On the Admissibility of FISA-Derived Evidence in Criminal Prosecutions

By Robert Chesney
Wednesday, November 24, 2010, 10:10 AM

United States v. Kashmiri, a recent decision by a district judge in Illinois, provides a nice illustration of the process by which defendants in criminal cases may object to the admission of evidence derived from Foreign Intelligence Surveillance Act (FISA) warrants, and the significant obstacles such objections face.  Unfortunately I do not have a pdf of the opinion to which I can link, but I can at least summarize the key points. [Update: Steve Aftergood at Secrecy News has now posted the full opinion here - thanks Steve!]

Tahawwur Hussain Rana has been indicted (along with other defendants, including the more well-known David Headley) on several counts involving the provision of material support to Lashkar e-Taiba, to the Mumbai attacks, and to a plot to carry out an attack in Denmark.  Among other pre-trial maneuvers, Rana moved to suppress FISA-derived evidence.  In an opinion two weeks ago, Judge Leinenweber denied these motions, along the way touching upon several of the key points that may be of interest to those who are curious about how the fruits of FISA surveillance can be used as evidence in a criminal prosecution.  Note that there is nothing novel about the holdings described below; on each point, the opinion in Kashmiri is very much a reflection of the norm in these cases.

First, though FISA in theory permits a judge to give the defendant access to the underlying affidavit(s) and other materials supporing the original FISA application, this authority is never exercised in practice.  Suppression motions instead always are resolved on an in camera, ex parte basis.  The judge explained:

 In 2003, the Seventh Circuit wrote that it could not locate one case in which a court conducted a review of FISA materials other than through an in camera and ex parte process. Grand Jury Proceedings, 347 F.3d at 203. The appellant in the 2003 case argued that his was the one-in-a-million case in which such an exception should occur, and that the court should allow him to review the materials. Id. The court disagreed. Id. Subsequently, since 2003, as Defendant acknowledges, this one-in-a-million case has yet to occur. A court has never permitted defense counsel to review FISA materials. Likewise, in this case, because disclosure of the materials is unnecessary for the Court to determine the legality of the collection, Defendant's Motion for Disclosure is denied. See 50 U.S.C. § 1806(f).

Second, the court joined a chorus of judges concluding that the Fourth Amendment is not violated by a system in which prosecutors later make use of FISA-derived evidence so long as foreign intelligence-collection was a "significant purpose" of the FISA application at the time.  The court expressly disagreed with the vacated Mayfield decision (in which a district judge in Oregon had held that post-PATRIOT Act FISA violates the 4th Amendment), describing it as an outlier.

Third, the court agreed that a defendant in theory could obtain a Franks hearing to test, post hoc, the veracity of the statements in the affidavit(s) supporting a FISA application, but concluded that Rana had not made the case that such a hearing was warranted in this instance.  More to the point, the court made clear that it will be the rare defendant who will get such a hearing:

 Nevertheless, to challenge the veracity of the FISA application, Defendant must offer substantial proof that the FISC relied on an intentional or reckless misrepresentation by the government to grant the FISA order. The quest to satisfy the Franks requirements might feel like a wild-goose chase, as Defendant lacks access to the materials that would provide this proof. This perceived practical impossibility to obtain a hearing, however, does not constitute a legal impossibility. If Defendant obtains substantial proof that the FISC relied upon an intentional or recklessly false statement to approve the FISA order, he could obtain a hearing. In addition, the Court has already undertaken a process akin to a Franks hearing through its ex parte, in camera review of the FISA materials. 50 U.S.C. § 1806(f). Through this review, the Court finds that Defendant is not entitled to a Franks hearing. Therefore, his request is denied.