Enlarge / Pioneer Courthouse Square in Portland, Oregon, was the site of an attempted bombing on November 27, 2010.Craig Mitchelldyer / Getty Images News
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A US federal appeals court has rejected an effort to overturn the Portland Christmas tree bomber’s conviction on the grounds that the surveillance to initially identify the suspect did not, in fact, require a warrant. On Monday, the 9th Circuit Court of Appeals also rejected an entrapment argument raised by lawyers for suspect Mohamed Osman Mohamud.
As Ars reported back in January 2016, the case (United States v. Mohamud) involves a Somali-American accused of trying to blow up a 2010 lighting ceremony in Portland. Undercover FBI agents posed as jihadis and presented Mohamud with the means to conduct the operation, which turned out to be wholly bogus. Mohamud was eventually found guilty and sentenced to 30 years in prison.
But after the conviction, the government disclosed that it used surveillance under Section 702 of the FISA Amendments Act to collect and search Mohamud’s e-mail.
Seeing this, Mohamud’s legal team attempted to re-open the case—but the judge denied their motion. Mohamud’s defense raised this issue on appeal, but they have now been rejected by the 9th US Circuit Court of Appeals.
As the 9th Circuit concluded:
The panel held that no warrant was required to intercept the overseas foreign national’s communications or to intercept a U.S. person’s communications incidentally.
Assuming that Mohamud had a Fourth Amendment right in the incidentally collected communications, the panel held that the search was reasonable under the Fourth Amendment.
The panel wrote that declassified facts foreclosed the argument that the discovery in this case strayed from protecting the country from a terrorist threat into the conduct of foreign affairs.
Because no retention and querying of the incidentally collected communications is at issue in this case, an argument regarding reasonableness was outside the scope of this court’s review.
The panel held that under the third-party doctrine, Mohamud had a reduced expectation of privacy in his communications to third parties.
The panel held that Foreign Intelligence Surveillance Court-approved targeting and minimization procedures, which were followed in practice, sufficiently protected Mohamud’s privacy interest, in light of the government’s compelling interest in national security.
As the 9th Circuit describes it, Mohamed Mohamud was born in Somalia but moved to Oregon when he was three years old.
As he grew up, he eventually became a fan of the Los Angeles Lakers basketball team and enjoyed popular music. However, in 2008, Mohamud believed that he was racially profiled at London Heathrow airport and began toying with radical and extremist views. While in the United Kingdom, Mohamud created a new e-mail account: email@example.com.
It was this account that eventually led authorities to the information they needed to identify him and to eventually arrest, prosecute, and convict him.
By 2009, Mohamud began corresponding with Samir Khan, a Pakistani-American living in North Carolina, who was the editor of Inspire, the Al-Qaeda English-language magazine. (Khan eventually was killed in a 2011 drone strike in Yemen.) Mohamud also became friendly with Amro Al-Ali, a Saudi national whom he met at a Portland mosque. However, Mohamud did not realize that Al-Ali was being watched by the FBI, which is what kicked off surveillance of Mohamud.
Al-Ali even suggested that Mohamud go to Yemen to attend an Islamic and Arabic school, which he tried to do before Mohamud’s own mother “scolded him” and talked him out of it.
Mohamud’s father even forwarded the FBI an e-mail from his own son, expressing concern.
The father revealed to the feds that the firstname.lastname@example.org address was his son’s.
Later in 2009 and into 2010, Mohamud was contacted at that e-mail address by two people; the first was an undercover FBI contractor and the second was an undercover agent.
As the year went on, the undercover agent used the name “Youssef” and instructed Mohamud to switch to a new e-mail account with Hushmail, explaining that it would be more secure.
As 2010 went on, Youssef and Mohamud met in person, and Mohamud explained to him that he wanted to “become operational.” Youssef eventually had Mohamud meet “Hussein,” another undercover FBI agent, whom Youssef indicated was an Al-Qaeda explosives expert. Over time, the men helped Mohamud organize to blow up the Portland Christmas tree lighting ceremony on November 27, 2010. Mohamud was arrested with what he believed was a detonator, but it was, in fact, a dud.
As the legal process unfolded, it wasn’t until relatively late that Mohamud and his attorneys were told that he had been targeted under Section 702 due to his correspondence with Al-Ali.
As the 9th Circuit ruled this year:
And in any case, Mohamud cannot demonstrate how the late disclosure prejudiced him.
As the district court explained, it fully evaluated the § 702-derived evidence as if the motion had been brought before trial.
This put Mohamud in the same position he would have been in if the government had provided timely notice.
Plus, the judges concluded, because Mohamud’s e-mail was intercepted incidentally, such a search “does not require a warrant, because the search was targeted at a non-US person with no Fourth Amendment right.”
From here, Mohamud and his legal team could ask that the 9th Circuit re-hear the appeal with a full panel of judges (en banc) or appeal up to the Supreme Court.
“The court’s decision rests on the faulty premise that Americans lose the core protections of the Fourth Amendment when they communicate with family members, friends, business associates, and others abroad,” Patrick Toomey, an American Civil Liberties Union lawyer, said in a statement sent to Ars. (Toomey spoke before the 9th Circuit as an amicus, but he did not formally represent Mohamud.)
“Under this program, the government is spying on the international communications of Americans in vast quantity without ever obtaining a warrant, and it is storing those communications in FBI databases for use in criminal investigations,” he continued. “Contrary to the court’s ruling, this sweeping surveillance violates the constitutional safeguards intended to protect Americans’ privacy.”
Currently, Mohamud remains in custody in a federal prison in Victorville, California. He is scheduled for release in 2037.