DOJ’s New “Transparency” on the Dragnet: Admitting Their “Physical Search” Was the “Dragnet”

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DOJ has been boasting to the press for weeks that it will give Jamshid Muhtorov (though they didn’t name him) notice that they used NSA spook authorities to catch him in his alleged support for Uzbekistan’s Islamic Jihad Union. Now that they have released his name, there are a lot of reasons to be cynical about that: the possibility they’ll try to implicate Human Rights Watch, the possibility they’ll tie him to Najibullah Zazi (like Muhtorov) living in Aurora, CO, the apparent fact that they have no other evidence against him except intercepts.

But here’s what this notice constitutes. Here’s the notice they filed in February 2012.

Comes now the United States of America, by John F. Walsh, United States Attorney, and Gregory Holloway, Assistant United States Attorney, both for the District of Colorado and Jason Kellhofer and Erin Creegan, Trial Attorneys United States Department of Justice, National Security Division, Counterterrorism Section, and hereby provides notice to this Court and the defendant, Jamshid Muhtorov that pursuant to Title 50, United States Code, Sections 1806(c) and 1825(d), the government intends to offer into evidence or otherwise use or disclose in any proceedings in the above-captioned matter, information obtained and derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §§ 1801-1811, 1821-1829.

And here’s the notice they filed today, in their big bid for transparency.

Comes now the United States of America, by John Walsh, United States Attorney, and Gregory Holloway, Assistant United States Attorney, both for the District of Colorado and Erin Creegan, Trial Attorney United States Department of Justice, National Security Division, Counterterrorism Section, and hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. ” 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose in proceedings in the above-captioned matter information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. ‘ 1881a. Dated this 25th day of October, 2013.

That is, their idea of “transparency” is to notice 50 USC 1881a, which is Section 702 of FAA (wiretapping based off a foreign target), instead of 50 USC 1825(d) which is physical search. (See here and here for just two of the instances where I note they’re calling dragnet searches physical ones.)

That’s it. For years, they’ve been telling defendants they were subjects of a physical search, when in fact they were subjects of a dragnet.

And this is their gleeful new exhibit of transparency.

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7 replies
  1. peasantparty says:

    GOOD GOBS of GOOSE GREASE!

    I’m so tired as it is after midnight here, but also livid at the games they play to cover their asses.

    I can’t say enough or anything really at this point except the NSA, Clapper, and Alexander deserve every book thrown at them. Also, as I’ve said before the DOJ needs to be completely GUTTED and redesigned.

  2. Greg Bean (@GregLBean) says:

    “For years, they’ve been telling defendants they were subjects of a physical search, when in fact they were subjects of a dragnet”

    It is really hard to assess the validity of this without first seeing the secret interpretations of the phrase ‘physical search’. After all, it is possible it does not mean what we think it means.

    I suspect when we see this secret interpretation that we may understand that they have invented a new language that is largely the reverse of American English and everything will then make perfect sense.

  4. orionATL says:

    just reading the huffington post story gives me the feel that this is another case where the obama admin and its brutal doj will sacrifice an individual to met the demands of an institution, in this case the gov of uzbekistan and/or the state department or dod.

    under the “leadership” of “pragmatic liberal” eric holder, the doj has become a ruthless, authoritarian monster and an embarrassment to the nation. it’s targets are those of a bully, individuals and small institutions without political or financial clout.

    but the big theives and dangerous institutions? – not to worry.

  5. Dredd says:

    The DOJ and the military NSA do not seem to be on the same “transparent” page, since General Alexamder said he wants to stop the press from reporting whistleblower revelations about the military NSA spying on everyone.

    Let’s also not forget that lying under oath by the military NSA leadership is not the type of “transparency” the DOJ understands – they know better than to lie under oath to a federal judge.

  6. C says:

    The admission is little but the answer to what this means depends upon what the opposing counsel and the judge do with it. If the opposing counsel presses on the legality of the collection, how it was done, and so on then they will set a standard of calling it into question. If, however they meekly accept it, then they set a standard of aquiescence.

    Similarly, and more importantly, if the Judge permits the surveillance to be questioneed and the people who conducted it to be called to testify, as is required under the constitution, then this will be the basis of a good precedent to challenge it. If, however the judge then keeps the details secret by swallowing some national security exemption language then they will set the standard for violating a basic constitutional protection by admitting knowingly secret evidence with no basis for challenge.

    This is only the beginning of the fight not the end.

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