JURIST Guest Columnist Tung Yin of the Lewis & Clark Law School says the standard of review of Foreign Intelligence Surveillance Act warrant applications too heavily favors the government by creating an evidentiary burden nearly impossible for defendants to overcome…

Earlier this month, in US v. Hammadi, a district judge in Kentucky denied a defendant’s motion for disclosure of Foreign Intelligence Surveillance Act (FISA) evidence, with the ultimate goal of suppressing such evidence. Hammadi might not be an unusual case in terms of its result, but it illustrates well the tough odds against a defendant fighting FISA-derived evidence, due to the cloak of secrecy that the act allows the government to invoke in the name of national security.

Defendant Mohanad Shareef Hammadi is an Iraqi citizen who came into the US in 2009 through a Refugee Admissions Program. He settled in Bowling Green, Kentucky after initially living in Las Vegas. In 2011, he and Waad Ramadan Alwan were indicted on a variety of terrorism-related charges, including providing material support to terrorists and to designated foreign terrorist organizations in the form of money and weapons that he believed would be delivered to the mujahidin in Iraq. Alwan pleaded guilty, but Hammadi continued to contest the allegations against him.

During pre-trial proceedings, the government informed Hammadi that it would be using electronic surveillance and/or physical evidence secured via a FISA warrant against him. Hammadi objected.

Congress enacted FISA in 1978 to address the Executive Branch’s perceived lack of control over electronic surveillance for the purpose of foreign intelligence gathering, as opposed to domestic, criminal investigation, which was already governed by 18 USC § 2518. A special court consisting of Article III judges reviews FISA warrant applications. The key difference between FISA and § 2518 electronic surveillance warrant applications is the probable cause standard that is applied. Section 2518 warrant applications are tested under a standard of probable cause requiring a belief that the target has committed, is committing or is about to commit a crime. The FISA standard is not about past, present or future criminal activity; rather, the standard is probable cause to believe that the target is a foreign power or an agent of a foreign power. FISA warrants are procured through an entirely ex parte process, as is the case with traditional criminal investigation warrants.

Sections 1806 and 1825 of FISA state that when FISA-derived evidence is to be used in a criminal case the defendant is entitled to seek suppression of that evidence on two bases: “(1) the information was unlawfully acquired; or (2) the surveillance/physical search was not made in conformity with an order of authorization or approval.” This is consistent with Franks v. Delaware, in which the Supreme Court held that, upon a sufficient threshold showing, a criminal defendant is entitled to a hearing to attack the validity of a search warrant by, among other things, challenging the factual allegations contained in the affidavit supporting the warrant application. According to the Court,

[T]he challenger’s attack must be more than conclusory, and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false.

Hammadi sought to challenge the FISA warrant application — that is, to show that “the surveillance was not made in conformity with an order of authorization or approval.” This is where Hammadi ran into problems with FISA’s complicated, national security-driven structure. Section 1806 provides that if the Attorney General attests “under oath that disclosure or an adversary hearing would harm the national security of the United States,” then the district court must engage in an in camera and ex parte review of the very documents that the defendant would like to examine to make the case that the warrant application contained false statements. The district court is permitted to disclose parts of the application, the authorization order, or other surveillance-related documents under protective orders “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”

Not surprisingly, Hammadi failed to satisfy the Franks standard. After all, as even the district court in this case conceded, “Hammadi cannot offer any proof that statements in the FISA applications were false or were deliberately or recklessly made because Hammadi has not been able to examine the applications.” (emphasis added). That said, the court did conduct, as required by §1806, an in camera and ex parte review of the FISA documents and concluded that there was probable cause to believe that Hammadi was an agent of a foreign power, and that the FISA-derived evidence was secured in accordance with the authorization order.

The national security-driven cloak of secrecy that the government is entitled to throw over its documents to obviate an adversarial hearing is hardly unique to FISA. The Classified Information Procedures Act (CIPA), for example, permits the government, with the court’s permission, to substitute “a summary of” or “a statement admitting” to the facts that would be established in classified materials that are relevant and helpful to the defense. The defendant can challenge the adequacy of the substitution, however, as with FISA, this challenge may be crippled due to the defendant’s lack of access to the underlying materials. Critics of CIPA have noted that a court’s ex parte review may be sorely inadequate, because the judge might not be well positioned to evaluate the evidence from the defendant’s point of view.

This problem also exists with FISA. Consider, for example, where the government’s assertion that the target is an agent of a foreign power rests in part on alleged statements made by friends or relatives of the target. A judge reviewing the application ex parte is capable of determining whether the allegations suffice to establish probable cause to believe that the target is an agent of a foreign power. However, the judge is much less capable of assessing the veracity of the affiant’s assertions without the benefit of an adversarial presentation. If given the opportunity, the target could perhaps present contrary testimony from the friends or relatives identified in the affidavit. This, in fact, is what the defendant in Franks wanted to show, and he was given a chance to do so, because that case involved a traditional criminal search warrant, not a FISA warrant.

National security concerns are important, but FISA’s structure, combined with the virtually impossible to meet Franks-standard, may tilt too far in favor of the government.

Tung Yin is a Professor of Law at Lewis & Clark Law School. His scholarly work has focused primarily on domestic legal issues arising out of the US military and prosecutorial responses to the 9/11 attacks and has examined such matters as the jurisdiction of the federal courts to entertain habeas petitions by Guantanamo Bay detainees, the theory of unilateral executive branch war powers, and the potential constitutional rights available to alien detainees outside the country.

Suggested citation: Tung Yin, Objecting to Secret Evidence Under FISA, JURIST – Forum, Feb. 24, 2012, http://jurist.org/forum/2012/02/tung-yin-fisa.php.