Zazi got a super-belated warrantless surveillance notice while no one was looking

After the Snowden leaks, government surveillance defenders’ best and most often-cited example about the value of post-9/11 electronic spying programs was the discovery of Najibullah Zazi in 2009, just days before an intended bombing of the New York City subway.  Zazi, who had trained with Al Qaeda in Pakistan, had made the mistake of sending an email to a Qaeda-associated e-mail account that the government had targeted for warrantless surveillance under the FISA Amendments Act, and the plot was foiled.

Another thing that happened after the Snowden leaks was that it came to wider light that national security prosecutors had been concealing from defendants the fact that they faced evidence derived from FISA Amendments Act surveillance. As a result, no one knew he had standing to challenge the constitutionality of that law. Solicitor General Donald Verrilli, who had told the Supreme Court that the Justice Department had a legal obligation to notify defendants when they faced such surveillance, forced through a change in that practice, and the Justice Department began notifying a handful of defendants. See Power Wars chapter 11 (Institutionalized: Surveillance 2009-2015), section 8 (Evidence Derived from Warrantless Surveillance).

But it never notified Zazi, which was puzzling. When the Privacy and Civil Liberties Oversight Board issued its big report on the program in July 2014, Marcy Wheeler observed on Emptywheel that it had seemingly overlooked some examples of defendants who looked like maybe they should  have received notice but had not. Zazi was the clearest cut example of these, given how much the government was openly saying that FISA Amendments Act surveillance had specifically prompted the investigation into him.

In writing an article published tonight about several recent notices to defendants, I learned that the government, when no one was paying attention, had super-belatedly notified Zazi in July 2015. It was no secret that his email had been incidentally intercepted under that program, so this isn’t exactly news – especially since he’s not challenging it. But there it is.

Bonus: Another little-noticed notice, if you will, was in a case arising in the Northern District of Ohio – notices went out last December. When I reconstructed the meeting at which Deputy Attorney General Jim Cole decided to start notifying defendants for that section of Power Wars, I learned that the U.S. Attorney for the Northern District of Ohio, Steven Dettelbach, was one of the federal prosecutors who called into the meeting. That was mysterious at the time; there was an obvious reason why every other U.S. attorney participating in the meeting had a reason to be there. Knowing this case was in the works makes it make sense that Dettelbach was invited to weigh in, too.

Here’s the Zazi notice: