Defense in Philly ISIL Case Suggests Government Hiding Information

By Austin Nolen

During a pre-trial hearing in the case of Keonna Thomas, whom prosecutors have accused of attempting to join the Islamic State, defense attorneys suggested that their client may have been subject to surveillance by intelligence agencies. According to Thomas’ attorneys, the government has not been forthcoming about surveillance techniques, so they may seek a court order to compel the government to answer their questions.

The programs under which defense attorneys suggest Thomas was surveilled include Section 702 of the Foreign Intelligence Surveillance Act, as amended, and Executive Order 12333. Section 702 allows the government to collect communications in bulk as long as the targets are outside of the United States. However, the program’s wide sweep can pick up a large number of communications made by American citizens, without specific warrants.

According to John Napier Tye, who formerly ran the U.S. State Department’s internet freedom operations, the same potential for abuse exists with Executive Order 12333, which likewise permits “incidental” collection of U.S. communications and “does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.”

Prosecutors, however, rebutted the defense team’s claims, arguing that the government had been fully forthcoming in turning over relevant material. Both sides agreed to take more time to resolve the issue privately before asking the court to rule in the matter.

During the same hearing, Judge Michael Baylson indicated he would deny a separate defense request for a more specific set of charges against Thomas. Defense attorneys argued that this step, known as a bill of particulars, was required by the broad scope of the law Thomas is accused of violating, but Baylson said he believed the defense was making arguments similar to those he rejected last December when he denied a motion to dismiss the case.

Baylson stated that the discovery turned over to Thomas negated any of those concerns, but gave defense attorneys an extra week to file new arguments supporting their request for additional information.

Jury selection in the case is scheduled to begin October 13th and the trial itself will begin on October 17th.

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