MIAMI — The lawyer for a man on trial in a South Florida armored car robbery is seeking cellphone records possibly produced by a recently revealed National Security Agency surveillance program, according to federal court documents.
Attorney Marshall Dore Louis said in the court papers that the Justice Department is required to turn over the phone records if they exist because they could be crucial to his client's defense. Louis represents defendant Terrance Brown in the Broward County bank robbery case, which involved the killing of an armored car messenger in October 2010.
Prosecutors say they are missing a month of Brown's records from two phones because his service provider at the time, MetroPCS, no longer has them. But Louis says the NSA most likely collected data on Brown's calls and that the defense is entitled to access because they may show Brown wasn't involved in a previous July robbery attempt.
"The government must be ordered to turn over the records for the two telephones that it attributes to Mr. Brown for the dates which are relevant to this case," Louis said in the motion.
U.S. District Judge Robin Rosenbaum initially told the Justice Department to respond by the end of Wednesday but granted a request from prosecutors for an extra week. They must respond to whether disclosure of the data — if they exist — would harm national security. The judge also said she would review whether the NSA surveillance, authorized by the secret Foreign Intelligence Surveillance Court, was legally conducted.
The NSA program and another surveillance effort known as Prism came to light last week when the British newspaper The Guardian published classified material leaked by Edward Snowden, a former employee at an NSA contractor. Snowden is now in Hong Kong and said he revealed the surveillance programs because he believes they are an unwarranted and possibly illegal government intrusion into privacy.
Although the one leaked court order mentions only Verizon phone records, numerous U.S. officials have said the phone data surveillance program covers many other service providers. The program has been in place since 2006 and reauthorized several times by Congress.
George Washington University law professor Jonathan Turley, who has litigated national security cases, said he hadn't heard of this approach being used in court before.
"The chances that he will succeed in pulling these calls out of the bowels of the federal government are rather slim," Turley said.
But he said it would make for a novel case because the government usually invokes some sort of protection against disclosure, but in this case it has already acknowledged the program.
"It would be interesting to see if the government would claim a national security privilege," Turley said.
He noted that the past 48 hours have already seen "an explosion of demands in litigation" challenging the government's phone records collection program.
"It was a game-changer when the government acknowledged the program, and you're going to see additional lawsuits in the next few weeks and months," Turley said.
In the Florida case, Brown and five others are accused of attempting to rob several armored cars outside banks in Broward County. On Oct. 1, 2010, prosecutors say the group's attempt to rob a Brinks messenger resulted in a shootout and the slaying of Brinks employee Alejandro Nodarse Arencibia.
The actual triggerman, Nathaniel Moss, pleaded guilty to several charges and is serving a life prison sentence. Brown, accused of being the mastermind, and the others currently on trial pleaded not guilty.
Associated Press writer Pete Yost in Washington contributed to this report.
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