by Trevor Aaronson, The Intercept:
By withholding evidence of warrantless spying, the government avoided a court challenge to controversial mass surveillance — which is now before Congress.
FAZLIDDIN KURBANOV IS a barrel-chested man from Uzbekistan who came to the United States in 2009, when he was in his late 20s. A Christian who had converted from Islam, Kurbanov arrived as a refugee and spoke little English. Resettled in Boise, Idaho, he rented an apartment, worked odd jobs, and was studying to be a truck driver.
But about three years after entering the U.S., around the time he converted back to Islam, Kurbanov was placed under FBI surveillance. According to emails and internet chat logs obtained by the government, Kurbanov was disgusted by having seen Americans burn the Quran and by reports that an American soldier had tried to rape a Muslim girl. “My entire life, everything, changed,” Kurbanov wrote in a July 31, 2012 email.
After the FBI assigned one informant to live with him and another informant to attend his truck-driving school, Kurbanov was arrested in May 2013. Prosecutors accused him of providing material support to the Islamic Movement of Uzbekistan and possessing bomb-making materials.
During Kurbanov’s trial, the government notified him that his conversations with an alleged Islamic Movement of Uzbekistan associate based in Pakistan had been intercepted. The spying, federal prosecutors said, had been authorized under the Foreign Intelligence Surveillance Act of 1978, which regulates the monitoring of agents of foreign governments and terrorist organizations. Kurbanov was convicted at trial and sentenced to 25 years in prison, after which he’ll be deported to Uzbekistan. He is an apparent success story for U.S. counterterrorism officials. If there was any doubt about Kurbanov’s propensity for violence, he eliminated it by stabbing a prison warden in California, an act for which he is now facing additional charges.
But Justice Department lawyers gained their conviction against Kurbanov after failing to disclose a legally significant fact: Kurbanov’s conversations with his alleged terrorist associate had been captured through PRISM, a National Security Agency mass surveillance program whose existence was revealed in documents provided by whistleblower Edward Snowden. Under PRISM, the government obtains communications directly from at least eight large technology companies without the need for warrants, a type of practice authorized in 2008, when Congress provided new surveillance powers under FISA.
While traditional FISA authority permits spying on a particular person or group through warrants issued by the secret Foreign Intelligence Surveillance Court, under the new powers, codified in FISA Section 702, monitoring is approved in bulk by the court through what is essentially a recipe for mass surveillance. Once approved, such a recipe can be used against thousands of targets. Under Section 702 authority, the NSA is currently monitoring digital communications of more than 100,000 people; it swept up an estimated 250 million internet communications each year as of a 2011 Foreign Intelligence Surveillance Court opinion. The FBI frequently searches Section 702 databases when it opens national security and domestic criminal “assessments,” precursors to full investigations.
According to a slide in an NSA presentation, provided by Snowden and published for the first time today by The Intercept, the interception of Kurbanov’s conversations was a “Reporting Highlight” for PRISM. The document indicates that the NSA captured Kurbanov’s Skype conversations from October 2012 through April 2013, roughly the same period the FBI was investigating him with undercover informants. It further details how an NSA unit in April 2013 issued a report describing “how Kurbanov believed he was under surveillance (which he is by the FBI) but was cautiously continuing his work, which was not specified — could be raising money for the IMU or explosive testing.” The alleged terrorist associate with whom Kurbanov was communicating “wanted Kurbanov to set this work in motion, probably related to sending money back to the IMU,” the document added.
The government is obligated to disclose to criminal defendants when information against them originates from Section 702 reporting, but federal prosecutors did not do so in Kurbanov’s case. In fact, when Kurbanov’s lawyers demanded disclosure of FISA-related evidence and the suppression of that evidence, Attorney General Eric Holder asserted national security privilege, claiming in a declaration that disclosure of FISA information would “harm the national security of the United States.” Kurbanov’s lawyer, Chuck Peterson, declined to comment about the government’s use of Section 702 surveillance against his client.
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