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United States v. Kashmiri

November 10, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ILYAS KASHMIRI, ET AL., (TAHAWWUR HUSSAIN RANA) DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

The November 2008 terrorist attacks in Mumbai, India, by Lashkar e Tayyiba, which targeted hotels, restaurants, train stations, and other public locations in the city, took the lives of more than 160 people, including six United States nationals. The United States Secretary of State has designated the Pakistan-based Lashkar, which has a primary objective to separate portions of the States of Jammu and Kashmir from India, as a foreign terrorist organization under Section 219 of the Immigration and Nationality Act. See 8 U.S.C. § 1189 (2006).

On October 18, 2009, the United States Government (the "Government") arrested Defendant Tahawwur Hussain Rana (the "Defendant"). He allegedly owned the immigration services business First World Immigration Services, which was based out of Chicago and also had offices in New York and Toronto. The Pakistan-born Canadian citizen, who primarily lives in Chicago, has been charged with three counts. The first count is for conspiring with others to provide material support to the Mumbai attacks. Second, the government has charged Rana with providing material support to an allegedly planned terrorist attack in Denmark. This planned attack targeted the facilities of a Danish newspaper and at least two of its employees, in response to a series of cartoons published in September 2005 that depicted the Muslim prophet Mohammed. Third, Defendant has been charged with providing material support to Lashkar. All three counts are brought pursuant to 18 U.S.C. § 2339(A) for providing material support to terrorists.

On October 18, 2009, the United States Attorney General filed notice indicating that in its case against Defendant it intended to use evidence obtained through both physical searches and electronic surveillance pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1801 et seq. On May 10, 2010, Defendant moved, under FISA, the due process provisions of the Fifth Amendment, the assistance of counsel provision of the Sixth Amendment, and Brady v. Maryland, 372 U.S. 83 (1963), that the Court order the Government to provide Defendant with all FISA applications, orders, and related documents where Defendant has been a target of electronic surveillance or a physical search. On August 27, 2010, Defendant moved, pursuant to the Fourth and Fifth Amendments to the Constitution, and 50 U.S.C. § 1806(e), to suppress FISA electronic surveillance evidence, as well as to request a Franks hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The Government subsequently indicated that it would not use FISA evidence obtained by physical search in its case, and on September 22, 2010, the Court granted Defendant's Motion to Withdraw its motion to suppress evidence obtained by physical search. The Court addresses the still pending motions in this Opinion.

II. REVIEW STANDARD FOR FISA MATERIALS

As later described in more detail, specific procedures exist for a district court to conduct an in camera, ex parte review of FISA material when it considers a motion to disclose or a motion to suppress evidence. See 50 U.S.C. § 1806(f). The court reviews FISA electronic surveillance materials in the same manner as the Foreign Intelligence Surveillance Court ("FISC") reviews the materials, in that it does not second-guess the Executive Branch's certification that the surveillance has a foreign intelligence objective. In re Grand Jury Proceedings of the Special April 2002 Grand Jury, 347 F.3d 197, 204--05 (7th Cir. 2003). The court conducts a de novo review of the FISA materials to determine if the electronic surveillance authorization was based upon appropriate probable cause. United States v. Hammond, 381 F.3d 316, 332 (4th Cir. 2004), vacated on other grounds, 543 U.S. 1097 (2005).

III. ANALYSIS

A. Motion for Disclosure of FISA Materials

Under 50 U.S.C. § 1806(e), Defendant has standing to move to suppress evidence obtained through electronic surveillance under FISA on the grounds that it was unlawfully obtained or not made in conformity with the FISA order of authorization or approval. This provision also gives standing to an "aggrieved person" against whom FISA evidence has been obtained or derived to move to disclose this evidence. See, United States v. Warsame, 547 F.Supp.2d 982, 986 (D. Minn. 2008).

Defendant requests disclosure of FISA materials to assess whether to move for suppression of any evidence or information obtained under FISA. As the Second Circuit has explained, the procedure the district court follows in such a situation is an ex parte and in camera review:

Section 1806(f) of FISA provides for in camera, ex parte review of the documents where the Attorney General has filed an affidavit stating that disclosure of the FISA applications and orders would harm the national security of the United States. The judge has the discretion to disclose portions of the documents, under appropriate protective procedures, only if he decides that such disclosure is "necessary to make an accurate determination of the legality of the surveillance." 50 U.S.C. § 1806(f). Such a need might arise if the judge's initial review revealed potential irregularities such as "possible misrepresentation of fact, vague identification of the persons to be surveilled or surveillance records which include[] a significant amount of nonforeign intelligence information, calling into question compliance with the minimization standards contained in the order." Senate Report 95-604, at 58, reprinted in 1978 U.S. Code Cong. & Ad. News 3904, 3960. In general, however, "ex parte, in camera determination is to be the rule."

United States v. Duggan, 743 F.2d 59, 78 (2d Cir. 1984).

If disclosure of the FISA materials is not necessary for the district court to make an accurate determination of the legality the collection, disclosure may not be ordered. See 50 U.S.C. ยง 1806(f). In reviewing a FISA application, a FISA judge, whose orders the district court must review, must (1) find probable cause to believe that the target of the requested surveillance is an agent of a foreign power; (2) find that the application is complete and in proper form; and (3) when the target is a United States person, find that the certifications are ...


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