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UNITED STATES v. MEGAHEY

December 1, 1982

UNITED STATES OF AMERICA,
v.
GABRIEL MEGAHEY et alia, Defendants



The opinion of the court was delivered by: SIFTON

MEMORANDUM AND ORDER

 SIFTON, District Judge.

 By a superseding indictment filed on August 18, 1982, defendants Gabriel Megahey, Andrew Duggan, Colm Meehan, Eamon Meehan, and seven defendants who have not been apprehended are accused of conspiring to smuggle arms, explosives, and equipment to the Provisional Irish Republican Army; exporting firearms and ammunition without an export license; transporting and shipping blasting caps and other firearms in interstate and foreign commerce; and other related firearms offenses. Defendants Colm Meehan and Eamon Meehan are additionally accused of being illegal aliens and receiving, possessing, and transporting firearms in interstate commerce. Defendants Gabriel Megahey, Colm Meehan, and Eamon Meehan are all said to be aliens, whereas defendant Duggan is said to be a United States citizen. All defendants who have appeared have entered pleas of not guilty to all charges against them.

 This matter is currently before the Court on (1) defendants' motions to suppress the fruits of electronic surveillance said to have been conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA" or the "Act"), 50 U.S.C. §§ 1801 et seq., which the Government intends to introduce at trial, and (2) on the Government's application to have this Court determine the legality of the electronic surveillance in an ex parte, in camera proceeding pursuant to 50 U.S.C. § 1806(f).

 For the reasons set forth below, the defendants' motions are denied, and the surveillance is determined to be valid. What follows sets forth the essential findings on which these determinations are based, as required by Rule 12(e) of the Federal Rules of Criminal Procedure. The findings derive from the undisputed assertions of the papers filed as part of the public record in this matter as well as the ex parte, in camera submission made by the Government pursuant to 50 U.S.C. § 1806(f).

 THE FISA SURVEILLANCE

 On February 5, 1982, pursuant to a request made by the Government in the course of a foreign counter-terrorist investigation being conducted by the FBI, a judge of the United States Foreign Intelligence Surveillance Court ("FISC") issued an order authorizing electronic surveillance on the home telephone of defendant Megahey. Electronic surveillance pursuant to that order began on February 10, 1982. An order authorizing the continuation of the surveillance was entered by FISC on May 6, 1982. The surveillance continued thereafter until defendant Megahey was arrested on June 21, 1982.

 On July 27, 1982, pursuant to FISA, 50 U.S.C. § 1806(b), the Acting Attorney General authorized the use of all tape recordings obtained from the surveillance and any information derived therefrom relating to the criminal activity of the defendants at their trial on the superceding indictment described above. Pursuant to letters dated July 28 and August 2, 1982, defendants and this Court were notified, as required by 50 U.S.C. § 1806(c), that the Government intends to introduce information from the FISA surveillance in evidence at the trial.

 Defendant Megahey is the only defendant at whom the electronic surveillance was directed. Other defendants, however, were overheard incidentally during the Megahey surveillance. In August and September 1982, counsel for all defendants were provided by the Government with copies of the tape recordings, transcripts, surveillance logs, and pen register tapes of all telephone conversations from calls intercepted during the surveillance that are deemed by the Government to be relevant to the prosecution. Thereafter, under a protective order signed by counsel for all four defendants and entered on October 6, 1982, the Government was ordered to turn over to counsel for the defendants the balance of the tape recordings made pursuant to the electronic surveillance and related documents requested by defendants, such as pen register tapes and surveillance logs, under restrictive conditions designed to protect the identities of and information concerning any United States person as defined in 50 U.S.C. § 1801(i).

 THE FOREIGN INTELLIGENCE SURVEILLANCE ACT

 The surveillance at issue was conducted pursuant to FISA, which was enacted into law on October 25, 1978. Pub. L. 95-511, 92 Stat. 1783 (1978).

 The Act is designed to establish a procedure under which the Attorney General can obtain a judicial order authorizing electronic surveillance in the United States to acquire information for foreign intelligence purposes. S. Rep. No. 95-604, 95th Cong., 2d Sess., reprinted in 4 U.S. Code Cong. & Admin. News 3904, 3906 (1978) (hereinafter "Legislative History"). The Act authorizes the Chief Justice of the United States to designate seven district court judges, who, sitting as members of the Foreign Intelligence Surveillance Court of the United States, may hear applications for and grant orders approving electronic surveillance for foreign intelligence purposes. 50 U.S.C. § 1803(a). The Act makes provision for appellate review, by a specially created court of review and, ultimately, by the Supreme Court, of orders denying applications for surveillance. 50 U.S.C. § 1803(b).

 Under the Act, a judge may issue an order authorizing electronic surveillance within the United States only if he finds that (1) the President has authorized the Attorney General to approve applications for electronic surveillance pursuant to FISA, *fn1" (2) the application has been made by a federal officer and approved by the Attorney General, (3) on the basis of the facts submitted by the applicant, there is probable cause to believe that (a) the target of the electronic surveillance is a "foreign power" *fn2" or an "agent of a foreign power," *fn3" provided that no "United States person" *fn4" may be considered a "foreign power" solely on the basis of activities protected by the first amendment to the U.S. Constitution and (b) each of 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," (4) the proposed minimization procedures meet the requirements of the Act, *fn5" and (5) the filed application contains all statements and certifications required by the Act and that, if the target of the surveillance is a "United States person," the certification or certifications are not "clearly erroneous." *fn6" The order may approve electronic surveillance for no longer than 90 days, but extensions of up to 90 days may be granted on application, provided the same findings are made as are required for the original order. In certain instances involving certain "foreign powers," electronic surveillance may be approved for up to one year. In the event an emergency arises and resort to a court is impossible, the Attorney General is authorized to approve brief electronic surveillance without a court order. 50 U.S.C. §§ 1802(a), 1805(e).

 Under the Act, information acquired from a FISA surveillance concerning any "United States person" may be used and disclosed without the consent of the "United States person" only in accordance with the minimization procedures noted above. No information acquired from a FISA electronic surveillance may be used or disclosed except for lawful purposes. 50 U.S.C. § 1806(a). Furthermore, no information acquired pursuant to FISA may be disclosed for law enforcement purposes "unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General." 50 U.S.C. § 1806(b).

 FISA is the first statute enacted to regulate the use of electronic surveillance within the United States for foreign intelligence purposes. Legislative History at 3908. As the Senate report on FISA states regarding the purpose of its enactment:

 
"The need for . . . statutory safeguards has become apparent in recent years. The legislation is in large measure a response to the revelations that warrantless electronic surveillance in the name of national security has been seriously abused. These abuses were initially illuminated in 1973 during the investigation of the Watergate break-in. Since that time, however, the Senate Select Committee to Study Government Operations with Respect to Intelligence Activities, chaired by Senator Church, . . . has concluded that every President since Franklin D. Roosevelt asserted the authority to authorize warrantless electronic surveillance and exercised that authority."

 Id. The Senate report notes the infringement of and chilling effect on the constitutional rights of surveillance targets and those with whom the targets communicated caused by the previously unregulated nature of national security surveillance. Thus, FISA was "designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it," while providing for the orderly continuation of "the legitimate use of electronic surveillance to obtain foreign intelligence information." Legislative History at 3910. As the Senate report notes:

 
"Striking a sound balance between the need for such surveillance and the protection of civil liberties lies at the heart of [the Act] . . . . [It] is designed to permit the Government to gather necessary foreign intelligence information by means of electronic surveillance but under limitations and according to procedural guidelines which will better safeguard the rights of individuals."

 Id.

 THE INSTANT MOTIONS

 Defendants have moved to suppress the fruits of the FISA surveillance on a wide variety of grounds. First, they seek suppression on the ground that the FISA surveillance was in violation of their fourth amendment rights against unreasonable searches and seizures. Second, defendants argue that employment of FISA in this case was for the purpose of gathering evidence of a crime and that use of the fruits of the FISA surveillance would violate their fifth amendment due process rights. Third, they argue that the fruits of the FISA surveillance should be suppressed unless the Court disregards § 1806(f) of the Act and permits a full adversarial evidentiary hearing on the propriety of the surveillance. Fourth, defendants argue that the fruits of the FISA surveillance should be suppressed on the ground that there was an insufficient basis for that surveillance under the Act and that the Government impermissibly relied on first amendment activities of the defendants in obtaining authorization for that surveillance. Fifth, they submit that the fruits of the FISA surveillance must be suppressed due to the Government's failure to comply with the minimization requirements of the FISA orders. Sixth, defendants argue that FISA is invalid under the separation of powers and political question doctrines of the U.S. Constitution. Seventh, they assert that the establishment of FISC under FISA is unconstitutional under Article III of the U.S. Constitution. Eighth, defendants argue that FISA unconstitutionally denies due process to aliens.

 The FISA establishes unique procedures for judicial consideration of motions to suppress the fruits of FISA surveillance in proceedings in which the Government seeks to introduce evidence obtained or derived from an FISA surveillance against a criminal defendant. 50 U.S.C. § 1806. These procedures are the exclusive procedures to be followed when a motion to suppress is made. 50 U.S.C. § 1806(f). See Legislative History at 3958-59. Section 1806(f) provides in pertinent part that, when motions to suppress, such as those filed by defendants here, are made, the court shall,

 
"notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, 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). *fn7" Subsection (f) concludes by noting:

 
"In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance."

 Id. The Acting Attorney General of the United States has filed an affidavit under oath with this Court asserting that it would harm the national security of the United States to disclose or conduct an adversary hearing with respect to documents of the United States Foreign Intelligence Surveillance Court that have been submitted. Pursuant to that affidavit, as noted above, the United States Attorney has petitioned this Court to determine the legality of the FISA surveillance in an ex parte, in camera proceeding as contemplated by 50 U.S.C. § 1806(f).

 1. Fourth Amendment Issues

 Defendants seek to suppress the fruits of the FISA surveillance on the ground that the surveillance was in violation of their fourth amendment rights against unreasonable searches and seizures. In essence, defendants argue that the FISA surveillance violated defendants' fourth amendment rights since it was conducted without a warrant issued upon a finding of probable cause and that there is no justifiable "national security" exception to the warrant requirement; and second, that, even if there is such an exception, that exception does not apply here.

 There is no universal requirement of a warrant before a search can be conducted under the fourth amendment. Courts have permitted warrantless searches and seizures in a variety of contexts. See Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971) (plain view); Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969) (search incident to arrest); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1967) (stop and frisk); United States v. Mississippi Power & Light Co., 638 F.2d 899 (5th Cir. 1981), cert. denied, 454 U.S. 892, 102 S. Ct. 387, 70 L. Ed. 2d 206 (1982) (administrative search); United States v. Esquer-Rivera, 542 F.2d 521 (9th Cir. 1976) (fixed checkpoint search); United States v. Clark, 498 F.2d 535 (2d Cir. 1974) (airport search); United States v. Bell, 457 F.2d 1231 (5th Cir. 1972) (courtroom search).

 A "national security" exception to the warrant requirement under the fourth amendment has also achieved recognition from the courts. While the Supreme Court has never decided this issue directly, it formulated an analytical approach to the issue in United States v. United States District Court, 407 U.S. 297, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972) (hereinafter the " Keith " case). Keith involved a warrantless wiretap surveillance approved by the Attorney General for the purpose of "gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government." 407 U.S. at 300. The Government argued that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The Court held that the fourth amendment requires prior judicial approval for the type of domestic security surveillance involved, reasoning that fourth amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch, 407 U.S. at 316-17, and that resort to appropriate warrant procedures would not frustrate the purposes of domestic security searches. Id. at 321. The Court emphasized, however, that it was addressing only the domestic aspect of national security and that it was expressing no opinion concerning "the issues which may be involved with respect to activities of foreign powers or their agents." Id. at 321-22. As noted by Judge McLaughlin in United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982), while the court did not address the constitutionality of warrantless electronic surveillance in cases involving a foreign power or its agents,

 
"it recognized, however, that there were distinctions between Title III criminal surveillances [18 U.S.C. §§ 2510 et seq. ] and those involving the national security, and urged Congress to delineate an appropriate standard for issuing warrants where national security was at stake."

 540 F. Supp. at 1309, citing Keith, 407 U.S. at 322-33. Indeed, the Supreme Court stated:

 
"Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection."

 407 U.S. at 322-23. Congress was aware of and considered this aspect of the Keith decision when it enacted FISA. Legislative History at 3914-17, 3980-85.

 Several courts of appeals have ruled that the fourth amendment does not require a warrant for electronic surveillance involving foreign intelligence and foreign powers. In United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 960, 39 L. Ed. 2d 575, 94 S. Ct. 1490 (1974), the court upheld the legality of a surveillance in which the defendant was incidentally overheard via a warrantless wiretap authorized for foreign intelligence purposes. The court held that the President may constitutionally authorize warrantless wiretaps to gather foreign intelligence on the basis of his duty to act for the United States in foreign affairs and his inherent power to protect the national security. 484 F.2d at 426. In United States v. Butenko, 494 F.2d 593 (3d Cir.) (en banc), cert. denied sub nom. Ivanov v. United States, 419 U.S. 881, 42 L. Ed. 2d 121, 95 S. Ct. 147 (1974), the court similarly held that warrantless electronic surveillance is permissible so long as its primary purpose was to obtain foreign intelligence information. Yet, as Congress noted in considering the legislation that was eventually to be enacted as FISA:

 
"Neither Brown nor Butenko provide[s] a systematic analysis of the problem within the framework indicated by the Supreme Court decision in Keith, i.e., whether the requirement of a warrant would unduly frustrate the exercise of the President's responsibility in the area of national security. The court's opinion in Brown simply confirmed the President's inherent power to authorize foreign intelligence collection through, among other things, electronic surveillance without a warrant. The Butenko opinion offers a slightly more extensive analysis of the problem."

 Legislative History at 3917 n.26. *fn8"

 In United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144, 102 S. Ct. 1004, 71 L. Ed. 2d 296 (1982), the court held that the executive need not always obtain a warrant for foreign intelligence surveillance and in so doing, directly tracked the analytical approach formulated by the Supreme Court in Keith. Following the two prong test posited in Keith,9 the Court of Appeals recognized a foreign intelligence exception to the warrant requirement, stating:

 
"For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, 'unduly frustrate' the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require utmost stealth, speed, and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations . . . . More importantly, the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance . . . . Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs . . . . In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance."

 629 F.2d at 913-14 (citations omitted). *fn10"

 While recognizing a foreign intelligence exception to the warrant requirement, the Truong court limited the scope of that exception in two important respects that are ...


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