United States v. Al-Safoo
| Decision Date | 04 May 2021 |
| Docket Number | Case No. 18-CR-696 |
| Parties | UNITED STATES OF AMERICA v. ASHRAF AL-SAFOO |
| Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
MEMORANDUM OPINION AND ORDER
On October 17, 2018, the Federal Bureau of Investigation arrested Defendant Al-Safoo pursuant to a criminal complaint charging him with conspiracy to provide material support to a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B. [1].
On October 23, 2018, pursuant to 50 U.S.C. §§ 1806(c) and 1825(d), the Government provided notice to Defendant and this Court that it "intends to offer into evidence, or otherwise use or disclose in any proceedings in this matter, information obtained and derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act." [10].
On March 12, 2020, a grand jury in the Northern District of Illinois returned a second superseding indictment charging the defendant with five counts of providing material support to the Islamic State of Iraq and ash-Sham ("ISIS"), in violation of 18 U.S.C. § 2339B(a)(1); one count of conspiracy to provide material support to ISIS, in violation of 18 U.S.C. § 2339B(a)(1); four counts of intentionally accessing a computer without authorization, in violation of 18 U.S.C. §§ 1030(a)(2)(C) and 1030(c)(2)(B)(ii); one count of conspiracy to intentionally access a computer without authorization, in violation of 18 U.S.C. §§ 371, 1030(a)(2), and 1030(c)(2)(B)(iii); and one count of conspiracy to transmit threats in interstate commerce, in violation of 18 U.S.C. §§ 371 and 875(c). [162].
On December 11, 2020, Defendant moved for disclosure of FISA-related materials, production of discovery relating to FISA-surveillance, and for suppression of evidence obtained or derived from FISA-authorized surveillance [222] and [223].
On April 2, 2021, the government filed a response in opposition to Defendant's Motions. [274].
On March 23, 2021, Defendant filed his consolidated reply. [282].
Under the Foreign Intelligence Surveillance Act (FISA), the law contains specific and detailed procedures required for obtaining orders to authorize electronic surveillance and physical search of a foreign power or an agent of a foreign power. To begin the FISA process, an application approved by the Attorney General that contains specific information is filed ex parte and under seal with the Foreign Intelligence Surveillance Court (FISC). 50 U.S.C. §§ 1804(a), 1823(a). The FISC must make necessary, specific findings after reviewing an application before entering an ex parte order, 50 U.S.C. §§ 1805(a), 1823(a), which specifically identifies the targeted facilities and directs how the electronic surveillance and physical search are to be conducted. 50 U.S.C. §§ 1805(c)(1)-(2), 1824(c)(1)-(2).
The Court has reviewed Defendant's Motions and the government's response and the Sealed Appendix thereto, including the FISA materials, and Defendant's reply in camera and ex parte, and based upon its analysis of all the materials submitted to the Court, finds that:
(1) The President has authorized the United States Attorney General to approve applications to the FISC for electronic surveillance and for physical search for foreign intelligence information and purposes;
(2) Each application was made by a federal officer and approved by the Attorney General (50 U.S.C. §§ 1805(a)(1), 1824(a)(1));
(3) Each application contained facts establishing probable cause to believe that the target of the electronic surveillance, physical search, or both, was at the time an agent of a foreign power (50 U.S.C. §§ 1801(b)(2), 1805(a)(2)(A), 1824(a)(2)(A));
(4) No United States person was determined to be an agent of a foreign power solely upon the basis of activities protected by the First Amendment to the United States Constitution (50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A));
(5) Each application made pursuant to 50 U.S.C. § 1804 contained facts establishing probable cause to believe that each of the facilities or places at which the electronic surveillance was directed was being used, or was about to be used, by a foreign power or an agent of a foreign power (50 U.S.C. § 1805(a)(2)(B));
(6) Each application made pursuant to 50 U.S.C. § 1823 contained facts establishing probable cause to believe that the premises or property to be searched was or was about to be owned, used, possessed by, or was in transit to or from, an agent of a foreign power or a foreign power (50 U.S.C. § 1824(a)(2)(B));
(7) Each application made pursuant to 50 U.S.C. § 1823 contained facts establishing probable cause to believe that the premises or property to be searched contained foreign intelligence information (50 U.S.C. §§ 1823(a)(3)(B), 1824(a)(4)); (8) The minimization procedures incorporated into the application(s) and order(s) met the requirements of 50 U.S.C. §§ 1801(h) or 1821(4) (50 U.S.C. §§ 1805(a)(3), 1824(a)(3)), and the government implemented such minimization procedures in conformity with an order of authorization or approval;
(9) Each application contained all of the statements and certifications required by 50 U.S.C. §§ 1804 or 1823 (50 U.S.C. §§ 1805(a)(4), 1824(a)(4));
(10) No certification in an application for a target who was at the time a United States person was clearly erroneous on the basis of the statement made pursuant to 50 U.S.C. §§ 1804(a)(6)(E) or 1823(a)(6)(E) or any other information furnished under 50 U.S.C. §§ 1804(c) or 1823(c) (50 U.S.C. §§ 1805(a)(4), 1824(a)(4));
(11) A "significant purpose" of the government's collection pursuant to FISA was to collect foreign intelligence information (50 U.S.C. §§ 1804(a)(6)(B), 1823(a)(6)(B));
(12) Each order issued by the FISC satisfied the requirements of 50 U.S.C. §§ 1805(c) or 1824(c);
(13) Each order issued by the FISC satisfied the requirements of 50 U.S.C. §§ 1805(d) or 1824(d);
(14) The defendant made no preliminary or substantial showing of a false statement, nor of a false statement that was material, nor a statement that was made knowing or intending it was false or with reckless disregard for its truth, in the FISA application(s) that would entitle him to a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). As there is no indication of any such false statements in the FISA application(s), a Franks hearing is not warranted in this matter; (15) Disclosure to the defense of the FISA materials is not required because the Court was able to make an accurate determination of the legality of the electronic surveillance and physical search without disclosing the FISA materials or any portions thereof;
(16) Due process does not otherwise require disclosure of the FISA materials; and
(17) The government complied with its notice obligations under FISA, and any additional notice regarding any surveillance techniques used, the legal authorities relied upon, or any underlying warrants, orders, or applications used in connection with such surveillance is not merited.
The defendant seeks materials that were presented to the FISC, including the resulting FISC order(s), that provided the legal basis for the electronic surveillance and physical search from which some of the evidence that will be used against him was obtained or derived. By requesting the disclosure of the FISA materials, the defendant is seeking discovery of material that FISA specifically protects from such disclosure, except as provided in 50 U.S.C. §§ 1806(f), (g) and 1825(g), (h) ().1
In this case, the Attorney General has filed a sworn declaration stating that disclosure of the FISA materials or an adversary hearing would harm the national security of the United States. Therefore, as mandated by FISA, this Court conducted an in camera, ex parte review of the FISA materials to determine whether the information was lawfully acquired and whether the electronic surveillance and physical search were made in conformity with an order of authorization or approval (i.e., were lawfully conducted). This in camera, ex parte review process under FISA satisfies due process under the United States Constitution. See, e.g., United States v. Daoud, 755 F.3d 479, 482-83 (7th Cir. 2014); United States v. El-Mezain, 664 F.3d 467, 567 (5th Cir. 2011); United States v. Abu-Jihaad, 630 F.3d 102, 117 (2d Cir. 2010); United States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005); United States v. Ott, 827 F.2d 473, 476-77 (9th Cir. 1987) (); United States v. Butenko, 494 F.2d 593, 607 (3d Cir. 1974); United States v. Warsame, 547 F. Supp. 2d 982, 988-89 (D. Minn. 2008); United States v. Spanjol, 720 F. Supp. 55, 58-59 (E.D. Pa. 1989). In conducting that review, the Court may disclose the FISA materials "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance [or search]." 50 U.S.C. §§ 1806(f), 1825(g).
After conducting its own review of the FISA materials, the Court finds that it does not require the assistance of the defense to make an accurate determination of the legality of the electronic surveillance and physical search. Thus, there is no valid, legal reason for disclosure of any of the FISA materials to the defendant. See Daoud, 755 F.3d at 485 (); United States v. Duggan, 743 F.2d 59, 78 (2d Cir. 1984) ().
As a result of the Court's thorough in camera, ex parte...
To continue reading
Request your trial