U.S. v. Abu-Jihaad

Decision Date24 January 2008
Docket NumberNo. 3:07CR57 (MRK).,3:07CR57 (MRK).
CourtU.S. District Court — District of Connecticut
PartiesUNTIED STATES of America v. Hassan ABU-JIHAAD.

Dan E. Labelle, Halloran & Sage, Westport, CT, Robert Gerard Golger, Quatrella & Rizio, Fairfield, CT, for Hassan Abu-Jihaad.

Alexis L. Collins, Andrew Levchuk, Richard D. Green, U.S. Dept. of Justice, Washington, DC, Kevin J. O'Connor, William J. Nardini, U.S. Attorney's Office, New Haven, CT, Stephen Benjamin Reynolds, U.S. Attorney's Office, Bridgeport, CT, for Untied States of America.

MEMORANDUM OF DECISION

MARK R. KRAVITZ, District Judge.

In March 2007, Hassan Abu-jihaad was indicted in the District of Connecticut and charged in two counts with providing material support to terrorists in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 2, and with communicating national defense information to persons not entitled to receive it in violation of 18 U.S.C. § 793(d). See Indictment [doc. # 6]. Each of these charges stems from the Government's assertion that Mr. Abu-jihaad transmitted a Battle Group document to Babar Ahmad and Azzam Publications, who are also the subjects of criminal charges in this District. See Indictment [doc. # 8], No. 3:04cr301 (MRK). Trial of the charges against Mr. Abu-jihaad is currently scheduled to begin on February 25, 2008.

On April 10, 2007, the Government filed a notice [doc. # 34] pursuant to 50 U.S.C. § 1806(c), informing Mr. Abu-jihaad of its intent to use or otherwise disclose evidence obtained or derived from electronic surveillance (collectively, "FISA-derived evidence") conducted under the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §§ 1801 et seq. ("FISA"). The Government later filed an amendment [doc. # 117] to its notice, in which the Government stated its intent to use FISA-derived evidence at pretrial hearings, trial, and other related proceedings.

Mr. Abu-jihaad has now filed a Motion to Suppress [doc. # 124] all FISA-derived evidence, and a Motion for Disclosure of FISA Applications and Orders and for Adversary Hearing on Motion to Suppress [doc. ## 142, 143]. In his suppression motion, Mr. Abu-jihaad argues that: (1) FISA is unconstitutional on its face because it violates the Fourth Amendment; (2) the FISA-derived evidence in this case was unlawfully acquired in violation of the Fourth Amendment; (3) the FISA-derived evidence in this case was acquired in violation of the statutory requirements of FISA; and (4) the Government may have made material misstatements in the FISA applications and affidavits, thereby entitling him to a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). See Memorandum in Support of Motion to Suppress FISA Derived Evidence [doc. # 133] ("Defendant's Mem."). In his disclosure and adversary hearing motion, Mr. Abu-jihaad asks to inspect the affidavits, applications, and orders of the Foreign Intelligence Surveillance Court ("FISC") approving the FISA surveillance and requests the Court to schedule an adversary hearing at which the parties may argue the issues raised by Mr. Abu-jihaad's suppression motion. Mr. Abu-jihaad also filed a Supplemental Memorandum in Support of Motion to Suppress FISA Derived Evidence [doc. # 181]. in which he provided further detail regarding his constitutional claims. Mr. Abu-jihaad has had access to certain of the, FISA-derived evidence that the Government has used in pretrial hearings or that the, Government has otherwise disclosed to Mr., Abu-jihaad, but neither he nor his counsel has had access to the FISA applications, supporting papers, or FISC orders.

The Government opposes Mr. Abu-jihaad's motions and pursuant to FISA, the Court: (1) to conduct an in camera and ex parte review of the FISA applications, affidavits, and materials as well as the FISC orders; (2) to find that FISA, as amended, is Constitutional; (3) to find that the FISA collection in this case was lawfully authorized and conducted; and (4) to order that none of the classified documents, nor any classified information be disclosed to the defense and that such materials remain under seal, In furtherance of the Government's requests, it has submitted both a classified and redacted, unclassified Memorandum in Opposition to the Defendant's. Motion for Suppression of FISA Evidence and Motion for Disclosure of FISA Applications, Orders and Related Materials and an Adversary Hearing [doc. ## 160, 161] ("Government's Mem."); an unclassified Declaration and Claim of Privilege of the Attorney General of the biked States [doc. # 158]; a classified Declaration of Joseph Billy, Jr., Assistant Director of the Counterterrorism Division of the Federal Bureau of Investigation; a classified declaration of the FBI regarding applicable minimization procedures; certified copies of the classified FISA applications, orders, and related materials ("FISA materials"); and an unclassified proposed order [doc. # 162]. The classified documents were' filed through the Court Security Officer, as part of a sealed exhibit for the Court's in camera and ex parte review under FISA. The unclassified supporting materials were filed on the public record.

The Court is once again grateful to counsel for their excellent submissions. Having carefully reviewed the FISA materials in camera and ex parte and considered the Fourth Amendment, relevant statutes, and case law, the Court DENIES the Motion to Suppress [doc. # 124], the Motion for Disclosure of FISA Applications and Orders [doc. # 142], and the Motion for an Adversary Hearing on Motion to Suppress [doc. # 143]. As set forth below, the Court concludes that: FISA does not on its face violate the Fourth Amendment; the collection of the FISA-derived evidence in this case did not violate the Fourth Amendment or FISA; Mr. Abu-jihaad is not entitled to review the FISA materials; and there were no misrepresentations or misstatements in the Government's applications or affidavits that would warrant the Court holding a Franks hearing.

I.

FISA sets forth a statutory procedure under which the Executive Branch may collect foreign intelligence information within the United States. Several courts, including the Second Circuit and the Foreign Intelligence Surveillance Court of Review (the "FISA Review Court"), have discussed in detail the history of FISA and its procedures. See, e.g., In re Sealed Case, 310 F.3d 717 (Foreign Int. Surv.Ct.Rev.2002); United States v. Duggan, 743 F.2d 59 (2d Cir.1984). The Court will not rehearse that history in this ruling. A relatively brief statutory overview will suffice for present purposes.

The term "foreign intelligence information" includes information that "relates to, and if concerning a United States person is necessary to, the ability of the United. States to protect against ... actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power [and/or] sabotage or international terrorism by a foreign power or agent of a foreign power." 50 U.S.C. § 1801(e)(1). The term also includes information with respect to a "foreign power or foreign territory that relates to, and if concerning a United States person is necessary to — (A) the national defense of the security of the United States; or (B) the conduct of the foreign affairs of the United States." Id. §§ 1801(e)(2), 1821(1).

The definition of "foreign power" is not limited to a foreign government, but also includes, among other things, a "group engaged in international terrorism or activities in preparation therefor." Id. §§ 1801(a), 1821(1). An "agent of a foreign power" includes any person who "knowingly engages in sabotage or inter national terrorism, or activities in preparation therefor, for or on behalf of a foreign power," and anyone who knowingly aids, abets, or conspires with any person to engage in the activities described in the Act, Id. §§ 1801(b)(2), 1821(1). "International terrorism" includes activities that "involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States," appear intended to intimidate or coerce a civilian population' or a government or affect a government by assassination or kidnaping, and occur totally outside the United States or transcend national boundaries. Id. §§ 1801(c), 1821(1).1

Except for emergency situations in which the Attorney General may authorize electronic surveillance or physical search for up to 72 hours without a court order, FISA requires the Government to obtain an order from the FISC (composed of U.S. District Judges appointed by the Chief Justice of the United States) before engaging in electronic surveillance or physical searches to collect foreign intelligence information. Id. §§ 1804(a), 1805(f), 1823(a), 1824(e).2 The statute also requires substantial review by, and certifications from, the Attorney General or another high-ranking Executive Branch official with national security or defense responsibilities. Id. §§ 1804(a)(7) (electronic surveillance), 1823(a)(7) (physical search).3

Before the FISC may approve requested electronic surveillance or physical. search, the judge must find, among other things, that: (1) the President has authorized the Attorney General to approve: the FISA application; (2) the application has been made by a "Federal officer" and his been approved by the Attorney General; (3) there is probable cause to believe that the target of the electronic surveillance or physical search is a foreign power or an agent of a foreign power, and that (a) the facilities or places at which the electronic surveillance are directed is being used, or are about to be used, by a foreign power or an agent of a foreign power, or (b) the premises or property to be searched is owned, used, possessed by, or in transit to or from an agent of a foreign power or a foreign power; (4) the proposed minimization procedures meet the statutory requirements set forth in 50 U.S.C. 1801(...

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