The government does not have to disclose whether mass surveillance led investigators to a man who’s accused of plotting a suicide bomb attack at a Wichita airport, a federal judge ruled Friday.
The possible existence of that evidence has been an issue in the terrorism case against Terry Loewen, a former avionics technician who was arrested in December 2013 when he tried to bring a van filled with inert explosives onto the tarmac at Mid-Continent Airport. His arrest capped a months-long sting operation in which undercover agents from the Federal Bureau of Investigations posed as co-conspirators.
Loewen has pleaded not guilty to attempting to use a weapon of mass destruction, attempting to use an explosive device to damage property and attempting to give material support to al-Qaida.
U.S. District Judge Monti Belot said in his ruling that “the government has neither admitted nor denied” the existence of any materials gathered under the Foreign Intelligence Surveillance Act in this case.
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Belot said the issue is moot because federal prosecutors have not given notice of their intent to use FISA evidence. He added that what sparse legal authority over the use of FISA materials exists supports the government’s position, and the defense has not cited any legal opinions to the contrary.
Redacted court filings do not indicate exactly how the government zeroed in on Loewen, but Belot noted Friday that prosecutors have already turned over documents indicating the government monitored the defendant’s e-mail and Facebook postings.
The defense team has argued they’re concerned the government may have come across Loewen before their investigation under “constitutionally questionable practices” employed by the National Security Agency, the Central Intelligence Agency or under the FBI’s playbook for domestic investigations. It noted that programs such as the collection of massive amounts of metadata have been called into question on Fourth Amendment grounds of unreasonable search and seizure.
The issue was first raised in November, in which the defense’s filing contended prosecutors have given them no evidence indicating how Loewen first came to the FBI’s attention – a claim which prosecutors denied in a subsequent court document, calling it the “most egregious of the defendant’s claims.” The government contended the information not only has been provided, but noted prosecutors pointed out to the defense in a face-to-face meeting exactly where in the evidence the relevant report was related.
Loewen’s defense attorneys have told the court they intend to pursue an entrapment defense, the key to which is whether Loewen was disposed to commit the alleged crimes before the undercover operation began.
The judge also set a March 31 hearing to hear any motions in the case.