The Ottumwa Courier

AP National

February 27, 2014

NSA surveillance: A new door to court challenges?

(Continued)

That changed as a result of the review, and in October of last year, the government notified Jamshid Muhtorov that it intended to use evidence from this particular type of surveillance in its case against him. It was the first time the government made such a notification. Muhtorov, an Uzbek refugee living in Colorado, was accused in 2012 of trying to travel overseas to fight for a terrorist group. As a result of the government's notification, Muhtorov became the first person who can prove that the government used this surveillance on him. He is now challenging the constitutionality of the program.

"It's going to create a difficulty for some courts," said Jonathan Turley, a law professor at George Washington Law School. "It's very hard to get the cat to walk backward, once you've passed the sentencing stage."

In November 2013, the government made a similar notification to Mohamed Osman Mohamud, a Somali American who was convicted of plotting to set off a bomb in downtown Portland in 2010. Mohamud has not yet been sentenced.

Some, and not just at the Justice Department, don't think there will be a substantial impact.

"My sense is that the notice is less significant than many believe, and that a future Supreme Court decision on the validity of Section 702 isn't particularly likely in the short term--and maybe even in the long term," George Washington University law professor Orin Kerr wrote in an October blog posting.

Hasbajrami's attorney, Steve Zissou, said it's too early to tell exactly what this latest notification means for his client.

"Insofar as undoing his conviction, he actually got a very sweet deal," Zissou said. Hasbajrami could have faced up to 60 years in prison if he hadn't negotiated a deal with the government. Now he's serving 15 years in New Jersey. In December, Hasbajrami asked a judge to set aside his prison sentence, saying the indictment against him was vague and overly broad. His motion cited what he called "the government's ever-evolving definition of what it means to provide material support."

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