United States v. Aziz

• Decision Date: 12 January 2017
• Docket Number: CRIMINAL NO. 1:15–CR–309
• Citation: 228 F.Supp.3d 363
• Parties: UNITED STATES of America v. Jalil Ibn Ameer AZIZ, Defendant
• Court: U.S. District Court — Middle District of Pennsylvania

228 F.Supp.3d 363

UNITED STATES of America

v.Jalil Ibn Ameer AZIZ, Defendant

CRIMINAL NO. 1:15–CR–309

United States District Court, M.D. Pennsylvania.

Signed January 12, 2017

Daryl Ford Bloom, U.S. Attorney's Office, Harrisburg, PA, for United States of America.

Heidi R. Freese, Lori J. Ulrich, Federal Public Defender's Office, Harrisburg, PA, for Defendant.

MEMORANDUM

Christopher C. Conner, Chief Judge

Defendant Jalil Ibn Ameer Aziz ("Aziz") moves the court for notice and disclosure of surveillance under the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et seq. , and to suppress the fruits of such surveillance or any other collection conducted pursuant to FISA, or other "confidential" foreign intelligence gathering, or any parallel construction or "scrubbing" activities. (Doc. 62). For the reasons articulated herein, the court will deny Aziz's motion.

I. Factual Background and Procedural History

The United States commenced prosecution of Aziz on December 17, 2015, with the filing of a criminal complaint. (Doc. 3). On December 22, 2015, a federal grand jury sitting in Harrisburg, Pennsylvania, returned a two-count indictment charging Aziz with conspiracy (Count I) and attempt (Count II) to provide material support and resources to a designated foreign terrorist organization, to wit: the Islamic State of Iraq and the Levant ("ISIL"), in violation of 18 U.S.C. § 2339B(a)(1). (Doc. 13). The government thereafter filed its first notice (Doc. 21) pursuant to 50 U.S.C. § 1825(d) of intent to use FISA information obtained or derived from physical searches.

On April 13, 2016, the court scheduled a pretrial conference pursuant to Section 2 of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III § 2. (Doc. 32). The court agreed with the parties that the complexity of these proceedings, in particular the anticipated CIPA and FISA motion practice, warranted a continuance of the trial date to February 6, 2017. (Doc. 38). The court also reviewed and approved the parties' proposed schedule for pretrial motion practice. (Doc. 39). In pertinent part, the court set September 6, 2016, as Aziz's deadline to submit any FISA suppression motion. (Id. )

On May 18, 2016, the grand jury returned a superseding indictment reiterating Counts I and II and further charging Aziz with solicitation to commit a crime of violence in violation of 18 U.S.C. §§ 2 and 373 (Count III) and transmitting a communication containing a threat to injure in violation of 18 U.S.C. §§ 2 and 875(c) (Count IV).¹ (Doc. 42). The superseding indictment specifically avers in support of Count IV that Aziz, via Twitter, transmitted a communication providing "names, addresses, photographs, and branches of the military of approximately one hundred United States servicemen" which communication urged: "[K]ill them in their own lands, behead them in their own homes, stab them to death as they walk their streets thinking that they are safe." (Doc. 42 at 3–4). On August 4, 2016, the government filed a second notice (Doc. 56) of intent to use FISA information, this time identifying an intent to use evidence obtained or derived from both physical searches and electronic surveillance. Aziz's instant motion followed.

II. The Foreign Intelligence Surveillance Act

Congress enacted FISA in response to perceived abuses of intelligence-gathering and surveillance procedures by federal intelligence agencies in the early 1970s. See Am. Civil Liberties Union v. Clapper , 785 F.3d 787, 792–93 (2d Cir. 2015). The act establishes a statutory framework under which executive branch agencies may conduct surveillance and searches in foreign intelligence investigations. See 50 U.S.C. § 1801 et seq. FISA authorizes the Chief Justice of the United States to designate eleven district court judges to sit as judges on the Foreign Intelligence Surveillance Court ("FISC"). Id. § 1803(a)(1). FISC judges review and resolve the government's ex parte applications for orders permitting surveillance or searches. See id.

FISA also establishes the Foreign Intelligence Court of Review ("FICR"), comprised of three district court or circuit court judges, to review decisions of the FISC. Id. § 1803(b).

The statute as originally enacted required a high-ranking member of the executive branch "to certify that ‘the purpose’ of the surveillance is to obtain foreign intelligence information." United States v. Duka , 671 F.3d 329, 338 (3d Cir. 2011) (emphasis added) (quoting In re Sealed Case , 310 F.3d 717, 723 (FISA Ct. Rev. 2002) ). In 2001, Congress enacted the Patriot Act.² Among other things, the Patriot Act amended FISA to require certification that foreign intelligence gathering is "a significant purpose" rather than "the purpose" of the surveillance or search intended. Duka , 671 F.3d at 336–37 (3d Cir. 2011). Prior to passage of the Patriot Act, courts construed "the purpose" to mean "the primary purpose" of the proposed surveillance or search. Id. (citing United States v. Duggan , 743 F.2d 59, 77 (2d Cir. 1984) ); In re Sealed Case , 310 F.3d at 725–26 (collecting cases). Courts have held that the 2001 Patriot Act amendments evinced Congress's intent to relax the juridical "primary purpose" standard. In re Sealed Case , 310 F.3d at 733 ; United States v. Hasbajrami , No. 11-CR-623, 2016 WL 1029500, at *4 (E.D.N.Y. Feb. 18, 2016) (citing United States v. Abu–Jihaad , 630 F.3d 102, 119 (2d Cir. 2010) ); United States v. Kashmiri , No. 09-CR-830, 2010 WL 4705159, at *4 (N.D. Ill. Nov. 10, 2010).

FISA's application requirements are rigorous by design. The statute obliges the government to make detailed factual showings about the target of the proposed surveillance or search, the information sought, and the facilities at which the surveillance or search are directed. See 50 U.S.C. §§ 1804(a), 1823(a). The application must be personally reviewed and approved by the Attorney General of the United States before submission to the FISC. Id. §§ 1804(d), 1823(d).

FISA authorizes the government to use information obtained or derived from FISC–authorized electronic surveillance or physical searches in federal, state, or local criminal prosecutions. Id. §§ 1806(a), 1825(a). The government must provide notice to the court and to each "aggrieved person" of its intent to disclose or to use such information. Id. §§ 1806(c), 1825(d). The "aggrieved person" may then move to suppress FISA–acquired evidence on grounds that "the information was unlawfully acquired" or the surveillance or search "was not made in conformity with an order of authorization or approval." Id. §§ 1806(e), 1825(f).

III. Discussion

Aziz filed the instant motion to suppress and for disclosure of FISA–related information pursuant to 50 U.S.C. §§ 1806(e) and 1825(f). (Doc. 62). Aziz moors his requests in a combination of procedural, statutory, and constitutional challenges to FISA generally and as applied in this case. (See Doc. 63). Aziz asserts: (1) that he is entitled to discovery of the government's FISA applications and any supporting materials, and that failure to disclose this material violates his rights under the United States Constitution; (2) that the underlying FISA applications may contain intentional or reckless material falsehoods or omissions in violation of Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ; and (3) that the government may not have fully complied with the statute in its application for or implementation of the FISA orders. (See Doc. 63 at 10–12).³ The court will address these issues seriatim.

A. Notice and Disclosure

FISA's statutory language is unequivocal that disclosure of warrant applications and supporting materials is the exception, not the rule. See 50 U.S.C. §§ 1806(f), 1825(g). When, in answer to a suppression motion, the Attorney General files an affidavit stating "under oath that disclosure or an adversary hearing would harm the national security," the district court "shall ... review in camera and ex parte the application, order, and such other materials relating to" the surveillance or search to determine whether intelligence-gathering was "lawfully authorized and conducted." Id. The court may disclose "portions of" the underlying applications and supporting materials to the aggrieved person "only where such disclosure is necessary to make an accurate determination of the legality" of the surveillance or search. Id. Courts interpreting this language have uniformly held that in camera and ex parte hearings are the "rule" and that disclosure is the "exception, occurring only when necessary." Duggan , 743 F.2d at 78 ; United States v. Belfield , 692 F.2d 141, 147 (D.C. Cir. 1982).

The government correctly observes that every court but one to have addressed a similar motion has found disclosure to be unnecessary. (Doc. 71 at 23–25 (collecting cases)). The only district court to order disclosure was overturned swiftly on appeal. See United States v. Daoud , No. 12-CR-723, 2014 WL 321384, at *3 (N.D. Ill.), rev'd , 755 F.3d 479, 481–85 (7th Cir.), reh'g en banc denied , 761 F.3d 678 (7th Cir. 2014), cert. denied , ––– U.S. ––––, 135 S.Ct. 1456, 191 L.Ed.2d 369 (2015). But to the extent the government intimates that disclosure is inappropriate merely because it is unprecedented, we reject the suggestion. That disclosure has not previously been ordered does not foreclose the possibility.

Moreover, the court questions whether this consensus accurately reflects Congressional intent. The statute is explicit in acknowledging that there may arise circumstances when "disclosure is necessary to make an accurate determination of the legality of the surveillance." 50 U.S.C. §§ 1806(f), 1825(g). The legislative history reveals that Congress may not have intended to place the disclosure option so far out of reach:

Thus, in some cases, the Court will likely be able to determine the legality of the surveillance without any disclosure to the defendant. In other cases, however, the question may be

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