By Joseph Ax
NEW YORK (Reuters) - An Albanian man who pleaded guilty to a terrorism charge can withdraw his plea after the U.S. government disclosed it monitored his communications without a warrant, a federal judge in Brooklyn has ruled, likely setting up a rare constitutional challenge to the controversial practice.
U.S. District Judge John Gleeson said Agron Hasbajrami can reverse his decision because he was denied an opportunity to question the constitutionality of the surveillance before deciding to plead guilty.
The case is one of five in which the Justice Department has provided a criminal defendant with notice of warrantless wiretapping since officials decided last year to change the policy on disclosing such information, according to the American Civil Liberties Union.
The ruling, issued on Friday, will allow Hasbajrami to challenge the surveillance, though Gleeson warned he was not expressing any view on the merits of that argument.
The monitoring is authorized under a 2008 law that allows the government to collect communications without a warrant between Americans and foreign citizens abroad who are intelligence targets. The program began under former President George W. Bush and ended in 2007 before Congress revived portions of it the following year.
Last year, the Justice Department determined that criminal defendants should be notified of such evidence, according to court filings.
A spokeswoman for Brooklyn U.S. Attorney Loretta Lynch, whose office prosecuted Hasbajrami, declined to comment.
A court-appointed attorney for Hasbajrami, Steve Zissou, did not respond to a request for comment. In a court filing on Sept. 20, Zissou said Hasbajrami sought to withdraw his plea "against the advice of counsel."
Hasbajrami was serving a 15-year sentence; he faces up to 60 years if convicted of all counts.
Some other defendants who received warrantless surveillance notices have challenged the program without much success.
Mohamed Mohamud, who was convicted for attempting to blow up what he thought was a car bomb during a sting operation, had his challenge rejected by a federal judge in Oregon earlier this year in the first court ruling to find the wiretapping constitutional. Last week, Mohamud was sentenced to 30 years in prison.
Meanwhile, lawyers for Jamshid Muhtorov, accused of supporting an Uzbek militant group, have filed a constitutional challenge to the warrantless wiretaps in Colorado. A judge has not yet ruled.
The U.S. Supreme Court last year rejected a challenge brought by advocacy groups but did not consider its merits, instead ruling the groups did not have legal standing because they could not show they were injured by the law.
Until the Justice Department’s change in policy, however, no defendant with proper standing would have known about the surveillance, a point Gleeson emphasized.
“Warrantless wiretapping has been controversial, and due in part to the since-revised nondisclosure policy that operated in this very case, there have been few rulings on the practice’s legality,” Gleeson wrote.
Hasbajrami pleaded guilty in 2012 to sending money to a militant group in Pakistan. The government’s disclosure letter was filed in February.
(Reporting by Joseph Ax, additional reporting by Jessica Dye and Mark Hosenball; Editing by Bernard Orr and Ken Wills)