6. In conducting its review of the logs and reports relating to the electronic surveillances, the Government has found interceptions of conversations of defendants Bijedic, Spanjol and Mir which are minimally relevant to this case. Copies of materials relating to those interceptions have been submitted ex parte to this Court. The ex parte, in camera submission contained classified affidavits of the Government attorneys who conducted the review. describing the documents examined as well as their conclusion that the reviewed materials did not contain any exculpatory information.
7. The Court reviewed and examined ex parte the materials relating to the interceptions, including logs, reports and tapes, and finds that none of the material contains any exculpatory information, although some of the material is minimally relevant.
In reviewing the contents of these materials the Court finds that the documents contain sufficient information and detail to enable the Court to determine the subject matter of these interceptions. The Court also finds that the logs of the intercepted conversations listened to by the Court accurately reflect the subject matter of the conversations and that the intercepted conversations listened to by the Court do not contain any exculpatory information. Since the materials identify the targets of the electronic surveillances at issue, the Court finds that all such materials are covered by the Attorney General's assertion of privilege and need not be disclosed to the defendants or their counsel.
8. FISA requires this Court to review the Government's applications and the USFISC orders authorizing the surveillances to determine "whether the surveillance . . . was lawfully authorized and conducted. " 50 U.S.C. § 1806(f). Accordingly, the Court has reviewed the relevant materials in the sealed Exhibit and finds that the applications for electronic surveillances set forth all the information that the Act requires. See 50 U.S.C. § 1804. The Court also finds that the USFISC orders contained all the findings required by FISA. See 50 U.S.C. § 1805.
9. Specifically, the Court finds that the President has authorized the Attorney General to approve applications for electronic surveillance, 50 U.S.C. § 1805(a)(1); the instant applications were made by Federal officers and approved by the Attorney General, 50 U.S.C. § 1805(a)(2); there was probable cause to believe that the targets of the surveillances fell within the definitions of a" foreign power" or" agent of a foreign power as defined in 50 U.S.C. § 1801(a) and (b); and the facilities against which the electronic surveillances were directed were being used by a foreign power or agent of a foreign power, 50 U.S.C. § 1805(a)(3); the minimization procedures included with the Government's applications and ordered by the USFISC Judges meet the requirements of Section 101(h) of the Act, 50 U.S.C. § 1805(a)(4); and the certifications filed pursuant to Section 104(a)(7) of the Act were not clearly erroneous, 50 U.S.C. § 1805(a)(5). The Court also finds that the orders issued by the USFISC fully satisfied the requirements of Section 105(b) of the Act, 50 U.S.C. § 1805(b).
CONCLUSIONS OF LAW
1. FISA is constitutional both on its face and in its application to this case. FISA's procedure for judicial authorization of the Government's electronic surveillance for foreign intelligence purposes interposes a neutral and detached judicial officer between the Government and the target of the surveillance. As such, it satisfies the warrant requirements of the Fourth Amendment. See, United States v. Megahey, 553 F. Supp. 1180, 1190 (E.D.N.Y. 1982); United States v. Falvey, 540 F. Supp. 1306, 1312 (E.D.N.Y. 1982).
2. The Court's ex parte, In camera review of the sealed Exhibit submitted by the Attorney General is proper. It is well established that the legality of foreign intelligence surveillance should be determined on an in camera, ex parte basis. United States v. Butenko, 494 F.2d 593, 607 (3rd Cir.), cert. denied., 419 U.S. 881, 42 L. Ed. 2d 121, 95 S. Ct. 147 (1974). This principle has been uniformly followed by all Courts which have reviewed the legality of electronic surveillances authorized by the Foreign Intelligence Surveillance Court. United States v. Ott, 827 F.2d 473, 476 (9th Cir. 1987); United States v. Belfield, 223 U.S. App. D.C. 417, 692 F.2d 141, 147 (D.C. Cir. 1982); United States v. Falvey, 540 F. Supp. at 1315; and United States v. Megahey, 553 F. Supp. at 1193.
3. In Taglianetti v. United States, 394 U.S. 316, 317, 22 L. Ed. 2d 302, 89 S. Ct. 1099 (1969), the Supreme Court held that adversary proceedings and full disclosure were not necessarily required "for resolution of every issue raised by an electronic surveillance." See Alderman v. United States, 394 U.S. 165, 184 n.15, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969). FISA explicitly mandates in camera, ex parte review when the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security. 50 U.S.C. § 1806(f). The Attorney General has filed such an affidavit in this case. FISA permits disclosure in these circumstances "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance." Id. The Court finds that such circumstances do not exist in this case.
4. The Court has reviewed the documents submitted by the Government, including the sealed Exhibit and certain tapes requested by the Court, and concludes that the surveillance conducted by the Government is wholly consistent with the orders issued by the USFISC Judges. The Court also finds that the Government was seeking foreign intelligence information and instituted its electronic surveillance as part of its efforts to collect foreign intelligence information.
5. The Court also concludes that the defendants are not entitled to discovery of their conversations intercepted on these FISA surveillances, some of which are minimally relevant to this case. In enacting FISA Congress intended to restrict, discovery of FISA materials as much as constitutionally possible. H.R. Rep. No. 95-1283, 95th Cong., 2d Sess., Pt. 1, at 94 n. 50. To achieve this end, Congress enacted Section 106(g) of FISA, 50 U.S.C. § 1806(g), which mandates denial of discovery of material relating to lawfully authorized foreign surveillances "except to the extent that due process requires." Thus, to the extent that Fed. R. Crim. P. 16 allows discovery of the prior relevant statements of the defendants beyond exculpatory information constitutionally mandated by Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) and its progeny, it is inapplicable to discovery of intelligence information collected under the Act.
6. This Court's authority under Section 106(g) of FISA to restrict discovery is buttressed by Fed. R. Crim P. 16(d), which provides for discovery being denied, restricted or deferred upon "a sufficient showing" being made by a party. Listed among the considerations to be taken into account by the Court is "the protection of information vital to the national security." Fed. R. Evid. 16(d) Advisory Committee's Note (1966).
7. Having examined the materials at issue, the Court finds that the materials do not contain any exculpatory information and their discovery would reveal the targets of electronic surveillance, thereby compromising intelligence sources and methods. Accordingly, the Court holds that it has authority to restrict discovery of these intercepted conversations under Rule 16(d).
8. Defendants argue that they should have access to their prior recorded statements because such discovery has been provided in previous cases involving FISA, citing Ott, Duggan, Megahey and Falvey, supra. The Court finds the discovery afforded defendants in Ott, Duggan, Megahey and Falvey, inapplicable to this case. In those cases, unlike this case, the Government was actually using the FISA surveillance as evidence in the case. In the instant case, no such use is being made, since to do so would reveal the targets of the electronic surveillance.
9. The Government's sealed Exhibit is very detailed and all parts are fully consistent with the requirements of FISA. The orders authorizing electronic surveillance were based on applications by the Government that stated ample facts to support a finding of probable cause.
10. Based on the Court's review and examination of the sealed Exhibit, including logs and reports, and the tapes requested by the Court, the Court finds no basis exists for disclosure of the materials to defendants or their counsel.
An appropriate Order to follow.
AND NOW, to wit, this 22nd day of August, 1989, upon consideration of the Motions of defendants, Bahrudin Bijedic, LBS Bank of New York, Inc., and Vinko Mir, joined in by defendant, Vjekoslav Spanjol, for Discovery of Electronic Surveillance Material, denied in open Court prior to the commencement of the trial of this case on June 19, 1989, and renewed on August 17, 1989, and the Response of the United States of America, and after oral argument, IT IS ORDERED that the Motions of defendants, Bahrudin Bijedic, LBS Bank of New York, Inc., and Vinko Mir, joined in by defendant, Vjekoslav Spanjol, for Discovery of Electronic Surveillance Material conducted pursuant to the Foreign Intelligence Surveillance Act is denied.