U.S. v. Warsame, Criminal No. 04-29 (JRT).

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Writing for the CourtJohn R. Tunheim
Citation547 F.Supp.2d 982
Docket NumberCriminal No. 04-29 (JRT).
Decision Date17 April 2008
PartiesUNITED STATES Of America, Plaintiff, v. Mohamed Abdullah WARSAME, Defendant.
547 F.Supp.2d 982
UNITED STATES Of America, Plaintiff,
v.
Mohamed Abdullah WARSAME, Defendant.
Criminal No. 04-29 (JRT).
United States District Court, D. Minnesota.
April 17, 2008.

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Thomas M. Hollenhorst, Assistant United States Attorney, Office of the United States Attorney, Minneapolis, MN; and Joseph N. Kaster, United States Department of Justice, Washington, DC, for plaintiff.

David C. Thomas, Law Offices of David C. Thomas, Chicago, IL; and Andrea K. George, Federal Public Defender, Minneapolis, MN, for defendant.

MEMORANDUM OPINION AND ODER DENYING DEFENDANT'S MOTION FOR DISCLOSURE AND MOTION TO SUPPRESS

JOHN R. TUNHEIM, District Judge.


Defendant Mohamed Abdullah Warsame ("Warsame") is charged with conspiracy to provide and providing material support and resources to a designated Foreign Terrorist Organization, in violation of 18 U.S.C. § 2339B, and with making false statements in violation of 18 U.S.C. § 1001(a)(2). Warsame has filed a motion for disclosure of applications for electronic surveillance under the Foreign Intelligence Surveillance Act of 1978 ("FISA"), and a motion to suppress evidence resulting from surveillance conducted pursuant to FISA. For the reasons discussed below, the Court denies these motions.

BACKGROUND

The Federal Bureau of Investigation ("FBI") began investigating Warsame in July 2003 in connection with an international terrorism investigation. As part of that investigation, the FBI obtained orders from the United States Foreign Intelligence Surveillance Court authorizing electronic surveillance and searches of Warsame, including a wiretap of Warsame's telephone and a physical search of his apartment. These orders were obtained pursuant to the certification procedures required under the Foreign Intelligence Surveillance Act, or FISA. 50 U.S.C. §§ 1801 et seq.

The FBI continued its surveillance activities until December 8, 2003, when agents approached Warsame for the first time at his home to discuss his background and travel experiences. Warsame agreed to accompany the agents to an undisclosed location, which turned out to be Camp Ripley, an Army National Guard military base in Little Falls, Minnesota. There, the questioning continued over the course of two days.1 During these interviews, Warsame described some of his overseas experiences, including attending terrorist training camps in Afghanistan, receiving military training in an al Qaeda camp, and meeting Osama Bin Laden. Following these interviews, the agents drove Wargence

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same bac to the FBI office in Minneapolis, where he was arrested.

Warsame was subsequently charged with two counts of providing or conspiring to provide material support or resources to a foreign terrorist organization, and three counts of making false statements. The prosecution has notified Warsame that it intends to offer at trial evidence obtained and derived from the surveillance authorized by the Foreign Intelligence Surveillance Court. In response, Warsame filed a motion for disclosure of the FISA applications and related materials, arguing that disclosure of the FISA applications and orders is necessary for him to fully support his motion to suppress the evidence obtained from the surveillance and searches. Warsame has also filed a motion to suppress the fruits of the FISA surveillance, arguing that the surveillance applications fail to meet FISA's statutory certification requirements, and that FISA as amended by the Patriot Act violates the Fourth Amendment.

ANALYSIS

I. FOREIGN INTELLIGENCE SUVEILLANCE ACT

In 1978, Congress enacted the Foreign Intelligence Surveillance Act ("FISA"), which established detailed procedures governing the Executive Branch's ability to collect foreign intelligence information. FISA was a congressional response to the Supreme Court's decision in United States v. United States District Court (Keith), 407 U.S. 297, 321-22, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), which expressly declined to decide whether the Fourth Amendment limits the President's power to conduct electronic surveillance to obtain foreign intelligence information for national security purposes. Through FISA, Congress sought to resolve "doubts about the constitutionality of warrantless, foreign security suiTeillance and yet protect the interests of the United States in obtaining vital intelligence about foreign powers." AC Li Found of S. Cal. v. Barr, 952 F.2d 457. 401 (D.C.Cir.1991).

FISA establishes a "secure framework" that seeks to balance the President's power to conduct suiTeillance for foreign intelligence purposes with the individual rights guaranteed by the United States Constitution. Id. To obtain an order authorizing electronic suiTeillance or physical searches of an agent of a foreign power, FISA requires the government to file under seal an ex parte application with the United States Foreign Intelligence SuiTeillance Court (the "FISC"). 50 U.S.C. §§ 1804, 1823. The application must be approved by the Attorney General and must include certain specified information. See 50 U.S.C. §§ 1804(a), 1823(a). After review of the application, a single judge of the FISC enters an parte order granting the government's application for electronic suneillance or a physical search of an agent of a foreign power, provided the judge makes certain specific findings.2 50 U.S.C. §§ 18)5(ai, 1824(a). 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. 50 U.S.C. §§ 1805(e)(2), 1824(rii(2).

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As originally enacted, FISA also required the applications to contain a certification by a high-ranking Executive Official that "the purpose" of the surveillance was to obtain foreign intelligence information. 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B) (2000). In 2001, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("Patriot Act"), which amended FISA to require only that "a significant purpose" of the surveillance or search is to obtain foreign intelligence information. 50 U.S.C. § 1804(a)(7)(B), 1823(a)(7)(B) (2006). By changing FISA's purpose requirement, "Congress was keenly aware that this amendment relaxed a requirement that the government show that its primary purpose was other than criminal prosecution." In re Sealed Case, 310 F.3d 717, 732 (Foreign Int.Surv.Ct.Rev.2002).

In addition to imposing specific requirements on the Executive Branch, FISA allows the use of evidence derived from FISA surveillance and searches in criminal prosecutions. 50 U.S.C. §§ 1806(a), 1825(a). In this case, the prosecution has indicated that it intends to offer against Warsame certain evidence obtained and derived from electronic surveillance and physical searches authorized by the FISC. As required by FISA, the Attorney General has authorized the use of this FISA information in all phases of the prosecution of Warsame. See 50 U.S.C. §§ 1806(b), 1825(c). The prosecution has also provided defendant with the required written notice of its intent to use the FISA information. See 50 U.S.C. §§ 1806(c), 1825(d).

FISA also authorizes "an aggrieved person"3 to seek to suppress any evidence derived from FISA surveillance or searches on 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. 50 U.S.C. §§ 1806(e), 1825(f). Upon receiving notice of the prosecution's intent to use FISA information in his case, Warsame filed a motion for disclosure of the FISA applications and related materials. Warsame has also filed a motion to suppress information obtained pursuant to the FISC-authorized surveillance, arguing in part that the Patriot Act amendment to FISA violates his rights under the Fourth Amendment. For the reasons discussed below, the Court denies these motions.

II. MOTION TO DISCLOSE FISA MTERIALS

Warsame moves for the disclosure of all FISA applications, orders, and related documents as an "aggrieved person" under the Act. See 50 U.S.C. §§ 1806(e), 1825(f). Warsame asserts that disclosure of the FISA applications and orders is necessary for him to fully support his motion to suppress the evidence obtained from the surveillance and searches. Warsame contends that meaningful review cannot be accomplished through an in camera, ex parte review of the documents. Warsame further asserts that denial of disclosure would violate his right to due process.

In response to Warsame's request for disclosure, former Attorney General Albersame

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to Gonzales filed an affidavit stating under oath that disclosure of such materials would harm national security. See 50 U.S.C. §§ 1806(f), 1825(g). In support of its claim of privilege, the United States submitted to the Court the sealed, classified declaration of John E. Lewis, Acting Assistant Director, Counterterrorism Division, Federal Bureau of Investigation. Under FISA, the filing of an Attorney General affidavit triggers an in camera, ex parte procedure to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. 50 U.S.C. §§ 1806(f), 1825(g). The Court's careful review of the sealed, classified materials fully supports the Attorney General's sworn assertion that the sealed materials filed with the Court contain

sensitive and classified information concerning United States intelligence sources and methods and other information relating to efforts of the United States to conduct counterintelligence investigations, including the manner and means by which those investigations are carried out; [and that] to reveal such information reasonably could be expected to cause serious and exceptionally grave damage to the national security of the United States.

(Declaration and Claim of Privilege of the Attorney...

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