FISA

Section 702-Based Relief Denied in United States v. Mohamud

By Jane Chong
Thursday, June 26, 2014, 1:28 PM
Mohamed Osman Mohamud, a Somali-born American citizen, was convicted in January of last year of attempting to detonate a weapon of mass destruction after he tried to set off what he thought was a car bomb in a crowded Portland square. The bomb was in fact a fake supplied to the 19-year-old by federal agents as part of a sting operation.  Since the verdict, the defendant has sought to undo his conviction, questioning both the government's compliance with provisions of the Foreign Intelligence Surveillance Act (FISA), and those provisions' very legality. This week, a federal court in Oregon rebuffed him; the following post summarizes the most recent developments in United States v. Mohamud, which upheld consequential parts of FISA against legal challenge.
On November 19, 2013, a month before Mohamud's sentencing hearing, the government filed a Supplemental FISA Notification, informing the court that the government had offered into evidence, or otherwise used or disclosed during the proceedings, information collected under FISA section 702---itself a part of Title VII of the statute.  At Mohamud's first appearance prior to trial, the government had notified him that it intended to make use of information derived from surveillance conducted under other provisions of FISA.  But afterwards, prosecutors determined "that information obtained or derived from Title I FISA collection may, in particular cases, also be 'derived from' prior Title VII FISA collection." Given this possible overlap, and after a review of Mohamud's case, the prosecution therefore made its supplemental advisory regarding section 702.  In light of that revelation, and in anticipation of the defendants' FISA-related motions, Judge Garr King of the U.S. District Court for the District of Oregon canceled Mohamud's sentencing.  The defendant then sought discovery of FISA-related material.
On March 19, 2014, Judge King shut that effort down, by denying Mohamud's motions for full discovery and to compel immediate production. And on Tuesday Judge King did the same with Mohamud's broader attempt to attack the section 702 surveillance, denying three motions in a 56-page decision and effectively closing out the defendant's post-conviction bid for FISA-based relief.  (Judge King also filed a classified opinion to explain some of his reasoning.)
(1) Motion for Vacation of Conviction and Alternative Remedies of Dismissal of the Indictment, Suppression of Evidence, and New Trial for the Government’s Violation of the Pretrial Notice Statute
In his first motion, Mohamud argued that the government violated 50 U.S.C. § 1881e(a), by failing to give notice of section 702 surveillance in its original pretrial FISA notification; and that separation-of-powers principles required dismissal of the indictment or a new trial after suppression of evidence.
Judge King agrees with Mohamud that the court in principle can dismiss an indictment under the court's "inherent supervisory powers and for violations of the discovery obligations under the Constitution and federal rules."  But Judge King declines to do so because he determines that, here, dismissal is not necessary. FISA instead provides for suppression, and a suppression and a new trial---if called for---would put the defendant in the same position he would have been in, had the government notified him initially of the evidence obtained through section 702 surveillance. Moreover, the court notes that the government provided the Supplemental FISA Notification of its own accord, and as a result of a change in its legal opinion about the relationship between surveillance conducted pursuant to various branches of FISA---rather than after prodding by the court or the defendant. Judge King takes this to represent "strong evidence of the lack of prosecutorial misconduct."
(2) Second Motion for a New Trial
Mohamud argued that the withheld section 702 evidence may have affected his ability to present his entrapment defense at trial. Judge King rejects this argument, stating:

[T]he fundamental problem with defendant’s argument is that there is no new evidence. A surveillance is not evidence–it produces evidence. Even with an entrapment defense, the way in which the government was able to tailor the sting operation is not relevant to entrapment. What is relevant to entrapment are the actual contacts between government agents and the defendant. Those contacts were presented in detail to the jury, including hours of video and audio recordings.

To support his request for a new trial, the defendant also argued that the defense might have been able to use the withheld evidence to impeach the government witnesses' characterizations of the investigation. Judge King rejects this argument too, this time on the grounds that impeachment evidence is not enough to support a request for a new trial, except where such evidence would gut the case presented.
(3) Alternative Motion for Suppression of Evidence and a New Trial Based on the Government’s Introduction of Evidence at Trial and Other Uses of Information Derived from Unlawful Electronic Surveillance
Judge King devotes most of his opinion to analyzing the various claims underlying Mohamad's third motion.  In doing so he relies heavily on In re Directives [Redacted] Pursuant to Section 105B of FISA, 551 F.3d 1004, 1016 (FISA Ct. Rev. 2008) to shape his legal analysis.
Mohamud argued, as a threshold matter, that section 702 violates separation of powers two respects---both because the statute reduces the role of the judge to consulting with the Executive with no case or controversy involving an adversary, and because the FISC has a role in designing proposals for section 702 surveillance rather than approving or disproving such request. Judge King disagrees with the defendant's characterization of FISC, finding instead that (1) the court's review of section 702 surveillance applications "is as central to the mission of the judiciary as the review of search warrants and wiretap applications," and (2) FISC opinions are not advisory, insofar as "electronic communication service providers must follow directives to acquire communications or challenge the directive before the FISC."
Mohamud also argued that section 702 surveillance is vague and overbroad, and therefore chills Americans' exercise of their First Amendment rights. Judge King, however, determines that the analysis of section 702's constitutionality is properly conducted under the Fourth Amendment rather than the First Amendment. Treating Mohamud's challenge as an "as-applied" Fourth Amendment challenge, Judge King finds that Section 702 does not trigger the Warrant Clause, falls with the foreign intelligence exception, and is reasonable.
More specifically, Mohamud argued that section 702 violates the Fourth Amendment because it permits widespread and warrantless capture and use of the communications of American citizens. The court rejects this argument, finding that section 702 surveillances does not violate the Fourth Amendment where an American is not targeted for surveillance but rather his communications are incidentally collected during Section 702 surveillance targeted at non-U.S. persons outside the country. Moreover, Judge King agrees with the government that even if section 702 triggered the Warrant Clause, surveillance conducted under the provision falls within the foreign intelligence exception to the warrant requirement.
And lastly with respect to Mohamud's challenge to the constitutionality of section 702, the government search under the foreign intelligence exception was "reasonable." In In re Directives, the FISC held that  even where the foreign intelligence exception applies, the government action that intrudes on individual privacy interests must meet the Fourth Amendment reasonableness requirement. Judge King applies a totality-of-the-circumstances analysis to determine that the search under Section 702 here is reasonable. Mohamud contended that section 702 is presumptively unreasonable because it does not require a warrant and argues that the protections provided under the Warrant Clause are missing from section 702 surveillance. Judge King compares the warrant protections enumerated by Mohamud to section 702 and concludes that section 702 searches are reasonable, given section 702's prohibition on targeting U.S. persons, the FISC's approval of section 702 targeting and minimization procedures, and FAA oversight provisions requiring the Attorney General and DNI to regularly report compliance to the FISC and congressional committees.
In determining whether section 702 surveillance is reasonable, Judge King pays special attention to what he describes as the defendant's "most persuasive argument." That is, that even if acquisition of information under section 702 is itself lawful, subsequent querying of that information is a search requiring a warrant under the Fourth Amendment. But Judge King concludes that subsequent querying, even using U.S. person identifiers, is not separate search and does not render section 702 surveillance unreasonable under the Fourth Amendment. In so ruling, Judge King notes that "just because a practice might better protect Americans’ privacy rights does not mean the Fourth Amendment requires the practice" and agrees with the government's contention that it must review the information it collects to determine whether to retain or disseminate it under the minimization procedures.
After addressing the constitutional issues, Judge King makes short work of the defendant's remaining contentions:
(1) With respect to the defendant's concerns as to whether the government's section 702 surveillance exceeded the FISC authorizations, Judge King notes that he conducted a careful de novo ex parte review of the section 702 applications and concluded that the government complied with all certification and targeting and minimization procedures.
(2) Judge King rejects Mohamad's concerns about the possibility that his telephone metadata has been unconstitutionally collected for reasons stated in his accompanying classified opinion.
(3) As to the government's alternative argument, claiming the good faith exception to the exclusionary rule would apply even if the court found section 702 unconstitutional, Judge King agrees, because the section 702 surveillance was based on a statute duly enacted by Congress and certification approved by the FISC, and excluding the evidence would have no effect in deterring unconstitutional actions by law enforcement.
(4) Judge King rejects Mohamud's request for a Franks hearing to challenge the validity of the representations that the government made to the FISC to obtain the FISA warrants in this case. In essence, the court agrees that Mohamud can only speculate about the government's false statements or misrepresentations and agrees with the government that the government's lack of candor in other federal cases involving national security does not establish that errors were made in this case, such that the defendant is entitled to a Franks hearing without making the required substantial preliminary showing of misrepresentations.
(5) Judge King denies the defendant's renewed motion for discovery. The court notes that FISA allows the aggrieved party to receive discovery "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance." The court rejects Mohamud's request for broad construction of the word "necessary," citing the Seventh Circuit's recent reversal of the only district court decision to grant a defendant's motion for disclosure of FISA materials to defense counsel (United States v. Daoud, 2014 WL 2696734).