WASHINGTON - The Justice Department has informed a former New York man who is serving a 15-year prison sentence over a terrorism-related conviction that his communications were subjected to surveillance without warrants before his arrest.
It was the third time the department has provided such notice since changing a practice last summer that had concealed the presence of evidence derived from wiretapping defendants without a warrant. It also was the first time the notice involved a completed case.
But Loretta Lynch, the U.S. attorney for the Eastern District of New York, told the inmate, an Albanian citizen named Agron Hasbajrami, that because he gave up a right to appeal when he pleaded guilty in 2012, it is not likely that he can reopen his case over the matter.
“In the government’s view, this supplemental notification does not afford you a basis to withdraw your plea or to otherwise attack your conviction or sentence because you expressly waived those rights, as well as the right to any additional disclosures from the government, in your plea agreement,” she wrote to him in a letter, which also was filed in court.
Still, Lynch wrote, because Hasbajrami is trying to vacate his conviction on other grounds, he can add the surveillance matter to his claims.
Hasbajrami was arrested in September 2011 at Kennedy International Airport as he was preparing to fly abroad. Accused of sending money to an unidentified terrorist group in Pakistan and planning to go join the group, he could have faced 60 years in prison if convicted at trial. He agreed to plead guilty in exchange for capping his sentence at 15 years.
The previous two notifications went to a Colorado man whose case had not yet gone to trial and to an Oregon man who had been convicted but not yet sentenced. The Colorado man has already filed a first-of-its-kind challenge to the constitutionality of the FISA Amendments Act of 2008, which authorized wiretapping without a warrant.
Last year, the Supreme Court rejected a challenge to the 2008 law because the plaintiffs could not prove they had been wiretapped under it. Solicitor General Donald Verrilli told the justices that the Justice Department was obliged to notify criminal defendants who faced evidence derived from such surveillance, and who would have standing to challenge the law.
But it later emerged that the practice of the Justice Department’s National Security Division was not to provide such notice in a compound investigation: When warrant-free wiretapping led to an individual wiretap order, which in turn led to evidence, prosecutors told the defendant only that the evidence had come from the wiretap order.
As a result, no defendant knew if he had standing to challenge the 2008 law. In August, Verrilli pushed through a change in the practice, leading to a review of pending and past cases.
It remains to be seen whether the department will provide such a notice to any inmates who were convicted and sentenced after a trial. At a Senate confirmation hearing Tuesday, the acting chief of the National Security Division, John Carlin, said the review would continue.
Carlin also pointed to a recent filing in the Oregon case in which the department explained the revised policy, telling Sen. Martin Heinrich, D-N.M., that he would distribute it to prosecutors across the country “so they know exactly what our position is on that issue.”
The filing also rejected accusations - including in a letter by Heinrich and two other senators - that the Justice Department had misled the Supreme Court. Heinrich did not raise that issue Tuesday.
Front Section, Pages 4 on 02/27/2014