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Criminal cases challenging FISA surveillance

Section 702 of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. ยง 1881a, as added by the FISA Amendments Act of 2008, permits the Attorney General and the Director of National Intelligence to conduct foreign intelligence surveillance targeting the communications of non-U.S. persons located abroad. The government need not establish probable cause that the target of electronic surveillance is a foreign power or agent of a foreign power, nor must the government specify the nature and location of the facilities or places that surveillance will occur. Communications of U.S. citizens and residents are frequently collected "incidentally" if those U.S. persons are communicating with a targeted foreigner.

There's a Clearinghouse special collection -- here that brings together all the litigation addressing this part of FISA. The list below is a subset--it includes the criminal cases in which the government notified the court that FISA surveillance was relevant to the case, and the defendant therefore challenged the lawfulness of that surveillance.

Note: There are several cases in which the government provided this kind of notice, but the defendant did not challenge the surveillance. These are not listed below or otherwise incorporated in the Clearinghouse. They include:

  • United States v. Khan (District of Oregon; No. 3:12-CR-00659)
  • United States v. Zazi (Eastern District of New York; No. 1:09-CR-00663)
  • United States v. Mihalik (Central District of California; No. 2:11-CR-00833)


The below cases represent a special subset of the full Clearinghouse collection.
Your search returned 7 results Save Search As:       
1 United States v. Aws Mohammed Younis Al-Jayab
1:16-cr-00181 (N.D. Ill.)
Filed 2016 - Case Ongoing
Aws Mohammed Younis Al-Jayab
National Security
NS-IL-0003
Coding Complete
This is the eighth time the Justice Department has notified a criminal defendant that evidence being used against him came from a FISA warrantless wiretap, a move that is expected at some point to set up a Supreme Court test of whether such eavesdropping is constitutional. (As explained below, however, this case was resolved by guilty plea and ... [view]
2 United States v. Mohammad
3:15-CR-00358-JZ (N.D. Ohio)
Filed 09/30/2015 - Case Ongoing
Yahya Farooq Mohammad
National Security
NS-OH-0002
Coding Complete
On September 30, 2015, Yahya Farooq Mohammad, Ibrahim Zubair Mohammad, Asif Ahmed Salim, and Sultane Roome Salim were indicted in U.S. District Court of the Northern District of Ohio for conspiracy to provide and conceal material support and resources to terrorists, for providing material support and resources to terrorists and for conspiracy to ... [view]
3 United States v. Gartenlaub
8:14-cr-00173 (C.D. Cal.)
Filed 2014 - Case Ongoing
Keith Gartenlaub
National Security
NS-CA-0029
Coding Complete
The Foreign Intelligence Surveillance Act (FISA) requires the government to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before it may conduct any domestic electronic surveillance to acquire foreign intelligence information. The warrant applications are made ex parte and must include a sworn statement by a federal ... [view]
4 United States v. Muhtorov
1:12-cr-00033-JLK (D. Colo.)
Filed 2012 - Case Ongoing
Bakhtiyor Jumaev
National Security
NS-CO-0001
Coding Complete
In early 2012, the federal government initiated criminal prosecution of Jamshid Muhtorov (January 19) and Bakhityor Jumaev (March 14) in the U.S. District Court for the District of Colorado. The government charged each of these defendants with providing, conspiring to provide, and attempting to provide material support and resources to a foreign ... [view]
5 United States v. Qazi
0:12-cr-60298 (S.D. Fla.)
Filed 2012 - Closed 2018
the United States
the United States Attorneys' Office
National Security
NS-FL-0001
Coding Complete
Two brothers, both naturalized U.S. citizens from Pakistan, were arrested while plotting to conduct a terrorist attack using a weapon of mass destruction in New York City in November 2012. They were indicted on two counts: (1) conspiring to provide material support to terrorists and (2) conspiring to use a weapon of mass destruction. This case was ... [view]
6 United States v. Hasbajrami
1:11-cr-00623 (E.D.N.Y.)
Filed 09/06/2011 - Case Ongoing
no defendants on record
National Security
NS-NY-0012
Coding Complete
This case is the third time the government notified a criminal defendant that the evidence used against him was from a FISA warrantless wiretap. These notifications are eventually expected to reach the Supreme Court for a determination of whether or not the 2008 FISA Amendments Act is constitutional. All the cases regarding criminal challenges to ... [view]
7 United States v. Mohamud
3:10-CR-00475-KI-1 (D. Or.)
Filed 2010 - Case Ongoing
Mohamed Osman Mohamud
National Security
NS-OR-0003
Coding Complete
On November 19, 2013, the Department of Justice notified Mohamed Osman Mohamud, the criminal defendant in this case, that it had used evidence from a FISA warrantless wiretap in the proceedings leading to Mr. Mohamud's conviction. This was the second time the DOJ notified a criminal defendant of this information, following a new, broader ... [view]
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