No. 12-50841 IN THE UNITED STATES COURT OF APPEALS FOR … · NIDAL HASAN, Defendant-Appellant....

No. 12-50841 _________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, v.

NIDAL HASAN, Defendant-Appellant.

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF TEXAS, NO. 6:12-CV-195 (HON. WALTER S. SMITH, JR.) ____________________

BRIEF FOR THE UNITED STATES

____________________

ROBERT L. PITMAN LISA O. MONACO United States Attorney Assistant Attorney General Western District of Texas J. BRADFORD WIEGMANN GREGORY S. GLOFF Deputy Assistant Attorney General Assistant United States Attorney Western District of Texas STEVEN M. DUNNE Chief, Appellate Unit JOSEPH F. PALMER Attorney, National Security Division United States Department of Justice 950 Pennsylvania Ave. NW, Rm. 6500 Washington, DC 20530 TEL 202.353.9402/FAX 202.514.8053

Case: 12-50841 Document: 00512115090 Page: 1 Date Filed: 01/16/2013

i

STATEMENT REGARDING ORAL ARGUMENT

The government does not believe that oral argument is necessary because the

facts and legal arguments are adequately presented in the briefs and record.


ii

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................ i

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF JURISDICTION.......................................................................... 1

STATEMENT OF THE ISSUES............................................................................... 2

STATEMENT OF THE CASE .................................................................................. 3

STATEMENT OF FACTS ........................................................................................ 4

SUMMARY OF THE ARGUMENT ........................................................................ 9

ARGUMENT ........................................................................................................... 10

I. This Court Has Jurisdiction At This Time To Review The District Court’s Order Determining The Lawfulness Of The FISA Collection. .................................................................................. 10

II. The District Court Properly Denied Hasan’s Motion For Disclosure Of FISA Materials. ........................................................... 13

A. Overview Of FISA And Standard Of Review .......................... 13

B. Neither FISA Nor Due Process Requires Disclosure Of The FISA Materials In This Case. ....................................... 18

III. The District Court Properly Denied Hasan’s Motion To Suppress Because The FISA Collection Was Lawfully Authorized And Conducted. ........................................................................................... 22

A. Standard of Review ................................................................... 22

B. The Applications Established Probable Cause And Otherwise Complied With FISA And The Constitution. ........................... 23

CONCLUSION ........................................................................................................ 26

CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7) .................................. 27 CERTIFICATE OF SERVICE ................................................................................ 28


iii

TABLE OF AUTHORITIES

Cases:

Di Bella v. United States, 369 U.S. 121 (1962) ....................................................... 11

Franks v. Delaware, 438 U.S. 154 (1978) ....................................................... 3, 8, 25

Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012) .......................................................... 6

In re Kevork, 788 F.2d 566 (9th Cir. 1986) ............................................................. 12

Kimmelman v. Morrison, 477 U.S. 365 (1986) ....................................................... 21

Stone v. Powell, 428 U.S. 465 (1976) ...................................................................... 21

United States v. Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010), cert. denied, 131 S. Ct. 3062 (2011) ................................................................................... 17

United States v. Brown, 298 F.3d 392 (5th Cir. 2002) ............................................ 25

United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011), cert. denied, 133 S. Ct. 525 (2012) ................................. 11, 17, 18, 19, 20, 22

United States v. Hamide, 914 F.2d 1147 (9th Cir. 1990) ............................ 11, 12, 13

United States v. Horton, 17 M.J. 1131 (N.M.C.M.R. 1984) ................................... 13

United States v. Leon, 468 U.S. 897 (1984) ............................................................ 24

United States v. Looney, 532 F.3d 392 (5th Cir. 2008) ........................................... 22

United States v. Isa, 923 F.2d 1300 (8th Cir. 1991) ................................................ 12

United States v. Ning Wen, 477 F.3d 896 (7th Cir. 2007) ....................................... 25

United States v. Ott, 827 F.2d 473 (9th Cir. 1987) .................................................. 12

Statutes:

Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. ............................. 1

50 U.S.C. §§ 1801-1812 ................................................................................ 14


iv

Statues – continued:

50 U.S.C. § 1801(a) ....................................................................................... 14

50 U.S.C. § 1801(e) ................................................................................. 14, 15

50 U.S.C. § 1801(h) ....................................................................................... 15

50 U.S.C. § 1801(k) ....................................................................................... 17

50 U.S.C. § 1802(b) ....................................................................................... 14

50 U.S.C. § 1803(a) ....................................................................................... 14

50 U.S.C. § 1804 ............................................................................................ 14

50 U.S.C. § 1804(a) ................................................................................. 14, 15

50 U.S.C. § 1805(a) ........................................................................... 14, 15, 16

50 U.S.C. § 1805(c) ............................................................................. 5, 15, 16

50 U.S.C. § 1806(c) ................................................................................... 3, 16

50 U.S.C. § 1806(e) ....................................................................................... 17

50 U.S.C. § 1806(f).................................................................................passim

50 U.S.C. § 1806(g) ....................................................................................... 18

50 U.S.C. §§ 1821-1829 ................................................................................ 14

50 U.S.C. § 1821(1) ....................................................................................... 14

50 U.S.C. § 1821(2) ....................................................................................... 17

50 U.S.C. § 1821(4) ....................................................................................... 15

50 U.S.C. § 1822(c) ....................................................................................... 14

50 U.S.C. § 1823 ...................................................................................... 14, 23

50 U.S.C. § 1823(a) ................................................................................. 14, 15

50 U.S.C. § 1824(a)(1)-(4) ............................................................................ 16


v

Statutes – continued:

50 U.S.C. § 1824(c) ................................................................................. 15, 16

50 U.S.C. § 1825(g) ......................................................................................... 8

10 U.S.C. § 880 ...................................................................................................... 3, 4

10 U.S.C. § 918(1) ................................................................................................. 3, 4

28 U.S.C. § 1291 .............................................................................................. 2, 9, 11


1

No. 12-50841

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. NIDAL HASAN,

Defendant-Appellant. ____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF TEXAS, NO. 6:12-CV-195 (HON. WALTER S. SMITH, JR.) ____________________

BRIEF FOR THE UNITED STATES

____________________

STATEMENT OF JURISDICTION

This is an appeal from an order denying appellant Nidal Hasan’s motion to

suppress evidence obtained from electronic surveillance and physical searches

conducted pursuant to the Foreign Intelligence Surveillance Act (“FISA”), 50

U.S.C. § 1801 et seq., that the government intends to use in a General Court-

Martial currently pending against Hasan in Fort Hood, Texas. In the order, the

district court also denied Hasan’s motion to compel discovery of the FISA

applications, affidavits, orders, and other materials related to the FISA surveillance

and searches. The district court’s order denying Hasan’s motions and finding that


2

the surveillance and searches were lawfully authorized and conducted was entered

on August 14, 2012. R. 107 (ER 101).1 Hasan filed a timely notice of appeal on

August 16, 2012. R. 109 (ER 102).

The district court had jurisdiction over Hasan’s motions to suppress and to

compel discovery pursuant to 50 U.S.C. § 1806(f). This Court has jurisdiction

under 28 U.S.C. § 1291. As explained in Part I below, this Court has jurisdiction

to review the district court’s order denying his FISA claims at this time, even

though the underlying court-martial is still pending, because this Court would not

have appellate jurisdiction over the court-martial’s final judgment.

STATEMENT OF THE ISSUES

1. Whether this Court has jurisdiction at this time over this appeal of a

district court order denying motions to discover FISA materials and to suppress

FISA-obtained or -derived evidence that the government intends to introduce in a

court-martial, even though the court-martial is still pending.

2. Whether the district court abused its discretion in denying Hasan’s

motion for disclosure of FISA applications, affidavits, orders, and related

materials, and evidence obtained or derived from FISA.

1 References to the record are shown as “R. __” where the blank is the

“USCA5” page number in the lower right corners. References to Hasan’s Excerpts of Record are shown as “ER __.”


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3. Whether the district court properly denied Hasan’s motion for

suppression of evidence obtained or derived from FISA, without holding a hearing

under Franks v. Delaware, 438 U.S. 154 (1978).

STATEMENT OF THE CASE

In 2009, the government charged Hasan, a major in the United States Army,

with 13 specifications2 of premeditated murder in violation of 10 U.S.C. § 918(1),

and 32 specifications of attempted premeditated murder in violation of 10 U.S.C. §

880, alleging that Hasan carried out a mass shooting at Fort Hood, Texas on

November 5, 2009. R. 97 (ER 91). On July 6, 2011, those charges were referred

for trial to a General Court-Martial, with authorization to consider the death

penalty. R. 26-27 (ER 21-22).

On July 10, 2012, the government provided Hasan and the presiding military

judge with notice, as required by 50 U.S.C. § 1806(c), that the government

intended to use evidence obtained or derived from electronic surveillance or

physical searches conducted pursuant to FISA. R. 80, 97 (ER 76, 91). On July 20,

2012, Hasan moved the military court to compel disclosure of the applications,

affidavits, orders, and related materials submitted to the Foreign Intelligence

Surveillance Court (“FISC”) (collectively, the “FISA materials”) and to suppress

2 A “specification” in the military justice system is analogous to a “count” in

a federal criminal indictment.


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the FISA-obtained or -derived evidence. R. 76 (ER 72). On July 25, 2012, the

military judge, acting pursuant to 50 U.S.C. § 1806(f), transferred Hasan’s motions

to the United States District Court for the Western District of Texas. R. 84 (ER

80). On August 14, 2012, the district court entered an order denying Hasan’s

motions and finding that the surveillance and searches were lawfully authorized

and conducted. R. 96-107 (ER 90-101). This appeal followed.

STATEMENT OF FACTS

1. Appellant Nidal Hasan is a major in the United States Army. On

November 12, 2009, the government charged Hasan with 13 specifications of

premeditated murder, in violation of 10 U.S.C. § 918(1). On December 2, 2009,

the government charged Hasan with 32 specifications of attempted premeditated

murder, in violation of 10 U.S.C. § 880. The charges allege that Hasan carried out

a mass shooting at Fort Hood, Texas on November 5, 2009. R. 97 (ER 91).

In accordance with Article 32 of the Uniform Code of Military Justice, the

Army conducted an impartial investigation of the charges against Hasan to

determine whether those charges should be referred for trial by court-martial. R.

26 (ER 21). On November 16, 2010, the investigating officer recommended that

all of the charges should be referred to a General Court-Martial and that the court-

martial should be authorized to consider the death penalty. R. 26-27 (ER 21-22).

On July 6, 2011, the Convening Authority, Lieutenant General Donald M.


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Campbell, Jr., referred all of the charges and specifications to a General Court-

Martial that is authorized to consider the death penalty. R. 26-27 (ER 21-22).

In July 2011, Hasan was arraigned before Fort Hood’s Chief Circuit Judge,

Colonel Gregory Gross. R. 27 (ER 22). On July 10, 2011, the prosecution

provided notice pursuant to 50 U.S.C. § 1806(c) to Hasan and Judge Gross that the

United States “intends to offer into evidence, or otherwise use or disclose in any

proceedings in the above-captioned matter, information obtained or derived from

electronic surveillance conducted pursuant to [FISA].” R. 80 (ER 76). Hasan

then served on the government a request for discovery of all information obtained

or derived from FISA surveillance, as well as the FISA applications, affidavits,

orders, and other documents related to the FISA surveillance. R. 82 (ER 78). On

July 20, 2011, Hasan filed in military court a motion (1) to compel disclosure of

the FISA materials and the evidence obtained or derived from FISA, and (2) to

suppress the FISA-obtained or -derived evidence. R. 76-79 (ER 72-75).

2. FISA provides United States District Courts with exclusive

jurisdiction to adjudicate motions to suppress FISA-obtained or -derived evidence

brought before “any court or other authority of the United States.” 50 U.S.C. §

1806(f). The government accordingly moved the military judge to refer

adjudication of Hasan’s motions to the United States District Court for the Western

District of Texas, the district that includes Fort Hood. The military judge initially


6

denied the motion, but, upon reconsideration, issued an order directing removal of

Hasan’s FISA-related motions to United States District Court.3 R. 84 (ER 80).

On July 27, 2012, the government filed a petition in the United States

District Court for the Western District of Texas for a judicial determination of the

legality of the FISA surveillance and searches that Hasan challenged in his motions

in military court. R. 4-11 (ER 8-15). On August 10, 2012, the district court (Judge

Walter S. Smith, Jr.) granted the government’s petition for review. R. 88-91 (ER

84-87). The government then submitted a classified memorandum opposing

Hasan’s motions, as well as certified copies of the relevant FISA applications,

affidavits, orders, and other materials. The government publicly filed an

unclassified, redacted version of its memorandum. R. 23-72 (ER 18-68).

In its petition and memoranda, the government asked the district court to

review the FISA materials in camera and ex parte pursuant to 50 U.S.C. § 1806(f).

R. 28 (ER 23). In support of that request, the government filed an unclassified

declaration and claim of privilege by the Attorney General stating that national

security would be harmed if the FISA materials were disclosed or subjected to an

adversary hearing. R. 85 (ER 81). The government also submitted a classified

3 Hasan’s trial has not yet begun. After Hasan’s FISA-related motions were

removed to district court, Hasan took an interlocutory appeal in the military justice system seeking recusal of the presiding military judge. On December 3, 2012, the United States Court of Appeals for the Armed Forces ruled in Hasan’s favor and ordered the case transferred to a different judge. Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012). The new judge has not yet set a trial date.


7

declaration by the Assistant Director of the FBI’s Counterterrorism Division

setting forth in detail the specific facts on which the Attorney General’s declaration

was based. R. 86 (ER 82).

After reviewing the submissions, the district court denied Hasan’s motions

for production of the FISA materials and suppression of the evidence. The court

found, in a public opinion and order, that the relevant surveillance and searches

were lawfully authorized and lawfully conducted in accordance with the

requirements of FISA and the Constitution. R. 96-107 (ER 90-101). The court

found that the surveillance and searches at issue complied with the specific

requirements that FISA imposes, including that each application established

probable cause that the target of the surveillance or search was an agent of a

foreign power, that each application established a sufficient nexus between the

agent of a foreign power and the facilities or places that were subjected to

surveillance or search, that each application contained all required statements and

certifications, that each application contained the required minimization procedures

and that those procedures were properly implemented by the government, and that

a significant purpose of the surveillance was to collect foreign intelligence

information. R. 99-100 (ER 93-94).

The district court also rejected Hasan’s claim that disclosure to defense

counsel of the FISA materials was warranted under FISA because, the court found,


8

such disclosure was not “necessary to make an accurate determination of the

legality of the surveillance.” R. 101 (ER 95) (quoting 50 U.S.C. §§ 1806(f),

1825(g)). The court noted that “[t]he FISA materials here are well organized and

readily understood” and that the materials “provide[d] all of the information

needed to overcome the concerns and arguments raised by [Hasan].” R. 101-02

(ER 95-96).

The district court also rejected Hasan’s constitutional challenges to the FISA

surveillance and searches and to the in camera and ex parte process that FISA

authorizes for the adjudication of suppression motions. R. 104 (ER 98). The court

noted that “[t]he constitutionality of FISA’s in camera, ex parte review provisions

has been affirmed by every Federal court that has considered the matter,” R. 104

(ER 98) (citing cases), and concluded that “due process does not require any

disclosure in this case.” R. 102 (ER 96). The court also rejected Hasan’s request

for an adversarial hearing under Franks v. Delaware, 438 U.S. 154 (1978), because

the court found “no indication that any false statements were included in the FISA

materials.” R. 106 (ER 100). Finally, the court concluded that, even if the FISA

collection were not lawfully authorized, the evidence would still be admissible

under the “good faith” exception to the exclusionary rule. R. 103 (ER 97).


9

SUMMARY OF THE ARGUMENT

1. This Court has jurisdiction at this time to review the district court’s

order denying Hasan’s motions for disclosure of the FISA materials and

suppression of the evidence obtained or derived from FISA, even though the

underlying court-martial is still pending. The district court’s order conclusively

determined the only issue in the district court proceeding. That proceeding is a

separate lawsuit in a separate jurisdiction from the underlying court-martial,

making the district court’s order a final decision from which Hasan may

immediately appeal to this Court under 28 U.S.C. § 1291. In addition, because this

Court would lack jurisdiction over any final judgment of conviction entered in

Hasan’s court-martial, the only available avenue by which Hasan may obtain

review of the district court’s order denying his FISA-related motions is through

direct appeal of that order to this Court.

2. The district court did not abuse its discretion in denying Hasan’s

motion for disclosure of the FISA materials. As the district court correctly found,

disclosure of the FISA materials was not warranted under FISA, because the

district court was able to assess the legality of the surveillance through the in

camera and ex parte review procedures provided for by FISA. The district court

also correctly held that due process does not require disclosure of the FISA

materials. As this Court has recently held in an analogous case, the government’s


10

interest in protecting against disclosure of extremely sensitive national security

information outweighs Hasan’s interest in obtaining access to the FISA materials.

3. The district court properly denied Hasan’s motion to suppress the

fruits of FISA surveillance and searches because the FISA collection was lawfully

authorized and lawfully conducted. The classified record demonstrates that the

FISA applications complied with all applicable requirements, including

establishing probable cause to believe that the targets were agents of a foreign

power at the time collection was authorized. The district court also properly

denied Hasan’s request for a Franks hearing because the record reveals no basis for

a finding that probable cause rested on any deliberately or recklessly false

statements or omissions.

ARGUMENT

I. This Court Has Jurisdiction At This Time To Review The District Court’s Order Determining The Lawfulness Of The FISA Collection.

In its briefing order, this Court asked the parties to address the question

whether the Court has jurisdiction over this appeal at this time. In the

government’s view, even though Hasan’s court-martial is still pending, this Court

has appellate jurisdiction over the appeal at this time.

This case arose when the government filed a petition under 50 U.S.C. §

1806(f) in the district court below for a determination of the legality of FISA

surveillance and searches, so that the government could use the fruits of the


11

surveillance and searches in Hasan’s court-martial. The district court’s order

finding that the surveillance and searches were lawfully authorized and lawfully

conducted, and accordingly denying Hasan’s motions for discovery and

suppression, conclusively determined the only issue in this lawsuit and amounts to

a “final decision” within the meaning of 28 U.S.C. § 1291.

To be sure, Hasan’s motions originally arose in a court-martial that is still

pending, and this appeal could arguably be deemed “interlocutory” with respect to

the underlying military proceeding. And, ordinarily, when a district court denies a

defendant’s motion for discovery or suppression of FISA evidence in a federal

criminal prosecution, the defendant may not take an immediate interlocutory

appeal of that order but must instead raise the issue in an appeal from the final

judgment. See Di Bella v. United States, 369 U.S. 121, 129-30 (1962) (denial of

suppression motions are generally reviewable only on appeal from final judgment

of conviction); United States v. Hamide, 914 F.2d 1147, 1151 (9th Cir. 1990)

(holding that, because denial of motion to suppress FISA evidence in a deportation

proceeding is not “final,” the petitioner may only appeal from final order of

deportation); United States v. El-Mezain, 664 F.3d 467, 563-70 (5th Cir. 2011)

(reviewing denial of motion to suppress FISA evidence after final judgments in

criminal proceedings), cert. denied, 133 S. Ct. 525 (2012). However, even if a

district court order in these circumstances is not “final,” the court of appeals has


12

jurisdiction to review it under the collateral order doctrine. See Hamide, 914 F.2d

at 1151-52 & n.4. That doctrine permits appeal of an interlocutory order if the

order conclusively determines an important issue separate from the merits, and if

the party would have no other opportunity to appeal. Id. at 1151. Accordingly,

courts have recognized that, when a district court determines the lawfulness of

FISA surveillance or searches for the purpose of introducing that evidence in a

separate jurisdiction, such as a military, state, or foreign proceeding, the defendant

may immediately appeal the district court’s decision to the appropriate court of

appeals because there would be no other opportunity to appeal. See id. at 1152

(recognizing availability of appellate review of FISA determinations “before the

entry of a final judgment in the underlying action” when the court of appeals

“lacked appellate jurisdiction over that final judgment”); United States v. Ott, 827

F.2d 473, 475-76 (9th Cir. 1987) (conducting appellate review of district court’s

denial of a FISA suppression motion where the underlying proceeding was a court-

martial); In re Kevork, 788 F.2d 566, 567-69 (9th Cir. 1986) (holding that the court

had jurisdiction under Section 1291 to review a district court decision upholding

the legality of FISA evidence to be used in a Canadian proceeding, before the

Canadian proceeding was completed); United States v. Isa, 923 F.2d 1300, 1302

(8th Cir. 1991) (hearing an appeal of a district court order upholding the legality of


13

FISA surveillance when the state trial at which the resulting evidence would be

introduced had not yet taken place).

In this case, the district court’s order denying Hasan’s motions to compel

discovery of FISA materials and to suppress the fruits of FISA surveillance

conclusively determines an important issue that is separate from the merits of

Hasan’s court-martial. And it would not be possible for Hasan to obtain appellate

review of his FISA claims through an appeal from a judgment of conviction in his

court-martial. Military appellate courts would lack jurisdiction to review the

district court’s determination of the lawfulness of FISA surveillance, see United

States v. Horton, 17 M.J. 1131, 1133 (N.M.C.M.R. 1984), and this Court would

lack jurisdiction to review the underlying court-martial judgment, see Hamide, 914

F.2d at 1152 n.4. Thus, because there will be no later opportunity for appellate

review, this Court has jurisdiction at this time to review the district court’s order

denying Hasan’s FISA claims.

II. The District Court Properly Denied Hasan’s Motion For Disclosure Of FISA Materials.

A. Overview Of FISA And Standard Of Review

FISA establishes procedures by which the government, acting through the

Attorney General, may obtain an order authorizing surveillance or searches

targeting a foreign power or its agents for the purpose of obtaining foreign-


14

intelligence information. 50 U.S.C. §§ 1802(b), 1822(c).4 A “foreign power”

includes “a group engaged in international terrorism or activities in preparation

therefor.” Id. §§ 1801(a)(4), 1821(1). Foreign-intelligence information includes

information necessary to the national defense or security of the United States, or to

its ability to protect against an actual or potential attack, sabotage, international

terrorism, or clandestine intelligence activities by foreign powers or their agents.

Id. §§ 1801(e), 1821(1).

Applications for FISA orders and warrants are made ex parte to the FISC,

which consists of United States District Court judges designated by the Chief

Justice of the United States. 50 U.S.C. § 1803(a)(1). To obtain an order under

FISA authorizing electronic surveillance, physical searches, or both, the

application must meet certain statutory requirements. 50 U.S.C. §§ 1804, 1823.

Those requirements include establishing probable cause that the target is a foreign

power or an agent of a foreign power and that the facility or place subject to

surveillance is being used or is about to be used by a foreign power or its agents.

Id. § 1804(a)(3), 1805(a)(2)(A), (B); see also id. § 1823(a)(3)(B), (C) (for physical

searches, application must establish probable cause that the premises or property

4 The provisions of FISA that address electronic surveillance are found at 50

U.S.C. §§ 1801-1812; those that address physical searches are found at 50 U.S.C. §§ 1821-1829. These two sets of provisions are in many respects parallel and almost identical. The citations in this brief generally cite first to the relevant electronic surveillance provision, followed by a citation to the relevant physical search provision.


15

contains foreign intelligence information and that it is or is about to be owned,

used, possessed by, or is in transit to or from the target).

Under FISA, the government must minimize the acquisition and retention of

nonpublicly available information concerning U.S. persons and prohibit its

dissemination, consistent with the need to obtain, produce, and disseminate

foreign-intelligence information. 50 U.S.C. §§ 1801(h), 1805(c)(2)(A), 1821(4),

1824(c)(2)(A). Minimization procedures must be set forth in the application. Id.

§§ 1804(a)(4), 1823(a)(4).

FISA requires that applications for FISA collection must contain certain

certifications by a high-ranking Executive branch official. 50 U.S.C. §§

1804(a)(6), 1823(a)(6). The official must certify that the information sought is

foreign-intelligence information as described in 50 U.S.C. § 1801(e) that cannot be

reasonably obtained by normal investigative techniques. Id. § 1804(a)(6)(A), (C),

(D), and (E); see also id. § 1823(a)(6). The official must also certify that gathering

foreign-intelligence information is “a significant purpose” of the surveillance or

search. Id. §§ 1804(a)(6)(B), 1823(a)(6)(B).

To authorize collection, a FISC judge must find that (1) the application has

been made by a “Federal officer” and has been approved by the Attorney General,

see 50 U.S.C. § 1805(a)(1); (2) “there is probable cause to believe that . . . the

target of the electronic surveillance is a foreign power or an agent of a foreign


16

power,” and that “the facilities or places at which the electronic surveillance is

directed is being used or is about to be used, by a foreign power or an agent of a

foreign power,” see id. § 1805(a)(2); (3) the proposed minimization procedures

meet the requirements set forth in section 1801(h), id. § 1805(a)(3); and (4) “the

application . . . contains all statements and certifications required by section 1804,”

and, if the target is a United States person, the certifications are not clearly

erroneous, id. § 1805(a)(4) see also id. § 1824(a)(1)-(4).

If a FISC judge determines that a FISA application has met the statutory

requirements, and if the judge makes the necessary findings, the judge then issues

an ex parte order authorizing the surveillance or search. The order must identify

the target of the search, the location of the facility at which the surveillance or

search will be directed, the type of information sought, the means of conducting

the surveillance or the manner of conducting the search, the period of time during

which the surveillance or searches are approved, the authorized coverage of the

surveillance devices, and the applicable minimization procedures. See 50 U.S.C.

§§ 1805(c), 1824(c).

When the government intends to use information obtained from FISA-

authorized surveillance or searches against an “aggrieved person” in a criminal

proceeding, it must notify both the aggrieved person and the court in which the

information will be used of its intent. 50 U.S.C. § 1806(c). An “aggrieved person”


17

is defined as “the target of an electronic surveillance or any other person whose

communications or activities were subject to electronic surveillance,” id. §

1801(k), as well any person whose premises, property, information, or material

was the target of or subject to a physical search, id. § 1821(2). Upon receiving

notice, an aggrieved person against whom the government intends to use evidence

obtained or derived from FISA may move to suppress such evidence on the

grounds that the information was illegally acquired or that the surveillance was not

lawfully conducted. Id. § 1806(e). An aggrieved person may also move under

“any other statute or rule of the United States,” as appellant did here, to discover

the FISA materials. Id. § 1806(f).

The information set forth in FISA applications enjoys a presumption of

validity. “In considering challenges to FISA Court orders . . . the representations

and certifications submitted in support of an application for FISA surveillance

should be presumed valid by a reviewing court” absent a showing that the affiant

deliberately or recklessly included false information. El-Mezain, 664 F.3d at 568

(internal quotation marks and citation omitted); see also United States v. Abu-

Jihaad, 630 F.3d 102, 130 (2d Cir. 2010) (“FISA warrant applications are subject

to minimal scrutiny by the courts, both upon initial presentation and subsequent

challenge.”) (internal quotation marks and citation omitted), cert. denied, 131 S.

Ct. 3062 (2011).


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This Court reviews for abuse of discretion the district court’s denial of a

defendant’s request for disclosure of FISA materials. El-Mezain, 664 F.3d at 566.

This Court reviews de novo the district court’s determination of the legality of the

FISA orders, subject to the presumption of validity afforded to the representations

submitted in support of the applications. Id. at 568.

B. Neither FISA Nor Due Process Requires Disclosure Of The FISA Materials In This Case.

1. FISA provides that, where, as here, the Attorney General certifies that

“disclosure [of FISA materials] or an adversary hearing would harm the national

security of the United States,” a district court must “review in camera and ex parte

the application, order, and such other materials relating to the surveillance as may

be necessary to determine whether the surveillance of the aggrieved person was

lawfully authorized and conducted.” 50 U.S.C. § 1806(f). Although the reviewing

court has discretion to disclose portions of FISA materials, it may exercise that

discretion only if such disclosure is “necessary to make an accurate determination

of the legality of the surveillance,” id., or if denial of disclosure would amount to a

violation of due process, id. § 1806(g). See also El-Mezain, 664 F.3d at 566.

Accordingly, “[d]isclosure of FISA materials is the exception and ex parte, in

camera determination is the rule.” Id. at 567; see also id. at 566 (“[N]o court has

ever ordered that FISA materials be disclosed or that an adversarial hearing be

conducted to assist the court in determining the legality of FISA surveillance.”).


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The district court here conducted “a thorough in camera, ex parte review” of

the FISA materials at issue, R. 99 (ER 93), found those materials to be “well

organized and readily understood,” and concluded that it was able to make an

accurate determination of the legality of the surveillance and searches without

disclosure of the FISA materials to Hasan or his counsel, R. 101 (ER 95). Hasan

has provided no reason suggesting that the district court abused its discretion in

reaching that conclusion.

Hasan contends (Br. 13-15) that FISA’s in camera, ex parte review

procedures violate due process. That claim is foreclosed by this Court’s decision

in El-Mezain, which rejected the same due process claim that Hasan raises here.

466 F.3d at 567-68. The El-Mezain Court held that in camera, ex parte review of

FISA materials by a district court “adequately ensure[s] that the defendants’

statutory and constitutional rights [a]re not violated” and that the government has a

“substantial” countervailing interest “in maintaining the secrecy of the materials.”

Id. at 567. The Court also rejected the claim (which Hasan also raises here, see Br.

10) that the government’s interest is diminished where defense counsel possess

security clearances, reasoning that the government has a “legitimate interest” in

“ensur[ing] that sensitive security information is not unnecessarily disseminated to

anyone not involved in the surveillance operation in question,” regardless of

whether that person has the requisite security clearances. Id. at 568. Finally, as the


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El-Mezain Court noted, its holding that FISA’s in camera and ex parte procedures

are constitutional is consistent with decisions of numerous other courts. Id. at 567

(citing cases).5

As in El-Mezain, the district court’s thorough review of the FISA materials

here, together with this Court’s ability to conduct an in camera, ex parte review of

the same materials, provide sufficient safeguards of Hasan’s rights to satisfy

constitutional standards. Moreover, as the Attorney General has certified,

disclosure of the FISA materials at issue in this case, even to defense counsel with

security clearances, would damage the government’s national security interests.

Accordingly, the same circumstances are present here as in El-Mezain. Due

process does not require disclosure of the FISA materials, and the district court

properly denied Hasan’s motion to compel disclosure.

2. Hasan suggests (Br. 13) that due process requires disclosure of the

FISA materials in this case because the underlying court-martial is authorized to

consider the death penalty. But Hasan provides no authority supporting his

suggestion that due process forbids application of FISA’s in camera, ex parte

review procedures in a capital case. Moreover, there is no reason to apply different

due process standards to FISA claims in capital cases, because the exclusion of

5 Hasan faults (Br. 13) the district court for relying on cases from other

circuits in rejecting his due process claim, but the district court’s decision is entirely consistent with El-Mezain, this Court’s only published decision relating to FISA.


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unlawfully obtained evidence is a remedy that is not related to the reliability of the

evidence, the fairness of the trial, or the appropriateness of the sentence. See Stone

v. Powell, 428 U.S. 465, 490 (1976) (“A claim of illegal search and seizure under

the Fourth Amendment is crucially different from many other constitutional rights;

ordinarily the evidence seized can in no way have been rendered untrustworthy by

the means of its seizure.”); Kimmelman v. Morrison, 477 U.S. 365, 374 (1986)

(noting that protection against illegal search or seizure is “not a trial right,” and

contrasting that protection with other protections that assure the “fairness” and

“legitimacy” of the trial).

3. Hasan appears to argue (Br. 6, 9, 13, 15) that denial of his motion for

immediate disclosure of the FISA-obtained or -derived evidence that the

government intends to introduce violates his due process right to a fair trial.

However, Hasan’s claim regarding the timeliness of the government’s production

of evidence that it intends to introduce at trial is beyond the scope of the district

court’s order, which was limited to whether the underlying FISA materials and

FISA-obtained or -derived evidence must be disclosed for purposes of adjudicating

Hasan’s motion to suppress. The order therefore does not preclude Hasan from

moving in military court for timely discovery of the FISA-obtained or -derived

evidence that the government intends to introduce (as opposed to the underlying

applications and orders) to afford Hasan sufficient time to prepare his response to


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such evidence. That claim is accordingly not before this Court. In any event, it is

far from clear that the district court and this Court (rather than the military courts)

would have jurisdiction to consider it. In Hasan’s court-martial, the government

has complied and will continue to comply with its discovery obligations under

military law and the requirements of due process.

III. The District Court Properly Denied Hasan’s Motion To Suppress Because The FISA Collection Was Lawfully Authorized And Conducted.

A. Standard of Review

This Court reviews the district court’s denial of Hasan’s motion to suppress

de novo. El-Mezain, 664 F.3d at 568. As noted above, this Court should presume

the validity of the certifications and representations submitted in support of FISA

applications, absent any showing that those certifications and representations

include deliberately false statements or statements made with a reckless disregard

for the truth. Id. A district court’s finding that an affiant did not deliberately or

recklessly include false statements in a search warrant affidavit “cannot be

disturbed unless it is clearly erroneous.” United States v. Looney, 532 F.3d 392,

395 (5th Cir. 2008).


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B. The Applications Established Probable Cause And Otherwise Complied With FISA And The Constitution.

1. Although Hasan’s brief focuses overwhelmingly on the asserted

inadequacy of FISA’s procedures, Hasan also claims (Br. 7) that the district court

should have granted his motion to suppress. However, as the Government’s

Classified Memorandum6 and the classified record demonstrates, the applications,

affidavits, and orders at issue satisfied all applicable legal requirements. The

district court thoroughly reviewed that record and explicitly found that the

applications and certifications met FISA’s requirements, including that the

President authorized the Attorney General to approve applications for electronic

surveillance and physical searches under FISA, that each application was made by

a federal officer and approved by the Attorney General, that each application

established probable cause that the targets of the surveillance or searches were a

foreign power or agents of a foreign power, that no United States person was

determined to be an agent of a foreign power solely upon the basis of activities

protected by the First Amendment, that the places of surveillance or search were

being used, or were about to be used, by a foreign power or its agents, that each

application made pursuant to 50 U.S.C. § 1823 established probable cause to

6 The Government’s Classified Memorandum, which was submitted to the

district court and is part of the classified record available for this Court’s review, explains in detail, with references to the underlying documents, how the FISA applications and orders at issue established probable cause and otherwise complied with FISA’s requirements.


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believe that the premises or property to be searched contained foreign intelligence

information, that proper minimization procedures were incorporated into the

applications and implemented by the government, that there was no clear error in

the statements of the basis for the government’s certification that the information

sought was foreign intelligence information that could not reasonably be obtained

by normal investigative techniques, and that a significant purpose of the collection

was to obtain foreign intelligence information. R. 99-100 (ER 93-94). In sum,

because the record shows that FISA’s purpose and probable cause requirements

were satisfied, and because there is no error (much less clear error) in the required

certifications by executive officials, the district court’s conclusion that the FISA

collection was lawfully authorized and lawfully conducted was correct. The court

therefore properly denied Hasan’s motion to suppress on that basis. R. 103, 107

(ER 97, 101).

In the alternative, as the district court found, the FISA-derived evidence here

would be admissible under the “good faith” exception to the exclusionary rule even

if the FISA collection were not lawfully authorized. R. 103-04 (ER 97-98). Under

that exception, evidence should not be suppressed where, as here, the issuing court

did not rely on a deliberately or recklessly false affidavit and the affidavit was not

so deficient as to make reliance on it unreasonable. See United States v. Leon, 468

U.S. 897, 914-15 (1984); United States v. Ning Wen, 477 F.3d 896, 897-98 (7th


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Cir. 2007) (holding that good-faith exception applies to Fourth Amendment

challenge to FISA orders).

2. Hasan also contends (Br. 10, 14) that the district court should have

held an adversarial hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

In Franks, the Supreme Court held that, for a defendant to obtain a hearing to

challenge the inclusion of false information in an affidavit supporting a search

warrant, he must make a substantial preliminary showing that the affiant

deliberately or recklessly included the false information and that, if the alleged

false information were excluded, the remaining information would be insufficient

to support a finding of probable cause. Id. at 155-56, 171-72; see also United

States v. Brown, 298 F.3d 392, 395 (5th Cir. 2002). As the district court found,

Hasan failed to make that showing. R. 105 (ER 99). Moreover, because the

district court recognized that Hasan lacked access to the FISA materials, the court

conducted its own independent review and found “no indication of any false

statements in the FISA applications.” R. 100 (ER 94). Accordingly, the court

properly denied Hasan’s request for a Franks hearing.


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CONCLUSION

For the foregoing reasons, the judgment of the district court should be

affirmed.

Respectfully Submitted,

LISA O. MONACO Assistant Attorney General J. BRADFORD WIEGMANN Deputy Assistant Attorney General ROBERT L. PITMAN United States Attorney Western District of Texas GREGORY S. GLOFF Assistant United States Attorney Western District of Texas

STEVEN M. DUNNE Chief, Appellate Unit /s/ Joseph F. Palmer JOSEPH F. PALMER Attorney, National Security Division United States Department of Justice 950 Pennsylvania Ave. NW, Rm. 6500 Washington, DC 20530 Tel: 202.353.9402/Fax: 202.514.8053 [email protected]


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CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)

I, Joseph Palmer, hereby certify that the foregoing Brief for the United

States complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B),

inasmuch as the brief contains 6,675 words. This certification is based on the word

count of the word-processing system used in preparing the government’s brief:

Microsoft Word 2010.

/s/ Joseph Palmer JOSEPH PALMER Attorney, National Security Division U.S. Department of Justice 950 Pennsylvania Ave. NW, Rm. 6500 Washington, DC 20530


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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Brief with the Clerk

of the Court for the United States Court of Appeals for the Fifth Circuit by using

the appellate CM/ECF system on January 16, 2013.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

/s/ Joseph Palmer JOSEPH PALMER Attorney, National Security Division U.S. Department of Justice 950 Pennsylvania Ave., NW Rm. 6500 Washington, DC 20530


No. 12-50841 IN THE UNITED STATES COURT OF APPEALS FOR … · NIDAL HASAN, Defendant-Appellant....

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