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U.S. v. THOMSON

October 24, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALAN THOMSON, DEFENDANT.



The opinion of the court was delivered by: Arcara, District Judge.

DECISION AND ORDER

INTRODUCTION

Defendant, Alan Thomson, is charged by indictment with directing a structured banking transaction in violation of 31 U.S.C. § 5322(a), 5324(3), and 18 U.S.C. § 2. During pretrial discovery, the defendant and the Court were notified by the government that it had in its possession certain records and summaries of conversations involving the defendant that were obtained through electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA"). The defendant has moved for disclosure of the FISA material under sections 106(f) and 106(g) of the FISA, 50 U.S.C. § 1806(f)-(g), and Fed.R.Crim.P. 16.

The government has asserted, by affidavit, that none of the FISA material at issue contains either relevant or exculpatory information or material regarding the offense charged by the indictment. Further, the government asserts that it does not intend to use, in this case, any information obtained or derived from any electronic surveillance conducted pursuant to FISA.

Nevertheless, the defendant asserts that he is entitled to disclosure of the FISA material. His argument is based on three grounds. First, the defendant argues that disclosure of the FISA material, or an adversary hearing, is necessary under section 106(f) of FISA, 50 U.S.C. § 1806(f), in order for the Court to make an accurate determination of the legality of the electronic surveillance at issue. Second, the defendant argues that because the government failed to carry out the minimization procedures required by FISA, the surveillance at issue was unlawful, thus entitling him to disclosure of the FISA material under section 106(g) of FISA, 50 U.S.C. § 1806(g). Finally, the defendant argues that he is entitled to disclosure of the FISA material under section 106(g) of FISA, 50 U.S.C. § 1806(g), as a matter of due process.

The Court has considered legal briefs submitted by the parties, and has heard oral argument from the parties on whether the electronic surveillance material at issue should be disclosed. In addition, the Court reviewed ex parte, in camera, a sealed Exhibit submitted by the Attorney General, pursuant to section 106(f) of the FISA, 50 U.S.C. § 1806(f), that included the classified sealed affidavits of Russell P. Buscaglia, Assistant United States Attorney, and W. Douglas Gow, Assistant Director of Intelligence Division, Federal Bureau of Investigation. The Court also received and considered an affidavit of the Honorable Dick Thornburg, the Attorney General of the United States. After reviewing all the information and material submitted by the parties, the Court denies defendant's motion for disclosure of the FISA surveillance material for the reasons stated herein.

FISA

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). FISA establishes procedures 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., pt. 1 at 4-5, 1978 U.S.Code Cong. & Admin.News at 3904, 3906. It also created a United States Foreign Intelligence Surveillance Court ("USFISC"), on which seven United States District Court Judges, selected by the Chief Justice of the United States, sit. 50 U.S.C. § 1803(a).

To obtain a surveillance order, a federal officer, having first obtained approval from the Attorney General, must submit an application to one of the USFISC Judges. 50 U.S.C. § 1804(a). The application must detail the identity of the target; the information relied on by the government to demonstrate that the target is a "foreign power" or an "agent of a foreign power"; evidence that the place where the surveillance will occur is being used, or is about to be used by the foreign power or its agent; the type of surveillance to be used; the minimization procedures to be employed; and certification that the information sought is "foreign intelligence information". See 50 U.S.C. § 1804(a)(1)-(11).

Before issuing the order, the USFISC Judge must make specific findings, including that:

  there is probable cause to believe that (A) the
  target of the electronic surveillance is a foreign
  power or an agent of a foreign power: Provided,
  that no United States person may be considered a
  foreign power or an agent of a foreign power solely
  upon the basis of activities protected by the first
  amendment to the Constitution of the United States. .

50 U.S.C. § 1805(a)(3)(A). An order is usually valid for 90 days with certain limited exceptions. See, e.g., 50 U.S.C. § 1802 (a), 1805(e).

Under FISA, 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 disclosed or used except for lawful purposes. 50 U.S.C. § 1806(a).

Should FISA surveillance produce any information that would be relevant in a criminal proceeding, section 106 of FISA, 50 U.S.C. § 1806, establishes procedures for the use or disclosure of that information. More specifically, when a criminal defendant moves for disclosure of FISA surveillance material, sections 106(f) and 106(g) of FISA, 50 U.S.C. § 1806(f)-(g), prescribe the procedures to be followed by the Court in determining whether or not to order disclosure.

Under FISA, when a criminal defendant who is the target of an electronic surveillance, or whose communications or activities were subject to electronic surveillance, moves for disclosure of the FISA material, and the Attorney General opposes the motion by filing an affidavit indicating that disclosure or an adversary hearing would harm the national security, the Court must conduct an ex parte, in camera review of the application, order, and such other material relating to the surveillance as may be necessary to determine whether the surveillance was lawfully authorized and conducted. 50 U.S.C. § 1806(f). The Court may order disclosure of the material if such disclosure is necessary to make an accurate determination of the legality of the surveillance. 50 U.S.C. § 1806(f) (emphasis added).

If the Court determines that the surveillance was unlawfully authorized or conducted, it must order disclosure of the FISA material. 50 U.S.C. § 1806(g) (emphasis added). In United States v. Belfield, 692 F.2d 141 (D.C.Cir. 1982), the court stated that: "[e]ven when the government has purported not to be offering any evidence obtained or derived from the electronic surveillance, a criminal defendant may claim that he has been the victim of an illegal surveillance and seek discovery of the [FISA surveillance material] to ensure that no fruits thereof are being used against him." Id. at 146. If, on the other hand, the Court determines that the surveillance was lawfully authorized and conducted, it must deny the defendant's motion for disclosure "except to the extent that due process requires discovery or disclosure." 50 U.S.C. § 1806(g); see United States v. Spanjol, 720 F. Supp. 55 (E.D.Pa. 1989).

Thus, the Court can grant a motion for disclosure of FISA surveillance material in only three instances: (1) if disclosure is necessary for the Court to make an accurate determination of the legality of the surveillance; (2) if the surveillance was unlawfully authorized or conducted; or (3) if due process requires disclosure. 50 U.S.C. § 1806(f)-(g).

FINDINGS OF FACT

Having read and analyzed the parties' briefs, heard oral argument, and reviewed ex parte, in camera certain relevant material, the Court hereby makes the following findings of fact:

1. As part of the government's response to defendant's motion for disclosure of the FISA electronic surveillance material, the Attorney General of the United States filed an Affidavit and Claim of Privilege pursuant to 50 U.S.C. § 1806(f). In this affidavit, the Attorney General asserts that it would harm the national security of the United States to disclose or have an adversary hearing with respect to the documents of the USFISC that are contained in the sealed Exhibit submitted to the Court, and to disclose any additional information relating to the electronic surveillance at issue.

2. The sealed Exhibit submitted by the Attorney General and other material before the Court demonstrate that the government, in conducting the electronic surveillance, was engaged in collection of foreign intelligence. Complete copies of the government's applications for all such surveillance and the USFISC orders were included in the Attorney General's sealed Exhibit.

3. The government attorney has stated in an affidavit that he has not made, nor will he make, any direct, indirect or derivative use of the ...


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