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Mohamud "is at such a significant disadvantage," Fakhoury said. "He doesn't even have the evidence to make the challenge. That's the whole problem in this whole regime of after-the-fact (informing of suspects)."
Indeed, King said in his ruling that Mohamud's attorneys didn't have classified information provided by prosecutors to King, and therefore could only speculate as to the evidence given falsely or omitted by the government.
"This is insufficient," King said in the ruling. "I realize the difficult position the defense team is in, but the denial of a (hearing) is commonplace in the FISA context."
King held that Mohamud's most persuasive argument was that, even if the original surveillance were lawful, the subsequent use of that information on a U.S. citizen required a warrant. Previous federal appeals court rulings have said that the government needs a warrant to test pills seized in an unrelated search or to search a computer for more information that the warrant sought.
Those rulings, the defense argued, meant King should apply the same standard to the evidence seized.
But King disagreed.
"I do not find any significant additional intrusion," King wrote. "Thus, subsequent querying of (collected data), even if U.S. person identifiers are used, is not a separate search and does not make (such surveillance) unreasonable under the Fourth Amendment."
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