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United States v. Aziz

United States District Court, M.D. Pennsylvania

January 12, 2017



          Christopher C Conner Chief Judge

         Defendant Jalil Ibn Ameer Aziz (“Aziz”) moves the court for notice and disclosure of surveillance under the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., and to suppress the fruits of such surveillance or any other collection conducted pursuant to FISA, or other “confidential” foreign intelligence gathering, or any parallel construction or “scrubbing” activities. (Doc. 62). For the reasons articulated herein, the court will deny Aziz's motion.

         I. Factual Background and Procedural History

         The United States commenced prosecution of Aziz on December 17, 2015, with the filing of a criminal complaint. (Doc. 3). On December 22, 2015, a federal grand jury sitting in Harrisburg, Pennsylvania, returned a two-count indictment charging Aziz with conspiracy (Count I) and attempt (Count II) to provide material support and resources to a designated foreign terrorist organization, to wit: the Islamic State of Iraq and the Levant (“ISIL”), in violation of 18 U.S.C. § 2339B(a)(1). (Doc. 13). The government thereafter filed its first notice (Doc. 21) pursuant to 50 U.S.C. § 1825(d) of intent to use FISA information obtained or derived from physical searches.

         On April 13 2016 the court scheduled a pretrial conference pursuant to Section 2 of the Classified Information Procedures Act (“CIPA”) 18 USC App III § 2 (Doc 32) The court agreed with the parties that the complexity of these proceedings in particular the anticipated CIPA and FISA motion practice warranted a continuance of the trial date to February 6 2017 (Doc 38) The court also reviewed and approved the parties' proposed schedule for pretrial motion practice (Doc 39) In pertinent part the court set September 6 2016 as Aziz's deadline to submit any FISA suppression motion (Id.)

         On May 18 2016 the grand jury returned a superseding indictment reiterating Counts I and II and further charging Aziz with solicitation to commit a crime of violence in violation of 18 USC §§ 2 and 373 (Count III) and transmitting a communication containing a threat to injure in violation of 18 USC §§ 2 and 875(c) (Count IV)[1] (Doc 42) The superseding indictment specifically avers in support of Count IV that Aziz via Twitter transmitted a communication providing “names addresses photographs and branches of the military of approximately one hundred United States servicemen” which communication urged: “[K]ill them in their own lands behead them in their own homes stab them to death as they walk their streets thinking that they are safe” (Doc 42 at 3-4) On August 4 2016 the government filed a second notice (Doc 56) of intent to use FISA information this time identifying an intent to use evidence obtained or derived from both physical searches and electronic surveillance Aziz's instant motion followed

         II The Foreign Intelligence Surveillance Act

         Congress enacted FISA in response to perceived abuses of intelligence-gathering and surveillance procedures by federal intelligence agencies in the early 1970s See Am Civil Liberties Union v. Clapper 785 F.3d 787 792-93 (2d Cir 2015) The act establishes a statutory framework under which executive branch agencies may conduct surveillance and searches in foreign intelligence investigations See 50 USC § 1801 et seq FISA authorizes the Chief Justice of the United States to designate eleven district court judges to sit as judges on the Foreign Intelligence Surveillance Court (“FISC”) Id. § 1803(a)(1) FISC judges review and resolve the government's ex parte applications for orders permitting surveillance or searches See id FISA also establishes the Foreign Intelligence Court of Review (“FICR”) comprised of three district court or circuit court judges to review decisions of the FISC Id. § 1803(b)

         The statute as originally enacted required a high-ranking member of the executive branch “to certify that 'the purpose' of the surveillance is to obtain foreign intelligence information” United States v. Duka 671 F.3d 329 338 (3d Cir 2011) (emphasis added) (quoting In re Sealed Case 301 F.3d 717 723 (FISA Ct Rev 2002)) In 2001 Congress enacted the Patriot Act[2] Among other things the Patriot Act amended FISA to require certification that foreign intelligence gathering is “a significant purpose” rather than “the purpose” of the surveillance or search intended Duka 671 F.3d at 336-37 (3d Cir 2011) Prior to passage of the Patriot Act courts construed “the purpose” to mean “the primary purpose” of the proposed surveillance or search Id. (citing United States v. Duggan 743 F.2d 59 77 (2d Cir 1984)); In re Sealed Case 310 F.3d at 725-26 (collecting cases) Courts have held that the 2001 Patriot Act amendments evinced Congress's intent to relax the juridical “primary purpose” standard In re Sealed Case 310 F.3d at 733; United States v. Hasbajrami No 11-CR-623 2016 WL 1029500 at *4 (EDNY Feb 18 2016) (citing United States v. Abu-Jihaad 630 F.3d 102 119 (2d Cir 2010)); United States v. Kashmiri No 09-CR-830 2010 WL 4705159 at *4 (ND Ill. Nov 10 2010)

         FISA's application requirements are rigorous by design The statute obliges the government to make detailed factual showings about the target of the proposed surveillance or search the information sought and the facilities at which the surveillance or search are directed See 50 USC §§ 1804(a) 1823(a) The application must be personally reviewed and approved by the Attorney General of the United States before submission to the FISC Id. §§ 1804(d) 1823(d)

         FISA authorizes the government to use information obtained or derived from FISC-authorized electronic surveillance or physical searches in federal state or local criminal prosecutions Id. §§ 1806(a) 1825(a) The government must provide notice to the court and to each “aggrieved person” of its intent to disclose or to use such information Id. §§ 1806(c) 1825(d) The “aggrieved person” may then move to suppress FISA-acquired evidence on grounds that “the information was unlawfully acquired” or the surveillance or search “was not made in conformity with an order of authorization or approval” Id. §§ 1806(e) 1825(f)

         III Discussion

         Aziz filed the instant motion to suppress and for disclosure of FISA-related information pursuant to 50 USC §§ 1806(e) and 1825(f) (Doc 62) Aziz moors his requests in a combination of procedural statutory and constitutional challenges to FISA generally and as applied in this case (See Doc 63) Aziz asserts: (1) that he is entitled to discovery of the government's FISA applications and any supporting materials and that failure to disclose this material violates his rights under the United States Constitution; (2) that the underlying FISA applications may contain intentional or reckless material falsehoods or omissions in violation of Franks v. Delaware 438 U.S. 154 (1978); and (3) that the government may not have fully complied with the statute in its application for or implementation of the FISA orders (See Doc 63 at 10-12)[3] The court will address these issues seriatim

         A Notice and Disclosure

         FISA's statutory language is unequivocal that disclosure of warrant applications and supporting materials is the exception not the rule See 50 USC §§ 1806(f) 1825(g) When in answer to a suppression motion the Attorney General files an affidavit stating “under oath that disclosure or an adversary hearing would harm the national security ” the district court “shall review in camera and ex parte the application order and such other materials relating to” the surveillance or search to determine whether intelligence-gathering was “lawfully authorized and conducted” Id. The court may disclose “portions of” the underlying applications and supporting materials to the aggrieved person “only where such disclosure is necessary to make an accurate determination of the legality” of the surveillance or search Id. Courts interpreting this language have uniformly held that in camera and ex parte hearings are the “rule” and that disclosure is the “exception occurring only when necessary” Duggan 743 F.2d at 78; United States v. Belfield 692 F.2d 141147 (DC Cir 1982)

         The government correctly observes that every court but one to have addressed a similar motion has found disclosure to be unnecessary (Doc 71 at 23-25 (collecting cases)) The only district court to order disclosure was overturned swiftly on appeal See United States v. Daoud No 12-CR-723 2014 WL 321384 at *3 (ND Ill) rev'd 755 F.3d 479 481-85 (7th Cir) reh'g en banc denied 761 F.3d 678 (7th Cir 2014) cert denied 135 S.Ct. 1456 (2015) But to the extent the government intimates that disclosure is inappropriate merely because it is unprecedented we reject the suggestion That disclosure has not previously been ordered does not foreclose the possibility

         Moreover the court questions whether this consensus accurately reflects Congressional intent The statute is explicit in acknowledging that there may arise circumstances when “disclosure is necessary to make an accurate determination of the legality of the surveillance” 50 USC §§ 1806(f) 1825(g) The legislative history reveals that Congress may not have intended to place the disclosure option so far out of reach:

Thus in some cases the Court will likely be able to determine the legality of the surveillance without any disclosure to the defendant In other cases however the question may be more complex because of for example 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 In such cases the committee contemplates that the court will likely decide to order disclosure to the defendant in whole or in part since such disclosure “is necessary to make an accurate determination of the legality of the surveillance”

S Rep No 95-604 pt 2 at 58 (1978) (emphasis added) (citing Taglianetti v. United States 394 U.S. 316 317 (1969); Alderman v. United States 394 U.S. 165 182 n14 (1968)) We review Aziz's disclosure request scrupulously adhering to constitutional principles and statutory dictates.

         Attorney General Loretta E Lynch executed a declaration and claim of privilege asserting that disclosure of the FISA materials would harm national security (Doc 71-1 ¶ 3) The Attorney General's declaration is supported by classified declaration of Carl Ghattas Assistant Director of the Counterterrorism Division of the Federal Bureau of Investigation (See id ¶ 4) The declarations and assertion of privilege are subject to “minimal scrutiny ” and we may not “second-guess” the Attorney General's representations In re Grand Jury Proceedings of Special April 2002 Grand Jury 347 F.3d 197 205 (7th Cir 2003) (citing Duggan 743 F.2d at 77) In light of this claim of privilege FISA permits disclosure only if an in camera and ex parte review of the materials reveals that disclosure is necessary for an accurate determination of the legality of the surveillance or search 50 USC §§ 1806(f) 1825(g)

         Aziz maintains that the government's failure to disclose FISA materials transgresses the Fourth Fifth and Sixth Amendments and eviscerates the very purpose of our adversary system of justice (Doc 63 at 43-47 56-61) Aziz alleges that FISA allows the government to reverse engineer prosecutions concealing their “most intrusive and controversial surveillance methods in order to thwart any adversarial challenge” (Id. at 53-56) Aziz exhorts that these considerations both separately and together jeopardize his right to a fair trial.

         Congress was neither unmindful to these concerns nor unaware of its deviation from traditional adversarial practice In enacting FISA Congress sought to achieve parity among two critical but competing interests-to “reconcile national intelligence and counterintelligence needs with constitutional principles in a way that is consistent with both national security and individual rights” S Rep No 95-701 at 16 (1978) reprinted in 1978 USCCAN 3973 3985 The net effect is that a defendant's rights remain protected not through traditional notice or disclosure channels but through the “in-depth oversight of FISA surveillance by all three branches of government ” Belfield 692 F.2d at 148 This system of legislative executive and judicial supervision adequately guards a defendant's constitutional rights Indeed FISA's ex parte review provisions have withstood every Fourth Fifth and Sixth Amendment challenge levied against them[4] We find no constitutional deficiency in FISA's notice and disclosure provisions

         In providing for in camera and ex parte review Congress entrusted district courts to meticulously review the FISA record for any indication of unlawfulness and to authorize disclosure when “necessary” to protect the defendant's rights 50 USC §§ 1806(f) 1825(g) This court has complied with the statutory directive We can fairly characterize the FISA materials in the instant case as “uncomplicated” See eg Belfield 692 F.2d at 147; United States v. Warsame 547 F.Supp.2d 982 987-88 (D Minn 2008); United States v. Abu-Jihaad 531 F.Supp.2d 299 310 (D Conn 2008) Our inspection reveals no evidence or indication of irregularity inconsistency or insufficiency which might warrant disclosure to defense counsel of any portion of the FISA materials See S Rep No 95-604 pt 2 at 58 The court is fully satisfied that it is able to make the requisite legal determinations on the basis of its in camera and ex parte review Disclosure is unnecessary under §§ 1806(f) and 1825(g)

         Nor do other authorities cited by Aziz mandate disclosure Sections 1806(g) and 1825(h) of FISA provide that a court denying a defense motion for disclosure may permit discovery nonetheless “to the extent that due process requires” 18 USC §§ 1806(g) 1825(h) The act's legislative history makes clear that Congress sought to displace traditional discovery in favor of the FISA disclosure provisions to the extent “constitutionally possible” United States v. Thomson 752 F.Supp. 75 82 (WDNY 1990) (citing HR Rep 95-1283 pt 1 at 94 n50 (1978)); United States v. Spanjol 720 F.Supp. 55 59 (ED Pa 1989) (same) The due process exceptions of §§ 1806(g) and 1825(h) limit permissible discovery to that which is constitutionally mandated such as the obligations articulated in Brady v. Maryland 373 U.S. 83 (1963) Thomson 752 F.Supp. at 82-83 (quoting Spanjol 720 F.Supp. at 59) The court's review of the FISA record reveals no exculpatory material that must be disclosed on the basis of Brady and its progeny.

         For the same reason Aziz's invocation of the Federal Rules of Criminal Procedure also falls flat Aziz suggests that Rules 12 and 16 at minimum demand notice of the methods of surveillance or searches conducted Congress intentionally replaced these discovery rules with FISA's disclosure framework See Thomson 752 F.Supp. at 82; Spanjol 720 F.Supp. at 59 In other words Congress “rendered Rule 16 and other existing laws inapplicable to discovery” in the FISA context Thomson 725 F.Supp. at 82 (quoting HR Rep 95-1283 pt 1 at 94 n50) Federal Rules 12 and 16 do not and cannot supersede FISA's statutory prohibition on disclosure.

         Aziz's reliance on 18 USC § 3504 is misplaced Section 3504 requires the government in a traditional criminal prosecution to affirm or deny the occurrence of surveillance when the defendant claims that evidence deriving therefrom is the primary product of an unlawful act 18 USC § 3504 Section 3504 concerns only unlawful surveillance; it does not require affirmance or denial of all surveillance Id. § 3504 Further in cases involving FISA information a suppression motion pursuant to §§ 1806(e) or 1825(f) “is the procedure clearly contemplated by the foreign intelligence statutes for resolving allegations of unlawful surveillance” United States v. Thomas No 15-171 2016 WL 4409101 at *4 F.Supp.3d (ED Pa 2016) FISA's particularized notice disclosure and suppression procedures supplant the requirements of § 3504.

         Aziz lastly cites to 50 USC § 1881e for the proposition that FISA “expressly requires” the government to provide him “with notice of some types of surveillance at issue” (Doc 63 at 49-50) Section 1881e governs the use of information obtained through surveillance conducted under the FISA Amendments Act of 2008 (“FAA”) Pub L No 95-511122 Stat 2437 (July 10 2008) which authorizes surveillance of persons outside of the United States under a reduced government burden See 50 USC §§ 1881a-1881g The cited section merely incorporates FISA's preexisting notice and disclosure provisions making them equally applicable to the FAA See id § 1881e Section 1881e does not establish additional notice and disclosure requirements.

         A defendant's constitutional rights necessarily exist in counterpoise with all citizens' collective interest in our nation's security In camera and ex parte review adequately preserves both interests The court will deny Aziz's motion for notice and disclosure of the government's applications[5]

         B Request for Franks Hearing

         Aziz also requests that the court convene a Franks hearing to allow counsel to test the veracity of the FISA applications A criminal defendant may challenge the truthfulness of factual statements in an affidavit of probable cause through what is commonly referred to as a Franks proceeding See Franks v. Delaware438 U.S. 154 (1978) When a defendant makes “a substantial preliminary showing” that the affidavit in question contains a false statement which was both knowingly or recklessly made and material to the finding of probable cause the court must conduct an evidentiary hearing to examine the sufficiency of the affidavit United States v. Yusuf461 F.3d 374 383 (3d Cir 2006) ...

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