JURIST Guest Columnist Jimmy Gurulé of the University of Notre Dame Law School says that Congress may have chosen to protect national security interests over the rights of criminal defendants in allowing a lower standard of constitutional protections under FISA…

Defendant Mohanad Shareef Hammadi, an Iraqi citizen who was granted refugee status under the Refugee Admissions Program and resided in Bowling Green, Kentucky, was arrested and charged with 10 terrorism-related offenses. The indictment alleged that Hammadi and a co-defendant attempted to provide material support and resources to members of al Qaeda in Iraq, a designated foreign terrorist organization, including rocket-propelled grenade launchers, hand grenades, machine guns, cases of C4 plastic explosives, sniper rifles and money, to be used in the preparation for and killing of Americans located outside the US. Hammadi and his co-defendant were also charged with attempting to provide two Stinger surface-to-air missile launcher systems to al Qaeda in Iraq for the purpose of killing Americans abroad.

Prior to trial, Hammadi filed a motion to disclose and suppress evidence obtained pursuant to electronic surveillance and a physical search authorized under the Foreign Intelligence Surveillance Act (FISA). Hammadi alleged that the evidence should be suppressed on the grounds that it was illegally obtained or not collected in conformity with the order of the Foreign Intelligence Surveillance Court.

The government opposed disclosure and suppression of the FSIA evidence, invoking in camera and ex parte review procedures provided under the act. Pursuant to those statutory provisions, the government filed an affidavit of the US Attorney General, claiming that disclosure of the FISA materials and an adversarial hearing on the motion “would harm the national security of the United States.”

Upon filing such an affidavit, FISA requires the district court to review the FISA warrant applications and related materials in camera and ex parte to determine whether the surveillance and physical search was “lawfully authorized and conducted.” On the issue of probable cause, FISA authorizes the district court to conduct a de novo review. The issue is whether the FISA applications supported a finding of probable cause that the target of the surveillance and search was a “foreign power” or “agent of a foreign power” and that the facilities or property subject to the FISA warrant were owned, used or possessed by a foreign power or agent of a foreign power. This FISA probable cause standard is different from the probable cause standard applied to criminal arrests and search warrants. However, courts have repeatedly held FISA’s probable cause standard to be constitutional.

Under the act, the district court may disclose the FISA applications, orders or other materials related to the surveillance or search “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance [or search].” The district court in Hammadi found that neither disclosure nor an adversary hearing was required to make an accurate determination as to the legality of the evidence. Ultimately, the district court held that the electronic surveillance and physical search were lawfully conducted and any evidence garnered was collected in compliance with the governing FISA orders and procedures.

The district court also denied Hammadi’s challenge that the FISA applications violated Franks v. Delaware. A Franks hearing allows a criminal defendant “to challenge the truthfulness of factual statements made in an affidavit supporting [a] warrant.” If statements in the affidavit were knowingly and intentionally false or made with reckless disregard for the truth, and the allegedly false statements were necessary to the finding of probable cause, the evidence is suppressed. The district court found that Hammadi failed to offer any proof that the statements in the FISA applications were false or deliberately or recklessly made.

The Hammadi case highlights the insurmountable legal hurdles defendants face to suppress evidence derived from electronic surveillance or physical searches authorized under FISA. While the district court has discretion to disclose portions of the FISA documents to the “aggrieved person,” “where such disclosure is necessary to make an accurate determination of the legality of the surveillance [or physical search],” no court has found it necessary to do so.

When a motion to suppress FISA evidence is followed by an affidavit of the Attorney General asserting that disclosure of the evidence would jeopardize “national security”, in camera and ex parte review of the FISA material is the rule, and disclosure of the evidence to the defendant is the rare exception. Thus, in virtually every case, defendants are deprived of the statements and other information relied on to authorize the FISA electronic surveillance and physical search, as well as access to the evidence seized pursuant to the FISA warrant.

Hammadi’s motion to suppress was denied by the court without affording him an opportunity to examine the government’s evidence that he was a “foreign power” or “agent of a foreign power.” Hammadi was also denied the opportunity to examine the government’s FISA applications and the FISA court’s orders determining that the government complied with FISA procedural requirements. The district court made these findings without the benefit of any meaningful input by the defendant in an adversarial hearing. Further, because Hammadi has been denied disclosure of the evidence actually seized by the government, he is unable to offer a non-criminal, innocent explanation for the evidence, if there is one.

The nondisclosure rule also deprives criminal defendants of a Franks hearing to challenge the veracity of statements made in an affidavit supporting a FISA warrant. According to the court in United States v. Kashmiri, “Franks provides an important Fourth Amendment safeguard to scrutinize the underlying basis for probable cause in a search warrant.” However, a defendant is unable to offer any proof that statements in the FISA applications were false or recklessly made without being afforded the opportunity to examine the statements contained in the applications. As a result, the request to satisfy the Franks requirements becomes a “wild-goose chase.” Furthermore, the reviewing district court judge is not in a position to challenge the veracity and truthfulness of statements contained in FISA applications. A Franks challenge is essentially rendered a nullity, with no meaningful application, when the electronic surveillance or physical search is conducted pursuant to a FISA order.

While defendants are significantly disadvantaged by not being able to review the FISA materials to legally challenge a FISA warrant, the courts contend that in devising the procedures that govern court review of FISA materials, Congress made a reasonable effort to balance the competing interests in privacy and national security. Congress was aware of the legal impediments confronting defendants seeking to challenge the legality of FISA warrants and chose to resolve those difficulties by means other than mandatory disclosure. In essence, Congress decided that when balancing the competing interests in national security and Fourth Amendment protection from unreasonable search and seizure, national security trumps. At the very least, the targets of a FISA electronic surveillance or physical search order are afforded a lower standard of protection under the Fourth Amendment than the protections afforded defendants subject to criminal arrest or search warrants.

Perhaps Congress struck the proper balance between national security and Fourth Amendment privacy interests under FISA. However, the relaxed standard of Fourth Amendment protection afforded to targets of a FISA order is not limited to foreign nationals. The term “agent of a foreign power” is defined as any person acting for or on behalf of a foreign power, including a US citizen, who is suspected of engaging in proscribed activities enumerated under FISA. Thus, the non-disclosure of FISA materials and evidence seized pursuant to a FISA order applies with equal force to US citizens falling within FISA’s definition of an “agent of a foreign power.”

The interesting issue left unresolved in Hammadi is whether the evidence seized pursuant to FISA surveillance or search orders must be disclosed to the defendant at trial. While courts have consistently ruled that the government’s interest in protecting national security trumps the accused’s privacy interest under the Fourth Amendment, the legal calculation would change dramatically if the government sought to withhold “secret evidence” offered against the defendant at trial. The defendant’s Fifth Amendment right to due process is implicated, and perhaps the Sixth Amendment right of confrontation as well, if testimonial statements made by out-of-court declarants are offered against the accused. While the government’s interest in national security appears paramount in the FISA context when balanced against the defendant’s privacy rights, such national security interests may not prevail against a defendant’s claim that the use of “secret evidence” at trial would deprive him of his constitutional right to due process of law.

Ultimately, the district court’s ruling in Hammadi may only be a temporary victory for the government if it seeks to use the FISA evidence against Hammadi at trial, because application of the Fifth Amendment Due Process Clause may dictate a different result. Due process may trump national security concerns, requiring that the evidence be disclosed to the defendant. Further, the proper balance between protecting national security interests and affording Hammadi a fair trial consistent with due process of law may be determined by applying the Classified Information Procedures Act, which governs the protection and admission of classified information at trial.

Thus, while the use of “secret evidence” against Hammadi may be permitted in a motion to suppress FISA evidence, disclosure of such evidence will likely be mandated by the court if offered against the defendant at trial.

Jimmy Gurulé is a Professor of Law at the University of Notre Dame Law School and an internationally known expert in the field of international criminal law, specifically, terrorism, terrorist financing and anti-money laundering. Gurulé teaches courses in international criminal law, white collar crime, terrorism law and criminal and forensic evidence.

Suggested citation: Jimmy Gurulé, FISA and the Battle Between National Security and Privacy, JURIST – Forum, Feb. 17, 2012, http://jurist.org/forum/2012/02/jimmy-gurule-fisa.php.