Section 702 Challenge Denied in Portland Christmas Bombing FBI Sting Case

Opportunity to limit government surveillance power missed.


booking photo

Six years ago, the FBI arrested Mohamed Mohamud after he tried to set off a car bomb they had provided him at a Christmas tree lighting in Portland, Oregon, the conclusion of a months long sting operation. Mohamud first drew the attention of the FBI after emailing with an alleged terrorist recruiter he had met in Oregon who had moved to Pakistan.

He was eventually convicted on one count of attempting to detonate a weapon of mass destruction and sentenced to 30 years in prison. During the trial, the government, after delay, disclosed to Mohamud's attorneys that some of the evidence they had gathered against Mohamud had been collected through Section 702, the provision of the Foreign Intelligence Surveillance Act that permits the U.S. government to collect all sorts of communications with individuals overseas it targets as terrorism suspects.

The case "presented the best opportunity for critics of Section 702 to challenge it on constitutional grounds," I write at The Hill:

The American Civil Liberties Union (ACLU) and the Electronic Freedom Foundation (EFF) joined in the legal battle to get the court to find that the evidence was collected unconstitutionally—Mohamud's lawyers believed such a ruling would help them to advance the defense that Mohamud had been entrapped. Government prosecutors argued Mohamud had not been entrapped because his communications with a foreign terrorism suspect, Samir Khan, who was the editor and publisher of Inspire, an Al-Qaeda magazine. Khan was killed in a U.S. drone strike in Yemen in 2011, along with Anwar al-Awlaki, a U.S. citizen and alleged recruiter and spokesperson for Al-Qaeda in the Arabian Penninsula. Neither man had ever been convicted in a court of law before being targeted by U.S. drone strikes. Al-Awlaki's American-born teenaged son, Abdulrahman, was killed in a U.S. drone strike in Yemen the following month.

Read the whole thing here.

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  1. What a stupid fucking name.

    1. Sirhan Sirhan says screw you!

    2. -1 Boutros Boutros-Ghali

    3. I bet his middle name is “Muhammed”.

  2. Jim Jem is going to marry Mary Mari on Saturday.

    1. Buffalo buffalo Buffalo buffalo buffalo buffalo Buffalo buffalo.

  3. That poor young man.

    The case “presented the best opportunity for critics of Section 702 to challenge it

    You think? i’d think 2 things would probably help =

    1 – a defendant who wasn’t so-obviously a jackass, and
    2 – if he’d never actually attempted to reach out to someone internationally, which triggers the whole FISA bypass of the 4th amendment. Once you start *thinking* you’re communicating with someone in Pakistan, you’ve basically sacrificed your privacy.

    Im not sure why the claim is made here that this is a good case for overturning this law.

    It would make more sense if it were a case of someone who’d never in fact even tried to communicate with someone overseas. Like, if they’d simply been visiting someone’s facebook page, or some other behavior which would make application of FISA more-tenuous. Instead, it seems like something squarely in the mandate of the FISA law. The law might be objectionable, but i’m not sure this is an example of its over-reach.

    1. I don’t know. The way it’s described is confusing, but from the article itself:

      Critics have pointed out that one of the court’s key findings, that the government did not acquire evidence on Khan via a “backdoor search,” or a search of data collected on foreign targets using terms associated with American individuals, stands on a tenuous premise.

      “We think the court almost certainly got the facts wrong,” EFF attorney Andrew Crocker said in an interview with TechCrunch. “Based on public evidence in the case, it seems the FBI did in fact search its database for Mr. Mohamud’s emails?which would be a serious violation of his rights, according not just to EFF and ACLU, but also to lawmakers like Sen. Ron Wyden who have been trying to stop this practice.”

      So, based on this, seems like they searched for his emails – which they shouldn’t have in some database regardless – regardless of who he sent them to.

      I’d imagine another issue with laws like this is that the government has an official policy to usually lie about where they get the evidence. Parallel construction was one of the more disturbing aspects of the leaks on these programs.

      1. Seriously. Why don’t they just lie like all of the other bureaucrats in history? All they have to do is say they got a warrant prior to snooping.

      2. I’m not sure the distinction is clear –

        they only violated the law when they searched for *him* specifically, instead of discovering his communications via connection with the over-seas target?

        – basically, that they created the FISA-connection after the fact?, once they’d searched HIS emails, they found an excuse to search him (by finding some comms from him to some overseas target)?

        It seems like a chicken-egg distinction which Ed doesn’t clarify. I suppose the idea is,

        “The FBI is only allowed to ‘discover’ domestic suspects by searching international communications – not searching domestic communications, then submitting them as evidence AFTER they’ve found an international-connection justifying the search in the first place….”

  4. Ed, “FISA”, “Section 702”, etc…
    Did I ever tell you about rod ratios? How about crank degrees at maximum pressure? I’m sure you’d read the entire thing.

  5. That dude (?) looks fake, is that one of those new fangled computer composite images?

    1. He looks like a 15 year old baller.

      1. +2 Icy Hot Stuntaz

        1. …. flashbacks to…. 2002

  6. Since the election of Donald Trump, who did not offer even lip service to the importance of the Constitution or constitutional limits on government, Obama has showed little interest in curbing government power before he leaves office.

    Uh, Ed, Obama has shown little interest in curbing government power since he campaigned for President in 2008.

    1. Have we forgotten that Brak O is the biggest Marxist pos ever to inhabit the white house? FDR was pretty hard core but brak actually believes in his own stupidity. I think FDR was more corrupt. Brak is just the biggest puppet ever who is a hard core Marxist. The good kind of Marxists however,. The one that knows that corruption and enrichment is part of the game and is a willing and wanting participant.

    2. Huh. I’m sure I’ll dislike the Trump government, but I doubt it will be as bad as Obama’s, especially in regards to limited government.

  7. I imagine terrorist zines to be full of cool kids in black and white pictures and cartoons drawn by Muhammed R. Crumb.

  8. When did conventional explosive devices become weapons of mass destruction?

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