National security blocks access to FISA application

Defendant accused of aiding terrorist organization fails to get access to FISA warrant materials on national security grounds. United States v. Warsame, 547 F. Supp. 2d 982 (D. Minn. 2008):

II. MOTION TO DISCLOSE FISA MATERIALS

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 Alberto 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 General of the United States, at 3.)

Once the in camera, ex parte procedure is triggered, the reviewing court may disclose such materials “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” 50 U.S.C. § 1806(f); see also 50 U.S.C. § 1825(g). The legislative history explains that such disclosure is “necessary” only where the court’s initial review indicates that the question of legality may be complicated by factors such as

indications of possible misrepresentation of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of nonforeign intelligence information, calling into question compliance with the minimization standards contained in the order.

United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982) (quoting S. Rep. No. 95-701, 95th Cong., 2d Sess. 64 (1978)).

No United States District Court or Court of Appeals has ever determined that disclosure to the defense of such materials was necessary to determine the lawfulness of surveillance or searches under FISA. See United States v. Rosen, 447 F. Supp. 2d 538, 546 (D. Va. 2006) (collecting cases). Warsame attempts to distinguish these cases by pointing to recent government admissions that numerous FISA applications have included misstatements and critical omissions. See In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 620-21 (Foreign Int. Surv. Ct. 2002) (discussing errors discovered in more than 75 FISA applications). Warsame further argues that the consistency of these case holdings demonstrates that the FISA process is a “sham,” and that adversarial proceedings are particularly important here because of the complexity of the issues presented to the Court.

The Court is receptive to Warsame’s concerns about the one-sided nature of the FISA process, and has engaged in a comprehensive and careful review of the FISA applications, orders, and other related materials. However, the Court has found that the issues presented by the FISA applications are straightforward and uncontroversial, and present none of the concerns that might warrant disclosure. The fact that the government has included misstatements and critical omissions in other FISA applications not at issue here cannot justify disclosure in this case. Without some indication that the congressionally mandated FISA procedures were not followed here, the government’s legitimate national security interest in maintaining the secrecy of the information contained in the FISA applications bars disclosure of the materials to Warsame.

The Court further concludes that the ex parte procedure complies with due process.

(And, this is the 2,000th post since this website converted to a blog format. That means reading over 10,000 cases.)