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Colorado federal case tests U.S. warrantless surveillance

By Chris Francescani

NEW YORK (Reuters) - Prosecutors have for the first time formally notified a criminal defendant of evidence against him gathered under the U.S. Foreign Surveillance Intelligence Act.

A new filing in a terror case brought in Colorado sets in motion a legal battle over the constitutionality of surveillance done without a warrant, which experts expect to reach the U.S. Supreme Court.

Court documents show that prosecutors in Colorado filed notice on Friday in a case against Jamshid Muhtorov, an Uzbek refugee in suburban Denver, that they intend to introduce "information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act," or FISA.

U.S. Department of Justice representatives did not immediately respond to a request for comment.

The decision to introduce such evidence for the first time in a criminal case is the result of an internal Justice Department debate about notifying defendants of evidence obtained through legally untested surveillance practices, the New York Times has reported.

The decision also comes amid ongoing revelations from former National Security Agency contractor Edward Snowden about the global extent of U.S. government surveillance programs.

In February - prior to Snowden's revelations - the U.S. Supreme Court dismissed a case led by Amnesty International challenging the 2008 expansion of FISA.

The expansion gave legal authority to warrantless surveillance on U.S. soil, which began under former U.S. President George W. Bush.

In the Amnesty case, the justices voted 5-4 that the plaintiffs had no legal standing because they couldn't prove they were under surveillance.

"We welcome the government's belated recognition that it must give notice to criminal defendants who it has monitored under the most sweeping surveillance law ever passed by Congress," said Patrick Toomey, staff attorney for the American Civil Liberties Union, which represented Amnesty in that case, in a statement on Saturday.

Toomey accused the Department of Justice of avoiding judicial review of its surveillance programs by withholding such evidence until now.

"We're hopeful that this unconstitutional law will finally be invalidated," Toomey said.

In the Colorado case, Muhtorov, 35, is charged with providing and attempting to provide material support to a designated foreign terrorist organization.

He was detained at a Chicago airport in January 2012.

Court documents in the case say Muhtorov was heading overseas to fight on behalf of the Islamic Jihad Union, a Pakistan-based extremist group that opposes secular rule in the U.S.-backed former Soviet republic of Uzbekistan and seeks to replace the current regime there with a government based on Islamic law.

If convicted of the charge against him, Muhtorov faces up to 15 years in prison.

An FBI affidavit for Muhtorov's arrest said German authorities in 2007 disrupted an IJU plot and arrested three operatives of the group targeting unidentified facilities with explosives. It said Turkish authorities separately seized weapons and detained "extremists with ties to the IJU."

The court affidavit also said the organization claimed responsibility for attacks in 2008 that targeted coalition forces in Afghanistan, including a suicide attack against an unidentified U.S. military post.

The FBI began monitoring his telephone calls and email messages last March, including a conversation in July in which he told his daughter he would never see her again "but if she was a good Muslim girl he will see her in heaven," the affidavit said.

(Additional reporting by Robert Boczkiewicz; editing by Gunna Dickson)

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