Warrantless electronic surveillance of non-U.S. citizens was ruled to be permissible by a federal judge in Oregon even when it incidentally captures communications by citizens.
U.S. District Judge Garr King in Portland rejected a request to throw out the conviction of a man in a bomb plot who challenged the government’s use of evidence against him that had been gathered by surveillance of suspected terrorists overseas.
“When I balance the intrusion on the individual’s interest in privacy, namely the incidental collection of U.S. persons’ communications, against these special needs when the government targets a non-U.S. person believed to be outside the United States, I conclude the foreign intelligence exception applies and no warrant is required,” the judge said.
Mohamed Osman Mohamud, a naturalized U.S. citizen originally from Somalia, was convicted after a 14-day jury trial last year of attempting to blow up a van he believed was loaded with explosives at an annual Christmas tree-lighting ceremony in Portland. He may face a sentence of as long as life in prison.
Mohamud exchanged about 150 e-mails with Samir Khan, a now-dead al-Qaeda terrorist and publisher of an online magazine Jihad Recollections, according to the government. He also exchanged e-mails with Amro Ali-Ali, a Saudi national who was in Yemen at the time and has since been in custody in Saudi Arabia for terrorism offenses, according to the government.
The Federal Bureau of Investigation used an undercover operative who pretended to be an associate of Ali-Ali to contact Mohamud, who wanted to become “operational.” He was arrested in November 2010 when he thought he was about to set off an 1,800-pound bomb, according the government.
Stephen Sady, a federal public defender representing Mohamud, didn’t immediately return a call after regular business hours seeking comment on today’s ruling.
The case is U.S. v. Mohamud, 10-cr-00475, U.S. District Court, District of Oregon (Portland.)