Case Summary and Outcome

The United States Court of Appeals for the Tenth Circuit held that the surveillance conducted under Section 702 of the Foreign Intelligence Surveillance Amendments Act of 2008 did not violate the defendant’s Fourth Amendment rights. The defendant, accused of providing support to a terrorist organization, contested the use of evidence obtained through warrantless surveillance, but the Court found that the surveillance was lawful and reasonable. The Court determined that the incidental collection of the defendant’s communications during lawful surveillance of a foreign target did not require a warrant and was reasonable under the Fourth Amendment, given the government’s strong interest in national security and the safeguards in place to protect privacy. Additionally, the Court found that Section 702 complied with Article III of the Constitution and did not violate the principles of separation of powers. Thus, the defendant’s conviction was upheld, and the Court found no constitutional violations in the proceedings.

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Facts

Jamshid Muhtorov, originally from Uzbekistan, sought refuge in the United States with his family in 2007 due to persecution by Uzbekistan’s ruling regime for his human rights activism. Settling in Denver, Colorado, they became permanent residents. However, Muhtorov found himself under surveillance by the U.S. government, eventually leading to charges of providing support to a terrorist organization in Uzbekistan.

In 2012, the U.S. government charged him with providing material support to a terrorist organization named Islamic Jihad Union (IJU), a State Department-designated foreign terrorist organization with ties to al-Qaeda in Uzbekistan. He was detained for six years before being brought to trial.

According to the government, they identified Muhtorov’s association with the IJU through warrantless surveillance conducted under Section 702 of the Foreign Intelligence Surveillance Amendments Act of 2008. This surveillance targeted a non-U.S. person abroad, inadvertently collecting Muhtorov’s communications. Subsequently, the government used these communications to support applications for surveillance under the Foreign Intelligence Surveillance Act (FISA). Intercepted emails revealed Muhtorov’s expressions of support for the IJU, his pledge of allegiance, and discussions about assisting, including financial support and travel plans.

On January 21, 2012, Muhtorov was arrested at O’Hare Airport in Chicago as he attempted to board a flight to Istanbul, Turkey, with a one-way ticket. The FBI found incriminating materials in his possession, including $3,000 in cash, two new iPhones, and a new iPad. His phone contained videos showing combat against coalition forces, instructions on how to make explosive devices, and graphic images of jihadists beheading captured men.

Muhtorov was charged with conspiracy and providing material support to a designated foreign terrorist organization under 18 U.S.C. § 2339B. Following Muhtorov’s arrest, he remained incarcerated until his trial began in May 2018. The government disclosed extensive discovery materials, requiring translation from Russian, Uzbek, and Tajik into English. The District Court conducted ex parte hearings under the Classified Information Procedures Act to balance classified information’s secrecy against Muhtorov’s rights.

On June 21, 2018, the jury found Muhtorov guilty of three counts of providing material support to a foreign terrorist organization under 18 U.S.C. § 2339B, namely conspiring; attempting to provide $300 to the IJU; and providing or attempting to provide himself as personnel to that same organization. The jury acquitted Muhtorov of a fourth material support count—attempting to provide communications equipment and services to the IJU.

Muhtorov filed an appeal before the United States Court of Appeals for the Tenth Circuit against his conviction, but he did not contest the sufficiency of the evidence.

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Decision Overview

Judge Scott Matheson delivered a majority judgment for the Court. The main issue before the Court was whether the surveillance conducted under Section 702 of the Foreign Intelligence Surveillance Amendments Act of 2008 violated the defendant’s Fourth Amendment rights. The Court also addressed three other issues: whether Section 702 complied with Article III and separation of powers principles, whether the government should have disclosed classified FISA and Section 702 materials, and whether Muhtorov was entitled to notice of the surveillance methods used.

The Appellant, Muhtorov, contended that the traditional Surveillance Act evidence that was presented at trial should have been suppressed as “fruit of the poisonous tree” since it was obtained illegally during the incidental collection of his communications under Section 702 Surveillance Act. Muhtorov contended that the collection of his communications through Section 702 surveillance violated the Fourth Amendment. Although the government did not introduce Section 702 evidence at trial, Muhtorov claimed the FISA evidence used at trial would not have been collected without Section 702 surveillance. Second, Muhtorov argued that Section 702 violated Article III of the Constitution and the separation of powers. Under Section 702, the Foreign Intelligence Surveillance Court (“FISC”) did not issue individualized warrants. Third, Muhtorov contended the District Court should have granted him access to the classified applications and other related materials that supported the government’s Section 702 and traditional FISA surveillance. He claimed disclosure was required under the FISA provision governing disclosure, 50 U.S.C. § 1806(f), and as a matter of due process. Finally, he contended the District Court should have required the government to provide him notice of the specific surveillance techniques the government may have used during its investigation and the evidence collected using those techniques. [pp. 6, 11-12, 21-22]

The Government argued that the evidence derived from Section 702 was not obtained or derived from queries using terms associated with Muhtorov. They clarified that the Section 702 communications described in the FISA applications were not the result of any searches using Muhtorov-related terms. Therefore, they argued that the evidence Muhtorov sought to suppress was not obtained or derived from queries associated with him. [p. 23]

Fourth Amendment Challenge to Section 702-Derived Evidence

The Court analyzed whether the absence of a warrant made the incidental collection of Muhtorov’s communications unreasonable. It determined that a warrant wasn’t necessary for the Section 702 surveillance of the foreign target or the incidental collection of Muhtorov’s communications. [p. 27]

The Court relied on Katz v. United States, (1967), which held that a warrant was not required for the Section 702 surveillance of the foreign target and United States v. Verdugo-Urquidez, (1990), which held that the Fourth Amendment does not apply to searches of non-resident aliens abroad. The Court also cited United States v. Mohamud, (2016) and United States v. Hasbajrami, (2019), which applied the Verdugo-Urquidez principle to Section 702 surveillance of foreigners abroad, affirming that targets without substantial connections to the United States are not entitled to Fourth Amendment protections in such contexts. Therefore, the Court concluded that no warrant was required for the surveillance in question.

Applying the reasonableness test from Maryland v. King, (2013), the Court balanced the government’s interest in national security against Muhtorov’s privacy interests. It found the government’s interest in combating terrorism to be compelling, outweighing Muhtorov’s limited privacy interests as a non-U.S. person. The Court also noted that Section 702 includes privacy safeguards, such as minimization and targeting procedures, which ensure the surveillance is narrowly tailored. [p. 28]

The Court applied the “incidental overhear” doctrine, which permits the collection of non-targets’ communications during lawful surveillance. This doctrine, as discussed in United States v. Kahn, (2023) and United States v. Donovan, (1977), permits the seizure of incriminating statements heard during surveillance, even if the individuals are not specifically named in the surveillance order. It also invoked the “plain view” doctrine, allowing law enforcement to seize evidence without a warrant if it is in plain view during lawful surveillance. The Court concluded that Muhtorov’s communications were lawfully collected under these doctrines. [pp. 31-33]

The Court also highlighted that Section 702 surveillance is intended for acquiring foreign intelligence information and is subject to minimization and targeting requirements. These limitations, similar to those in Title III, ensure that the surveillance remains focused and minimally intrusive. Therefore, considering the nature of Section 702 surveillance, the foreign intelligence context, and long-standing Fourth Amendment principles, the Court concluded that no warrant was required for the incidental collection of Muhtorov’s communications. [pp. 41-44]

The Court addressed Muhtorov’s arguments, including his concern about post-seizure restrictions and the government’s ability to retain, use, and query its Section 702 databases. They rejected these arguments, noting that the trial evidence was not derived from querying a Section 702 database and that the later use of lawfully collected communications does not trigger the Fourth Amendment unless there has been a separate search or seizure. The Court also dismissed his argument that Section 702 surveillance abandons core safeguards, stating that these safeguards may be overcome in some circumstances because the ultimate touchstone of the Fourth Amendment is reasonableness. Overall, the Court found that the Section 702 surveillance in this case was appropriately particularized, narrowly tailored, and reasonable, thus passing the reasonableness balancing test. [pp. 48-49]

Article III Challenge

On the issue of whether and why Section 702 complies with Article III, the Court provided a detailed analysis to demonstrate that the role of the Foreign Intelligence Surveillance Court (FISC) under Section 702 does not violate the prohibition on advisory opinions. The Court began by highlighting the constitutional framework, emphasizing that Article III limits the judicial power to cases and controversies capable of resolution through the judicial process. The Court referred to Flast v. Cohen, (1968) to underscore the importance of concrete legal issues presented in actual cases. [pp. 54-56]

The Court acknowledged that the FISC’s role under Section 702 deviates from traditional Article III adjudication but argued that it remains constitutional. The Court noted that the FISC’s decisions on Section 702 matters are not advisory opinions because they involve the application of law to real-world issues, rather than abstract questions. Drawing on cases like Vermont v. New York, (1972) and United States v. Fruehauf, (1961), the Court emphasized that the FISC assesses specific factual submissions by the government regarding proposed surveillance procedures to ensure compliance with Section 702 and constitutional provisions. Moreover, the Court highlighted the immediate and legally binding consequences of the FISC’s determinations on Section 702 procedures. They noted that the FISC’s decisions can approve, deny, or modify the government’s proposed procedures, impacting the executive’s ability to conduct surveillance. Referencing cases such as Plaut v. Spendthrift Farm, Inc, (1955) and Wyoming v. U.S. Dep’t of Agric., (2005), the Court emphasized that the FISC’s rulings conclusively resolve cases and have practical effects in the real world. [pp. 57-61]

In response to counterarguments raised by Muhtorov, the Court dismissed the notion that the FISC’s role is limited to evaluating procedures in a vacuum. They argued that the FISC’s review is based on concrete facts about the government’s Section 702 procedures and does not constitute an exercise in hypothetical advisory opinions. By adjudicating the lawfulness of specific surveillance procedures, the FISC’s determinations have immediate real-world consequences and thus do not fall under the category of advisory opinions prohibited by Article III. [p. 62]

On the issue of whether Section 702 complies with the principles of separation of powers and Article III of the Constitution, the Court provided a detailed analysis. It began by highlighting the Supreme Court’s emphasis on how Article III justiciability doctrines further separation of powers principles. Article III standing, for instance, is seen as central to maintaining the separation of powers, ensuring that each branch of government adheres to its assigned responsibilities. The Court cited precedents such as Lujan v. Defs. of Wildlife, (1992) and TransUnion LLC v. Ramirez, (2021) to support this argument. Additionally, it noted the Supreme Court’s stance on advisory opinions, explaining that such opinions could potentially grant unelected judges excessive authority over decisions of the elected branches of government, as highlighted in cases like United Pub. Workers of Am. (C.I.O.) v. Mitchell, (1947) and California v. Texas, (1978). [pp. 68-70]

Furthermore, the Court delved into the constitutional framework, emphasizing that while the separation of powers is crucial, it also allows for the sharing of power among the branches to ensure a workable government, as articulated in cases like I.N.S. v. Chadha, (1983) and United States v. Nixon, (1974). It drew parallels between Section 702 and other governmental arrangements upheld by the Supreme Court, such as Mistretta v. United States, (1989), where the constitutionality of the United States Sentencing Commission was affirmed. [pp. 70-71]

The Court then addressed whether Section 702 encroached upon the prerogatives of other branches of government. It argued that the FISC’s role under Section 702 did not infringe upon executive prerogatives, citing historical practices of shared responsibility between the judiciary and the executive in regulating foreign intelligence surveillance. Drawing rationale from Mistretta v. United States, (1989), the Court emphasized that Section 702 functions aligned with the central mission of the judiciary and did not constitute an unconstitutional accumulation of power. Moreover, the Court discussed how Section 702 functions were appropriate to the central mission of the judiciary, akin to the role of the Sentencing Commission in Mistretta. It highlighted the FISC’s traditional competency in overseeing FISA applications and emphasized that the categorical nature of Section 702 proceedings did not depart from traditional judicial functions. [pp. 72-73]

Finally, the Court considered additional factors, including deference to Congress in balancing national security and individual privacy interests, as well as the privacy protections afforded by Section 702 procedures. It concluded that Section 702 complied with Article III, maintaining the proper balance of powers while protecting individual liberties. [p. 74]

Nondisclosure of FISA and Section 702 Materials

On this issue, Muhtorov contended that the District Court erred by not requiring the government to disclose the classified applications, orders, and other materials necessary to assess the legality of the surveillance. He argued for disclosure under the provisions of the Foreign Intelligence Surveillance Act (FISA) and as a matter of due process. However, the Court, after a comprehensive review of the materials, determined that disclosure was not necessary to accurately assess the legality of the surveillance. The Court noted that disclosure and an adversary hearing are exceptions and occur only when necessary, as established in the case of United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982). It found that Muhtorov’s failure to challenge the traditional FISA surveillance and the absence of evidence to question the Court’s findings supported its decision not to order disclosure. [pp. 81-84]

Regarding the Section 702 application materials, Muhtorov’s arguments for disclosure based on complex legal questions, possible misrepresentations of fact, and the volume and complexity of surveillance materials were deemed unpersuasive by the Court. The Court found that these factors did not warrant disclosure, especially considering the careful review conducted by the District Court in camera and ex parte.

Additionally, the Court addressed Muhtorov’s due process arguments, including those invoking Brady and Franks. It concluded that the denial of disclosure did not violate due process, as the materials were not favorable or material to Muhtorov’s suppression motions, and he failed to make a substantial preliminary showing required for a Franks hearing as stipulated in the case Franks v. Delaware, 438 U.S. 154 (1978). In the Franks case, the U.S. Supreme Court held that if a warrant affidavit includes a statement that is demonstrated to be false, and that statement was included knowingly, intentionally, or with reckless disregard for the truth, and it was necessary to the finding of probable cause, the warrant is invalid. This ruling allows defendants to request a hearing to challenge the validity of a warrant if they can make a substantial preliminary showing that the affiant included false information.

Ultimately, the Court upheld the District Court’s decision, affirming that FISA’s procedures provide adequate procedural protections for defendants’ due process rights. [pp. 86-90]

Notice of Surveillance Methods

On this issue, Muhtorov argued for the disclosure of potentially undisclosed surveillance techniques employed by the government during the investigation. He contended that such disclosure was essential for him to effectively challenge the evidence against him. However, the Court found that Muhtorov’s arguments did not merit disclosure under the relevant legal frameworks, including due process, 18 U.S.C. § 3504, Rule 16 of the Federal Rules of Criminal Procedure, and the Classified Information Procedures Act (CIPA). The Court observed that while Muhtorov cited relevant Supreme Court cases such as United States v. U.S. District Court for the Eastern District of Michigan (‘Keith’), (1972); Alderman v. United States, (1969); and Jencks v. United States, (1957), however, the Court found that Muhtorov’s assertions did not establish a due process right to notice of specific surveillance techniques used by the government, nor did they trigger the government’s obligation under 18 U.S.C. § 3504 to confirm or deny the use of surveillance methods. [pp. 100-103]

Additionally, the Court addressed Muhtorov’s contentions under 18 U.S.C. § 3504 and Rule 16 of the Federal Rules of Criminal Procedure. It emphasized the requirement for Muhtorov to demonstrate the materiality of the requested information, citing cases like United States v. Simpson, (2017) to underscore the need for evidence rather than mere speculation. The Court found Muhtorov’s arguments lacking in evidentiary support to warrant disclosure under these legal provisions.

Furthermore, the Court discussed Muhtorov’s contentions regarding the Classified Information Procedures Act (CIPA), noting that the statute primarily serves as a procedural framework and does not inherently mandate disclosure. The Court referenced cases such as United States v. Lustyik, (2016) and United States v. Amawi, (2012) to highlight the Court’s discretion in handling classified materials and ensuring a fair trial. It concluded that the statutes governing discovery in criminal cases did not support the disclosure of surveillance methods, and the District Court acted within its discretion in denying Muhtorov’s requests. [p. 105]

Accordingly, the Court upheld the district court’s judgment that the surveillance conducted under Section 702 of the Foreign Intelligence Surveillance Amendments Act of 2008 did not violate Muhtorov’s Fourth Amendment rights.

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