E.D.Va.: Child sex offense revealed during FISA warrant doesn’t entitle defense to see the papers to attempt to suppress

Defendant is accused of a coercion of a minor for sex that was revealed during a FISA warrant. The AG having certified that revealing the source would harm national security, the defense doesn’t get to see the papers submitted in camera and ex parte. United States v. Kokayi, 2019 U.S. Dist. LEXIS 40783 (E.D. Va. Mar. 14, 2019):

As a threshold procedural matter, defense counsel contends that he needs access to the FISA material to develop suppression arguments. Def. Mem. 1. This argument is unpersuasive. FISA expressly states that a court “shall” review FISA materials ex parte and in camera “if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.” 50 U.S.C. §§ 1806(0, 1825(g). The Attorney General has submitted such an affidavit [Dkt. No. 66-1], and it is not for the Court to second-guess the determination of a top executive branch official with access to a broad range of intelligence that disclosure of the FISA materials would be harmful to national security. Cf. C.I.A. v. Sims, 471 U.S. 159, 180 (1985) (“[I]t is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency’s intelligence-gathering process.”). FISA’s ex parte and in camera review procedures are not, as defendant claims, “antithetical to the adversary system that is the hallmark of American criminal justice.” Def. Mem. 17. To the contrary, they are congressionally authorized, and their constitutionality has been affirmed by the Fourth Circuit, United States v. Pelton, 835 F.2d 1067, 1075-76 (4th Cir. 1987) (“We find the provisions of FISA to be ‘reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens,’ and therefore compatible with the Fourth Amendment.” (citing United States v. U.S. Dist. Court for E. Dist. of Mich.., 407 U.S. 297, 323 (1972))), as well as every federal court that has considered the matter, Gov. Opp’n 17-18 (collecting cases).

The exception to the requirement of ex parte, in camera review applies “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” 50 U.S.C. §§ 1806(f), 1825(g).

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