WASHINGTON — The Justice Department has informed a terrorism suspect in Colorado that it intends to use evidence against him gathered through the government's warrantless surveillance program, a move that will likely lead to a constitutional challenge to the law.
It is the first time the government has informed a criminal defendant that it intends to use "information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act."
It is important because the Supreme Court last term declined to consider the constitutionality of the law amended five years ago because it said those who brought a lawsuit against it could not prove they had been subject to its provisions.
With the Justice Department's filing late Friday, "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," said Jameel Jaffer, deputy legal director of the American Civil Liberties Union.
Jaffer said it was a "big deal" that "will undoubtedly set up a constitutional challenge to it."
The notification came in the government's case against Jamshid Muhtorov, a refugee from Uzbekistan who lives in Aurora, Colo. He was charged in 2012 with giving material aid to the Islamic Jihad Union, and he and another man were suspected of trying to participate in a terrorist attack planned by the group.
But the notification is more important to a potential challenge of the FISA law than to the specifics of Muhtorov's case.
When the Supreme Court this year dismissed the challenge to the expanded federal law, which allows the interception of electronic communications between foreign targets and people in the United States, it said the lawyers, journalists and human rights organizations who brought the suit could not prove they had been caught up in the surveillance.
As a result, they did not have legal standing to challenge the constitutionality of the law's 2008 expansion, Justice Samuel Alito wrote for fellow conservatives in the 5-4 decision.
The court's liberals said the decision effectively protected the law from constitutional scrutiny, because no one would be able to prove they had been subject to the law.
But Alito, relying on a presentation from the government and Solicitor General Donald Verrilli, said there was a way to challenge the law. "If the government intends to use or disclose information obtained or derived from" such surveillance in judicial or administrative proceedings, Alito wrote, "it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition."