In the first filing of its kind, a criminal defendant who was notified that his communications were monitored under the FISA Amendments Act of 2008 today challenged the law’s constitutionality and the admissibility of evidence obtained under it. The defendant, Jamshid Muhtorov, is represented in the motion by the Federal Public Defender’s Office, the American Civil Liberties Union, and the ACLU of Colorado.

The motion argues that the FISA Amendments Act violates the Fourth Amendment because it permits the government to collect and access the international communications of U.S. residents in bulk, without individualized court review.

“The FISA Amendments Act affords the government virtually unfettered access to the international phone calls and emails of U.S. citizens and residents. We’ve learned over the last few months that the NSA has implemented the law in the broadest possible way, and that the rules that supposedly protect the privacy of innocent people are weak and riddled with exceptions,” said ACLU Deputy Legal Director Jameel Jaffer. “Surveillance conducted under this statute is unconstitutional, and the fruits of this surveillance must be suppressed.”

The Supreme Court dismissed the ACLU’s civil lawsuit challenging the FISA Amendments Act last February on the grounds that the ACLU’s plaintiffs – which included Amnesty International USA, Human Rights Watch, and The Nation magazine – could not prove their communications had been collected.

During the litigation, the government assured the Supreme Court that criminal defendants who were actually monitored under the statute would be given a chance to challenge its constitutionality. It was later revealed, however, that the Justice Department had a policy of concealing from criminal defendants the role that the FISA Amendments Act had played in their prosecutions. The Justice Department recently changed its policy, and Muhtorov is the first criminal defendant to receive notice that he was spied on under the law. Muhtorov, a former human rights advocate in his native Uzbekistan who was admitted to the U.S. as a political refugee, is accused of attempting and conspiring to provide material assistance to a resistance group opposed to the repressive Uzbek regime.

“For five years the government insulated this statute from judicial review by concealing from criminal defendants how the evidence against them was obtained, but the government will not be able to shield the statute from review in this case,” said Mark Silverstein, legal director of the ACLU of Colorado.

The President’s Review Group on Intelligence and Communications Technologies, which released its report last month, found that surveillance under the law does not sufficiently protect the privacy of U.S. citizens or residents and should be subjected to a number of significant restrictions – including a bar on the government’s use of evidence obtained through such surveillance in criminal proceedings like Muhtorov’s.

Lawyers on today’s motion are Jaffer, Alex Abdo, Patrick Toomey, Brett Max Kaufman, and Nathan Freed Wessler of the national ACLU; Silverstein and Sara J. Rich of the ACLU of Colorado; and Virginia L. Grady, Brian Leedy, Kathryn Stimson and Warren R. Williamson of the Office of the Federal Public Defender for the Districts of Colorado and Wyoming.

Prepared Remarks of ACLU of Colorado Executive Director Nathan Woodliff-Stanley on CO House Bill 1048, Concerning Religious Freedom for Student Groups at State Institutions of Higher Learning.
Thank you, Madame Chair and members of the Committee. My name is Nathan Woodliff-Stanley, Executive Director of the ACLU of Colorado, and I speak in opposition to House Bill 1048.
This bill would force Colorado public universities to recognize and support student groups that discriminate in violation of longstanding university policies.
I want to be clear that the ACLU strongly supports religious freedom, freedom of association, and freedom of speech, and students in colleges and universities are free to hold beliefs, express their opinions, and form groups as they wish. What they do not have the right to do is to get official recognition and public funding for these groups when they violate equal protection or nondiscrimination policies. Public colleges and universities should strive to ensure that educational opportunities are open to all, including student organizations and leadership opportunities.
The Supreme Court made clear in Christian Legal Society vs. Martinez that a university may impose viewpoint-neutral conditions on student groups such as requiring that groups receiving university funds or other privileges be open to all students. This bill essentially seeks to circumvent that ruling. Students are free to believe what they wish, but discriminatory conduct does not have to be supported and recognized. Any mandates on group conduct should be to prevent discrimination, not to allow or promote it.
The bottom line is that state funding of discriminatory organizations is wrong and harmful to students and higher education. Please vote no on HB 1048.

Class exercise about prostitution not “sexual harassment,” say national organizations in response to intimidation and threats by the University of Colorado-Boulder directed at sociology professor Patti Adler.
Joint statement warns CU-Boulder's violation of academic freedom could have chilling effects across higher education

BOULDER–A joint statement released today by the National Coalition Against Censorship (NCAC), ACLU of Colorado (ACLU-CO), Foundation for Individual Rights in Education and Student Press Law Center takes aim at the University of Colorado Boulder for its attempts to silence and intimidate Professor Patti Adler because of a class exploring the issue of prostitution.
The organizations are calling on the University to re-instate Professor Adler's popular "Deviance in U.S. Society" course–with Adler as instructor–"without further reviews or conditions." Adler reported in December that she had been advised that the course was being cancelled, and that she was given the choice to return, but not teach the course, or to take early retirement. The University's actions were reportedly due to concerns that a classroom exercise in which teaching assistants role-play as prostitutes might constitute sexual harassment. Adler has used the exercise for many years in the course, which regularly attracts 500 students.
"We felt it was critical to organize a national response in this case both to support academic freedom and free speech on campus, and to clarify that sexual harassment laws and policies were never intended to chill legitimate academic inquiry into subjects like sexuality and sexual deviance. The distinction is essential to a myriad of important subjects of university study, such as Henry Miller's Tropic of Cancer and Courbet’s painting L’Origine du monde," said NCAC Executive Director Joan Bertin.
"Classroom discussion of issues related to sex and sexuality is not sexual harassment," said Mark Silverstein, ACLU of Colorado Legal Director. "By suggesting otherwise, and raising the possibility of disciplinary proceedings, the CU administration unjustifiably threatens to silence not only Professor Adler, but any professor whose classroom teaching may touch on sensitive topics."
The statement outlines a decade of landmark Supreme Court decisions defining sexual harassment, which must be "severe, pervasive, and objectively offensive" behavior of a sexual nature. In contrast, a "mere offensive utterance" in the classroom or an "isolated instance" does not amount to sexual harassment.
NCAC and the other co-signers have dismissed CU Boulder's latest offer to reinstate Adler after a faculty review of her class as insufficient "since this course was apparently singled out for extraordinary scrutiny based solely on the content, in violation of fundamental First Amendment principles." Such a review "inevitably has a chilling effect, not only on Professor Adler, but on the faculty as whole and even on faculty at other Universities."