Defendant was indicted for attempting to provide material support to a terrorist organization, and the government notified the defense that it also had FISA-gathered information. The court concludes that there was probable cause and the defense doesn’t get t see it. The court noted it viewed the materials in camera as a “skeptical” defense lawyer would and concludes there was a factual basis for the warrant and that a Franks hearing isn’t permitted. United States v. Shafi, 2017 U.S. Dist. LEXIS 201894 (N.D. Cal. Dec. 7, 2017):
As part of its FISA application materials in this case, the government submitted a certification in the form of a Declaration and Claim of Privilege from the Attorney General that “the unauthorized disclosure of the FISA Materials could be expected to cause exceptionally grave damage to the national security of the United States.” Dkt. No. 171-1. This declaration is sufficient to justify an ex parte, in camera review of the FISA application and materials. See 50 U.S.C. § 1806(f). That said, such a review puts a judge in an unusual position. Courts are a place of public record, where parties are ordinarily free to discover what the other side knows and argue from the same base of information. Our democratic principles and system of justice depend on the American people being informed about the activities of our government. But throughout our history, as a 2009 Executive Order points out, our national defense has required that certain information be kept in confidence in order to protect our citizens, democratic institutions, homeland security, and interactions with foreign nations. Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009). With this tension of principles in mind, when I conducted the ex parte, in camera review I tried to consider how a skeptical defense counsel might view the evidence.
Based on that review, I find that the government presented sufficient evidence in its FISA applications to establish probable cause for the surveillance and search. While it may be true that a unilateral desire to conspire with someone to engage in activities in preparation for international terrorism or a violation of criminal statutes of the United States is not enough to show probable cause, as Shafi argues, that is not the case the government is bringing. The government’s evidence identified a web of activities conducted by Shafi that goes beyond merely traveling to Turkey. The FISA application established the requisite probable cause and met the requirements of the FISA. See id. § 1804(a). The certifications were not deficient. Foreign intelligence was the “significant purpose” of the FISA surveillance. The government also used sufficient minimization procedures and did not exceed any time limits imposed for the surveillance and searches.
Shafi also expressed concern that the government relied on false or misleading information in its FISA application. In my review, I paid close attention to the facts as asserted by Shafi. Nothing in the applications suggests that the government relied on any material falsehood or omission in its FISA application. The evidence gathered from the FISA surveillance and searches is not subject to suppression. See U.S. v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).