By Austin Nolen
Two recently-unsealed motions in the prosecution of Keonna Thomas, a North Philadelphia woman alleged to have attempted to join the Islamic State, show how the national debate over government surveillance is playing out in criminal cases.
The first motion, unsealed last week at the request of The Declaration, alleges that government investigators used controversial surveillance programs to obtain key evidence.
Thomas’ attorneys also argue that because these surveillance programs may have been used as leads to find evidence which will be introduced in court, the government is required to disclose the use of those programs.
In the motion, defense attorneys allege that, because their client allegedly communicated with terrorists overseas, those communications may have been picked up by surveillance under Section 702 of the Foreign Intelligence Surveillance Act Amendments Act of 2008.
Section 702 authorizes the government to intercept foreign communications incidentally routed through the U.S. by the global communications system.
Prior to 2008, intelligence agencies were required to obtain an individual warrant for each foreign message which happened to be routed through domestic networks.
However, Section 702 can also incidentally capture communications from Americans to overseas targets – communications that can then be saved and queried by government agents.
Because the three individuals who allegedly conspired with Thomas are all terrorists located overseas, her lawyers argue that her communications could easily have been swept up under Section 702 or another, similar program authorized as part of the same act in 2008.
As previously reported by The Declaration, Thomas’ alleged co-conspirators are Mohamed Abdullahi Hassan, also known as Mujahid Miski, who was recently arrested in Somalia, Sheikh Abdullah al-Faisal, a Jamaican cleric, and an ISIL fighter by the alias Abu Khalid al Amriki, who was apparently killed in 2015.
Thomas’ lawyers also discuss the Section 215 program, under which the National Security Agency engaged in bulk collection of records indicating information such as the numbers called by Americans and the length of those calls, also known as metadata.
Moreover, the attorneys allege, the government may have used these programs to obtain tips which led to evidence against their client, requiring prosecutors to turn over information about how exactly Thomas was surveilled.
As Thomas’ defense team argues, the government failed to inform other defendants that they had been surveilled under Section 702 until it “altered course in 2013, but only after a public outcry” and that “even today, the government has refused to explain how it interprets its duty” to inform defendants that evidence against them was indirectly derived from Section 702.
They also note that prosecutors have continued to argue that no defendant is entitled to discover whether or not evidence against them was derived through the Section 215 program.
In a response motion, unsealed one day after the defense motion, prosecutors claim that they are not introducing any evidence indirectly derived from any classified surveillance of Thomas, and that the judge hearing the case has already agreed.
Prosecutors point to the Classified Information Procedures Act of 1980, which governs the disclosure and use of classified information in criminal cases.
According to Melanie Reid, a law professor and former federal prosecutor, Section 4 of CIPA “allows the government to obtain a court order limiting discovery of certain classified information.”
As Reid told The Declaration, in order for prosecutors to get an order limiting discovery, “they basically have to show to the court that the classified information is not discoverable, because it is not relevant.”
Prosecutors in the Thomas case sought and obtained a sealed order under CIPA Section 4 late last year. They argue that, if Thomas was subject to any classified surveillance techniques, Judge Michael M. Baylson has already determined that no court evidence was derived from that surveillance when he granted the Section 4 order.
In response, defense attorneys filed a motion asking that, if Judge Baylson is not willing to grant full discovery, that they be allowed to make a presentation to him in more detail about the ways in which classified surveillance might be relevant to the trial.
After that presentation, Thomas’ defense team suggests, the judge could reevaluate the material previously protected by the Section 4 order to determine if any of it should be released to the defense.
Judge Baylson has indicated he intends to rule on the surveillance issue by August 19th. Jury selection in the case is set for October 13th and the trial will begin on October 17th.
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