“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link

 

Trump Tenth Circuit judge Allison Eid cast the deciding vote to uphold the conviction of a permanent legal resident for allegedly aiding a foreign terrorist group despite a delay of over six years in bringing the case to trial and the use of surveillance information obtained by the National Security Agency (NSA) and the FBI initially without a warrant, sanctioning such surveillance against all Americans. The December 2021 decision was in US v Muhtorove.

Jamshid Muhtorov came to the US in 2007, after facing persecution from Uzbekistan’s ruling regime. He received political asylum and became a permanent legal resident. Unknown to him, the NSA and the FBI began surveilling his email and telephone communications under the Foreign Intelligence Surveillance Act (FISA) and he was charged in 2012 with attempting to provide material support to a group in Uzbekistan that the government claimed was a terrorist organization. The government did not put him on trial until 2018, and he remained in prison for more than six years before trial.  Muhtorov sought to disclose and to suppress evidence against him obtained through FISA before trial, but both motions were denied. Muhtorov was convicted and appealed to the Tenth Circuit.

In a ruling in which Trump judge Eid provided the deciding vote, the Tenth Circuit majority upheld the conviction and ruled that the FISA surveillance was proper, including warrantless surveillance that sweeps up information on numerous Americans without their knowledge. Specifically, the majority rejected the contention that it was improper for the government to conduct such widespread warrantless surveillance under section 702 of FISA, the controversial provision first revealed by Edward Snowden, under which the NSA sweeps up broad email and other surveillance information on countless Americans who communicate with people in foreign countries, and the FBI then uses it to identify targets to focus on more specifically, as it did with Mr. Muhtorov. The majority claimed that the Section 702 surveillance was “lawful” under the Constitution and that the government “does not need a warrant for the incidental collection” of information on Muhtorov and other Americans when it conducts broad surveillance under Section 702. The majority also upheld the lower court’s refusal to disclose to Mr. Muhtorov the classified information that was used as a basis for Section 702 surveillance and the later FISA warrants concerning him individually.

The majority also rejected the contention that Mr. Muhtorov’s rights under the Sixth Amendment and the Speedy Trial Act were violated by the delay of almost 6 ½ years between his arrest and trial, during all of which he remained in prison. Although acknowledging that 6 ½ years is “an unusually lengthy period of pre-conviction detention,” the majority maintained that there was no violation of Mr. Muhtorov’s rights because, they claimed, the delay was “principally” due to Muhtorov’s broad pre-trial discovery requests and the time that it took to translate materials and manage classified information. (Eid herself wrote the 2-1 decision rejecting similar claims by another Uzbek refugee who was tried along with Muhtorov in US v Jumaev).

Judge Carlos Lucero strongly dissented, based on the majority’s “extreme departure” from “accepted norms of constitutional and procedural law.” With respect to the surveillance issue, Lucero noted that although “U.S. persons do not lose their protected privacy interests when they communicate with foreigners abroad,” the “vast scope” of the information collected and stored by the NSA under Section 702 – more than “250 million internet communications” plus other data – and the “minimally fettered government access to databases” where this information is stored clearly creates the risk of “evisceration of Fourth Amendment protections” for Americans who communicate with foreigners. That is precisely what the record suggested had happened to Muhtorov according to Lucero, although he made clear that the case should have been remanded to develop the record more fully. Lucero’s careful analysis of the record, including classified portions that he could not discuss in his public dissent, indicated that the FBI had improperly searched  or “queried” for information on Muhtorov in the vast section 702 database “prior to the traditional FISA warrant application” concerning him individually, and that the decision to seek a traditional FISA warrant was improperly “influenced” by such “querying,” making the admission of evidence based on that warrant improper.

Judge Lucero also explained that remand to resolve these issues was not necessary, however, because the conviction should have been reversed based on violation of Muhtorov’s right to a speedy trial and his continued detention for some nine years since 2012, so that Muhtorov has effectively “completed his prison sentence before his appeal becomes final.” Based on a careful analysis, Lucero concluded that while some delay was attributable to discovery requests and translation needs, “too much of the delay is directly attributable to discretionary decisions of the government.” This included, Lucero explained, 21 months  when the government “did not notify Muhtorov of the involvement of section 702 evidence in the case against him,”  government delay in beginning the evaluation of what classified information would be disclosed to him “for 46 months,” government delay of over four years before “meaningfully respond[ing]” to “discovery requests,” government “opposing the appointment of cleared defense counsel” to review classified material, and government “failing to adequately resource translation services.” Overall, Lucero concluded, the government’s conduct in “[c]onfining a presumptively innocent individual for over six years” as it “blocks his path to a speedy trial with obstacles of its own creation” is “repugnant to the Sixth Amendment” and should have resulted in reversal.

The ACLU, which was involved in the case, has explained that the decision made possible by Trump judge Eid “endangers Americans’ protections against NSA and FBI spying” and threatens to allow the agencies to “seize and sift through our most sensitive communications.” The case further illustrates the importance, as part of our fight for our courts, of the Senate confirming fair-minded judges who will protect our constitutional rights.