The US Justice Department has informed an inmate that it spied on him without a warrant before his arrest. However, the prisoner has been denied an appeal because he pleaded guilty in exchange for a reduced prison sentence.
Albanian citizen Agron Hasbajrami was sentenced to 15 years in prison after he was arrested in 2011 and accused of sending money to an unidentified Pakistani terrorist group and planning to join them. Hasbajrami initially faced a potential jail term of 60 years, but accepted a reduced sentence in return for pleading guilty.
The district attorney for the Eastern District of New York, Loretta Lynch, informed Hasbajrami that he had been subject to unwarranted spying prior to his arrest under the Foreign Intelligence Surveillance Act (Fisa) of 2008. The law allows the government to tap phone calls and e-mails of citizens without a warrant if the surveillance is primarily linked to foreign suspects overseas.
However, in spite of the reports of warrantless spying, Lynch noted that Hasbajrami could not appeal his case, arguing that by pleading guilty to the charges, he had forfeited that right.
“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 was also filed in court.
Hasbajrami is the third prisoner to be notified that his conviction was, in part, based on evidence gathered by warrantless spying. The practice of keeping evidence gleaned by warrantless surveillance through the Foreign Intelligence Surveillance Act (Fisa) has come under attack by journalists and lawyers over the past year.
The Supreme Court rejected a challenge to the law last year from lawyers and rights groups on the basis that the plaintiffs had no way of proving they had been monitored without warrants under Fisa. However, the Court did rule that criminal defendants who had been subject to Fisa should have the right to challenge the law’s constitutionality. Following the ruling, the Justice Department said that in cases where it had used data gathered under Fisa the defendants would be informed so they could raise constitutional concerns.
The Justice Department subsequently launched a review of all the criminal cases in which evidence gathered through Fisa had been used. In this way some of the defendants in these cases were told that data obtained through warrantless surveillance had been used in their prosecution.
“We have a review under way now,” Attorney General Eric Holder said in an interview with The Washington Post in November. “We will be examining cases that are in a variety of stages, and we will be, where appropriate, providing defendants with information that they should have so they can make their own determinations about how they want to react to it.”
The American Civil Liberties Union (ACLU) maintains that the practice of warrantless surveillance is a breach of the Fourth Amendment which protects citizens from unreasonable searches and seizures.