U.S. v. Belfield, s. 81-2152

• Decision Date: 05 November 1982
• Docket Number: Nos. 81-2152,81-2155,s. 81-2152
• Citation: 692 F.2d 141
• Parties: UNITED STATES of America v. David BELFIELD, aka Daoud Salahuddin Ali Abdul-Mani, aka Lee Curtis Manning, Appellant. UNITED STATES of America v. David BELFIELD, aka Daoud Salahuddin Horace Anthony Butler, aka Ahmed Rauf, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 141

692 F.2d 141

223 U.S.App.D.C. 417

UNITED STATES of America v. David BELFIELD, aka Daoud Salahuddin Ali Abdul-Mani, aka Lee

Curtis Manning, Appellant.

UNITED STATES of America v. David BELFIELD, aka Daoud Salahuddin Horace Anthony Butler, aka Ahmed Rauf, Appellant.

Nos. 81-2152, 81-2155.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 5, 1982.

Decided Nov. 5, 1982.

Appeals from the United States District Court for the District of Columbia (Miscellaneous No. 81-00215).

Linda Jacobson with whom William J. Mertens, Washington, D.C., was on the brief for appellant in No. 81-2152.

Michael Stephen Spearman, Washington, D.C. (appointed by this court) with whom Thomas Abbenante, Washington, D.C., was on the brief for appellant in No. 81-2155.

Donald B. Nicholson, Atty., Dept. of Justice, with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, Lawrence Lippe and Robert W. Ogren, Attys., Dept. of Justice, Washington, D.C., were on the brief for appellee.

Before WILKEY, BORK and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

WILKEY, Circuit Judge:

This appeal is taken from a determination by the district court that certain electronic surveillance to which appellants were incidentally subject was legal under the Foreign Intelligence Surveillance Act of 1978. ¹ The district court made that determination ex parte after examination of an in camera Exhibit. Appellants challenge the procedures followed by the district court on both statutory and constitutional grounds. We affirm.

I. BACKGROUND

A. Factual Background

Appellants, Horace Butler and Ali Abdul-Mani, were charged in the Superior Court of the District of Columbia with conspiracy to murder, accessory after the fact, grand larceny, unauthorized use of vehicle, and perjury in connection with the assassination on 22 July 1980 of Ali Akbar Tabatabai, the President of the Iran Freedom Foundation. Prior to trial, appellants requested disclosure of any electronic surveillance covering them. The Government answered that each appellant was overheard once on separate occasions during the course of electronic surveillance authorized by the U.S. Foreign Intelligence Surveillance Court (USFISC) pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA). Appellants were not the targets of this surveillance. Rather, they were incidentally overheard during the course of surveillance of another target.

The Government presented the logs of the overhears to Judge Ugast of the Superior Court for in camera examination. He ruled from the bench on 26 October 1981 that the overhears were irrelevant, immaterial, and not discoverable under Brady v. Maryland. ² The Government did not use the overhears as evidence in the case nor, it claims, any fruits thereof. Appellants were subsequently convicted as accessories after the fact to first degree murder and of perjury and were sentenced to prison terms.

Meanwhile, on 8 October 1981 the Government filed a petition in the U.S. District Court for the District of Columbia for a judicial determination of the legality of the surveillance, as authorized in 50 U.S.C. Sec. 1806(f). The Government asked for an ex parte determination based on an in camera Exhibit containing the logs of the overhears, the application for surveillance and supporting papers, and the orders of USFISC with respect thereto. In support of this request, the Attorney General filed a declaration stating that disclosure of these materials or an adversary hearing would harm the national security of the United States. Appellants filed a response requesting disclosure and an adversary hearing.

The district court, per Judge Gasch, ruled on 22 October 1981 that, based upon consideration of the papers filed by the Government and the opposition thereto and the Government's in camera Exhibit, the electronic surveillance at issue was legal. This appeal followed. Appellants are not directly challenging the legality of the surveillance. Rather, they are seeking to participate in the determination of legality. Appellants are challenging the district court's decision to resolve the issue ex parte and in camera. They claim that the district court's failure to order disclosure of the in camera Exhibit and his refusal to allow an adversary hearing on the question of the legality of the surveillance constituted an abuse of discretion under FISA or, alternatively, violated appellants' fifth amendment due process rights and their sixth amendment right to counsel. ³

B. FISA

Electronic surveillance without judicial warrant has been conducted by the Executive branch since at least 1927. ⁴ Its legitimacy was originally based on the Supreme Court's 1928 determination in the Olmstead case that the fourth amendment does not apply to such activities. ⁵ In 1967, in Katz v. United States, ⁶ the Supreme Court overruled Olmstead. The next year Congress passed the Omnibus Crime Control and Safe Streets Act which, in Title III, provided procedures for obtaining electronic surveillance warrants in certain criminal investigations and declared other electronic surveillance by the government or by private parties unlawful. ⁷

This legislation, however, was inadequate to certain national security and intelligence needs, since it required probable cause to believe that a crime was contemplated, and merely deferred but did not eliminate service of the warrant. ⁸ Thus, despite Katz the Executive continued to assume that the fourth amendment's usual but not invariable warrant requirement ⁹ (as opposed to its inflexible requirement of reasonableness) did not apply when the President was acting pursuant to his powers to protect the national security or to conduct the nation's foreign affairs. Such an exception was left available (though not clearly endorsed) by language both in Katz ¹⁰ and in the 1968 statute. ¹¹

In 1972 the Supreme Court again returned to the subject, holding in Keith ¹² that the asserted "national security" exception to the warrant requirement does not exist insofar as purely "domestic threats to the national security" are concerned. ¹³ It explicitly left unaddressed "the issues which may be involved with respect to activities of foreign powers or their agents." ¹⁴ Warrantless Executive surveillance in the latter context continued and was approved by several courts of appeals. ¹⁵

Responding to post-Watergate concerns about the Executive's use of warrantless electronic surveillance, Congress, with the support of the Justice Department, acted in 1978 to establish a regularized procedure for use in the foreign intelligence and counterintelligence field. With a few exceptions irrelevant to our concerns, ¹⁶ FISA requires a court order authorizing foreign intelligence electronic surveillance. To get such an order, a federal officer, having first obtained the Attorney General's approval, must submit an application to one of the seven USFISC judges. ¹⁷ The application must detail among other things the identity of the target; the information relied on by the Government to demonstrate that the target is a "foreign power" or an "agent of a foreign power;" evidence that the place where the surveillance will occur is being used, or is about to be used, by the foreign power or its agent; the type of surveillance to be used; the minimization procedures to be employed; and certification that the information being sought is "foreign intelligence information." ¹⁸

Before issuing the order, the USFISC judge must make specific findings, including that the proposed minimization procedures are proper and that there is probable cause to believe that--

(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States; and

(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power .... ¹⁹

Any evidence obtained or derived from the electronic surveillance may be used in a criminal proceeding only in accordance with the procedures outlined in 50 U.S.C. Sec. 1806. First, authorization to use the information in a criminal proceeding must be obtained from the Attorney General. ²⁰ Then, the Government must notify the court in which the criminal proceeding is pending and the "aggrieved person" against whom the information will be offered. ²¹ The aggrieved person may make a motion to suppress on the ground that the surveillance was illegal.

Alternatively, as in this case, even when the Government has purported not to be offering any evidence obtained or derived from the electronic surveillance, a criminal defendant may claim that he has been the victim of an illegal surveillance and seek discovery of the logs of the overhears to ensure that no fruits thereof are being used against him. ²² In either event, the Government may forestall the defendant's suppression or discovery motions by filing a petition with the United States District Court in the area where the criminal trial is taking place asking for a determination of the legality of the surveillance. ²³

If the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, then the district court is supposed to make this determination ex parte based upon an in camera examination of the relevant materials. The court may disclose these materials to the aggrieved person "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance." ²⁴ Congress was adamant in enacting FISA that the "carefully drawn procedures" of this section are not to be ...