs at home and abroad last summer, sparking a debate over privacy versus national security.
Activists have urged the White House to impose new restrictions on how the government handles information on U.S. citizens and legal residents that was inadvertently obtained through its warrantless surveillance, as a presidential task force recently recommended.
The NSA obtains much of the data via secret court orders to Google, Facebook and other U.S. technology companies under a program known as PRISM, one of the systems Snowden exposed.
U.S. officials say the communications of Americans are obtained unintentionally because it is often difficult to tell whether a Yahoo or Gmail address belongs to an American or a foreigner. In some cases, Americans are picked up communicating with foreigners or groups targeted by the NSA.
It’s unclear how much information the NSA keeps on Americans, or how it is used.
“This is a potentially important loophole in current wiretap law,” said Peter Swire, a privacy law expert who served on the presidential task force. “They shouldn’t be holding information about U.S. persons unrelated to an investigation.”
The NSA is using its authority to monitor foreigners overseas “as a pretext to monitor Americans here at home,” said Jameel Jaffer, an attorney for the American Civil Liberties Union who represents Muhtorov in challenging the surveillance.
“We now know the government has used (data on Americans) in criminal investigations,” he added. “But has it relied on the database to put people on the no-fly list, or to deny people security clearances, or to deny them government employment or government contracts?”
In its report to President Barack Obama in December, the task force recommended that information on or about Americans or legal residents should be destroyed unless it offered intelligence value or indicated a clear threat.
It also recommended that the NSA not use names of U.S. citizens, their email addresses or other potential identifiers to search its database, and suggested banning the use of transcripts from warrantless wiretaps in criminal courts.
Thus far the Obama administration has adopted none of those changes. James R. Clapper, director of national intelligence, recently acknowledged to Congress that NSA analysts sometimes used the name, email address or phone number of a U.S. citizen or legal resident to search material gathered under PRISM.
The FBI opposes new restrictions on the use of NSA data. Officials fear a rebuilding of the so-called wall that blocked intelligence and law enforcement agencies from sharing crucial clues and information before the Sept. 11, 2001, terrorist attacks and say the Muhtorov case proves the value of such sharing.
“Why would we want to deny ourselves access to information that is both relevant and lawfully collected?” asked a senior U.S. intelligence official not authorized to be quoted publicly.
The NSA collected more than 250 million Internet communications under PRISM in 2011, according to a declassified decision by the Foreign Intelligence Surveillance Court, which approves the court orders.
U.S. officials say they black out names of Americans that accidentally pop up, and that some of the collected data is never examined. The task force concluded, however, that the approach “does not adequately protect the legitimate privacy interests of United States persons when their communications are incidentally acquired.”
It’s unclear how often the NSA passes tips to law enforcement agencies about criminal activity unrelated to terrorism. Current and former intelligence officials say the practice is rare because the NSA doesn’t want to appear in court.
Muhtorov’s supporters say his case shows government overreaching.
Muhtorov, now 38, was resettled with his wife and two children in Aurora, Colo., in 2007 by the U.S. government after he fled harsh political repression in Uzbekistan. A 2005 State Department report described him as a human rights activist and said his sister had been arrested on trumped-up charges.
The FBI arrested Muhtorov in Chicago in 2012 as he prepared to travel to Turkey. Prosecutors say he planned to join the Islamic Jihad Union, a terrorist group in Uzbekistan with ties to al-Qaida.
In emails, Muhtorov swore allegiance to the Uzbek group and said he was “ready for any task, even at the risk of dying,” according to the criminal complaint. U.S. officials offered no evidence indicating he planned to attack American or Western interests.
The criminal complaint does not refer to the NSA, but it says the government discovered that Muhtorov was communicating with a foreign member of a terrorist group abroad; the NSA apparently was monitoring that person or group.
Based on that intelligence, federal authorities began monitoring Muhtorov using a secret national security warrant specific to him.
A Justice Department spokesman declined to comment on the case. Muhtorov’s lawyer, who was assigned by the public defender’s office, also declined to comment.
AFP Photo/Paul J. Richards