Last updated: October 26. 2013 10:28PM - 15712 Views
PETE YOST Associated Press



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WASHINGTON — The Justice Department says for the first time that it intends to use information gained from one of the National Security Agency’s warrantless surveillance programs against an accused terrorist, setting the stage for a likely Supreme Court test of the Obama administration’s approach to national security.


The high court so far has turned aside challenges to the law on government surveillance on the grounds that people who bring such lawsuits have no evidence they are being targeted.


Jamshid Muhtorov was accused in 2012 of providing material support to the Islamic Jihad Union, an Uzbek terrorist organization that, authorities say, was engaging NATO coalition and U.S. forces in Afghanistan.


According to court papers in the case, the FBI investigated Muhtorov after his communications with an overseas website administrator for the IJU.


In a court filing Friday, the government said it intends to offer into evidence in Muhtorov’s case “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978.”


Last February, a sharply divided Supreme Court ruled in a 5-4 vote that a group of American lawyers, journalists and organizations could not sue to challenge the 2008 expansion of the law. The court said those who sued could not show that the government would monitor their communications along with those of potential foreign terrorist and intelligence targets.


Last month, Supreme Court Justice Antonin Scalia, who had ruled with the majority in the earlier 5-4 decision, said the courts ultimately would have to determine the legality of the NSA surveillance program.


In the majority opinion last February, Justice Samuel Alito suggested a way for a challenge to be heard. He said if the government intends to use information from such surveillance in court, it must provide advance notice. In his argument before the court’s decision, Solicitor General Donald Verrilli had made similar comments to the justices on behalf of the administration.


Justice Department spokesman Brian Fallon declined comment Saturday on the new development beyond the court filing.


The program at issue in the Muhtorov case is commonly called “702,” a reference to the numbered section of the surveillance law on Internet communication.


In the Muhtorov case, after his contact with the IJU’s website administrator, the FBI went to court and obtained email from two accounts that Muhtorov used, according to the court papers.


The FBI also went to court to obtain communications originating from Muhtorov’s phone lines. In one call, Muhtorov told an associate that the Islamic Jihad Union said it needed support, an FBI agent said in an affidavit filed in the case. The associate warned Muhtorov to be careful about talking about a founder of group, the affidavit stated.

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