U.S. v. Rosen

• Decision Date: 14 August 2006
• Docket Number: No. 1:05CR225.,1:05CR225.
• Citation: 447 F.Supp.2d 538
• Parties: UNITED STATES of America, v. Steven J. ROSEN Keith Weissman
• Court: U.S. District Court — Eastern District of Virginia

447 F.Supp.2d 538

UNITED STATES of America, v. Steven J. ROSEN Keith Weissman

No. 1:05CR225.

United States District Court, E.D. Virginia, Alexandria Division.

August 14, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kevin Digregory, William N. Hammerstrom, Jr., United States Attorney's Office, Alexandria, VA, for United States of America.

John N. Nassikas, III, Arent Fox PLLC, Washington, DC, for Keith Weissman.

MEMORANDUM OPINION

ELLIS, District Judge.

Defendants, Steven J. Rosen and Keith Weissman, are charged in a superseding indictment with one count of conspiring to communicate national defense information to persons not entitled to receive it, in violation of 18 U.S.C. § 793(d), (e) and (g). More specifically, Count One of the superseding indictment, which spans twelve pages and includes fifty-seven overt acts, alleges that between April 1999 and continuing until August 2004, Rosen and Weissman along with alleged co-conspirator Lawrence Franklin, then an employee of the Department of Defense ("DOD"), were engaged in a conspiracy to communicate information relating to the national defense to those not entitled to receive it. According to the superseding indictment, Franklin and certain other unnamed government officials with authorized possession of classified national defense information communicated that information to Rosen and Weissman, who were employed at the time as lobbyists for the American-Israel Public Affairs Committee (AIPAC). It is further alleged that Rosen and Weissman then communicated the information received from their government sources to members of the media, other foreign policy analysts, and certain foreign officials, none of whom were authorized to receive this information.

In addition, the superseding indictment also charges defendant Rosen with one count of aiding and abetting the communication of national defense information to persons not entitled to receive it, in violation of 18 U.S.C. §§ 793(d) and 2. This count alleges that Rosen aided and abetted Franklin's violation of 18 U.S.C. § 793(d) by providing a fax number to Franklin so that Franklin could fax to Rosen a document Franklin had prepared containing national defense information derived from a classified document.

In the course of its investigation of the alleged conspiracy, the government sought and obtained orders issued by the Foreign Intelligence Surveillance Court ("FISC") pursuant to the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et seq., authorizing certain physical searches and electronic surveillance. As the investigation pertained to national security, these applications and orders were classified. Because the government intends to offer evidence obtained or derived from physical searches and electronic surveillance authorized by these orders, defendants seek by motion (1) to obtain disclosure of the classified applications submitted to the FISC, the FISC's orders, and related materials, and/or (2) to suppress the evidence obtained or derived from any searches or surveillance conducted pursuant to the issued FISA orders. In response to defendants' motion the government filed: (1) a classified, ex parte brief in opposition to the defendants' motion; (2) an unclassified, redacted brief in opposition to the defendants' motion; (3) a declaration and claim of privilege of the Attorney General of the United States; (4) a classified Declaration of an Assistant Director of the Federal Bureau of Investigation ("FBI") concerning the classified minimization procedures; and (6) certified copies of the FISA applications, orders and related materials at issue in this case.

Defendants' motion and the government's opposition raise a number of questions concerning the proper scope of, and procedure for, district court review of challenges to FISA orders, as well as specific questions concerning whether the FISA orders in issue in this case issued in conformity with that statute's requirements. This memorandum opinion addresses these questions, beginning with an overview of the FISA procedure.

I.

FISA, enacted in 1978, was Congress's response to three related concerns: (1) the judicial confusion over the existence, nature and scope of a foreign intelligence exception to the Fourth Amendment's warrant requirement that arose in the wake of the Supreme Court's 1972 decision in United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972);¹ (2) the Congressional concern over perceived Executive Branch abuses of such an exception;² and (3) the felt need to provide the Executive Branch with an appropriate means to investigate and counter foreign intelligence threats.³ FISA accommodates these concerns by establishing a detailed process the Executive Branch must follow to obtain orders allowing it to collect foreign intelligence information "without violating the rights of citizens of the United States." United States v. Hammond, 381 F.3d 316, 332 (4th Cir.2004)(en banc), vacated on other grounds, 543 U.S. 1097, 125 S.Ct. 1051, 160 L.Ed.2d 997 (2005), reinstated in pertinent part, 405 F.3d 1034 (2005). Although originally limited to electronic surveillance, FISA's coverage has now been expanded to include physical searches, as well. Thus, the detailed FISA process applicable to electronic surveillance relating to foreign intelligence also applies now to physical searches.⁴

FISA's detailed procedure for obtaining orders authorizing electronic surveillance or physical searches of a foreign power or an agent of a foreign power begins with the government's filing of an ex parte, under seal application with the FISC.⁵ Such an application must be approved by the Attorney General and must include certain specified information. See 50 U.S.C. §§ 1804(a) and 1823(a). A FISC judge considering the application may also require the submission of additional information necessary to make the requisite findings under §§ 1805(a) and 1824(a).

After review of the application, a single judge of the FISC must enter an ex parte Order granting the government's application for electronic surveillance or a physical search of a foreign power or an agent of a foreign power provided the judge makes certain specific findings, including most importantly, that on the basis of the facts submitted by the applicant there is probable cause to believe that—

(1) the target of the electronic surveillance or physical search is a foreign power or an agent of a foreign power, except 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

(2) for electronic surveillance, 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; or

(3) for physical searches, the premises or property to be searched is owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power.

See 50 U.S.C. §§ 1805(a) and 1823(a).⁶ If the FISC judge's findings reflect that the government has satisfied the statute's requirements, the judge must issue an order approving the surveillance or search. Such an order must describe the target, the information sought, and the means of acquiring such information. See 50 U.S.C. §§ 1805(c)(1) and 1824(c)(1). The order must also set forth the period of time during which the electronic surveillance or physical searches are approved, which is generally ninety days or until the objective of the electronic surveillance or physical search has been achieved. See 50 U.S.C. §§ 1805(e)(1) and 1824(d)(1). Applications for a renewal of the order must generally be made upon the same basis as the original application and require the same findings by the FISC. See 50 U.S.C. §§ 1805(e)(2) and 1824(d)(2).

Although FISA is chiefly directed to obtaining "foreign intelligence information,⁷ the Act specifically contemplates cooperation between federal authorities conducting electronic surveillance and physical searches pursuant to FISA and federal law enforcement officers investigating clandestine intelligence activities. In this respect, FISA explicitly allows the use of evidence derived from FISA surveillance and searches in criminal prosecutions. See 50 U.S.C. §§ 1806(k) and 1825(k).

If the Attorney General approves the use of evidence collected pursuant to FISA in a criminal prosecution, and the government intends to use or disclose FISA evidence at the trial of an "aggrieved person,"⁸ the government must first notify the aggrieved person and the district court that the government intends to disclose or use the FISA evidence. See 50 U.S.C. §§ 1806(c) and 1825(d). On receiving such notification, an aggrieved person may seek to suppress any evidence derived from FISA surveillance or searches on the grounds that: (1) the evidence was unlawfully acquired; or (2) the electronic surveillance or physical search was not conducted in conformity with the Order of authorization or approval. See 50 U.S.C. §§ 1806(e) and 1825(f). And, if an aggrieved person moves to suppress FISA evidence or to obtain FISA material, then upon the filing of an affidavit by the Attorney General stating under oath that disclosure of such material would harm national security, the district court must review the FISA warrant applications and related materials in camera and ex parte to determine whether the surveillance or search "of the aggrieved person was lawfully authorized and conducted." 50 U.S.C. §§ 1806(f) and 1825(g).

This review is properly de novo, especially given that the review is ex parte and thus unaided by the adversarial process. See United States v. Hammoud, 381 F.3d 316, 332 (4th Cir.2004) (en banc) (conducting de novo review of FISA materials); United States v. Squillacote, 221 F.3d 542, 554 (4th Cir.2000)...