CA2: FISA violation or not? Case remanded for fact finding on whether def’s calls were reasonably collected

Defendant pled to attempting to provide support to a terrorist organization. After the plea, the government disclosed it’s prosecution derived from the warrantless obtaining of his phone calls under § 702 of the FISA Amendments Act of 2008. He successfully set aside his plea to litigate it and lost. He entered a conditional plea again. “He now appeals, arguing inter alia that the warrantless surveillance and the collection of his communications violated the Fourth Amendment. We conclude that the collection of the communications of United States persons incidental to the lawful surveillance of non-United States persons located abroad does not violate the Fourth Amendment and that, to the extent that the government’s inadvertent targeting of a United States person led to collection of Hasbajrami’s communications, he was not harmed by that collection. [TEXT REDACTED BY THE COURT] Because there is insufficient information in either the classified or the public record in this case to permit us to determine whether any such querying was reasonable, and therefore permissible under the Fourth Amendment, we REMAND the case to the district court for further proceedings consistent with this opinion.” United States v. Hasbajrami, 2019 U.S. App. LEXIS 37583 (2d Cir. Dec. 18, 2019).