Hampton-El and Rahman challenge the certification by the authorized official that each was an "agent of a foreign power" and therefore a proper target of FISA surveillance. Hampton-El simply states that such a label must have been knowingly or recklessly wrong as applied to him, and Rahman argues that only an "international organization" can be an agent of a foreign power, and he is not such an organization. It is sufficient response to both claims to point out that the statute defines an agent of a foreign power to include a person who "knowingly engages in sabotage or international terrorism," or knowingly aids and abets another to do so, 50 U.S.C. § 1801(b)(2)(C), (D), and to find, as I do, that the application contained ample basis for concluding that there was probable cause to believe both men fit that category.
Hampton-El's casual suggestion that no statements of his that are arguably protected by the free speech or free exercise provisions of the First Amendment, U.S. Const. amend. I, cl. 1, 2, could constitute evidence that he was an agent of a foreign power (Hampton-El Mem. at 17), is simply wrong. Brandenburg v. Ohio, 395 U.S. 444, 448, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969); United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir.) and cases cited therein, cert. denied, 498 U.S. 828, 112 L. Ed. 2d 59, 111 S. Ct. 87 (1990).
Although both Alvarez and Abdelgani challenge their status as agents of a foreign power, neither has standing to challenge the admissibility of evidence on that basis because, although both were overheard in the course of FISA surveillance, neither was a target of such surveillance, and therefore there need have been no finding that either fit the statutory definition before surveillance of others was authorized.
Siddig Ali and Hampton-El have challenged the sufficiency of the minimization conducted here because apparently all calls were recorded rather than simply monitored intermittently with only relevant portions recorded. Siddig Ali notes that his wife's conversations were recorded, and Hampton-El notes that he speaks English and therefore monitoring would have been possible as to his conversations. Siddig Ali also faults the government for failure to detect "patterns of innocent conversations" that would have permitted certain calls to pass unrecorded. (Siddig Ali Mem. 15)
The minimization procedures followed here were the standard minimization procedures incorporated in the surveillance orders at issue, which specifically permit either contemporaneous monitoring or automatic recording. (Sealed Exhibit, Tab 4 § 3(d)) They provide for the possibility that all communications in connection with a surveillance may be acquired, and direct that the monitoring of tapes of such communications be conducted with the same procedures as live monitoring. (Id. § 3(e)(2), (3)) It appears that those procedures were followed, with summaries at the logging stage referring only in broad terms to the content of apparently non-relevant calls, logs distributed only to targets, and only pertinent calls distributed generally. (Gov't. Mem. 5/18/94 at 21-22 n. 18, 19)
The government offers five reasons why it was necessary here to record all calls automatically. First, many conversations were in Arabic, a language with many dialects and one not easily monitored. Second, the government points to use of coded or cryptic language, which makes it difficult to decide while a call is being monitored which parts of it may be relevant and which are not. Third, the government notes that all the authorized interceptions were completed within the 90-day period of the initial authorizations, with the result that there was not a great deal of time to detect patterns of innocent conversations, if there were such patterns. In addition, the government cites two portions of FISA legislative history to support the argument that when the purpose of surveillance is to gather intelligence about international terrorism, greater flexibility in acquiring and storing information is necessary, because innocent-sounding conversations may later prove to be highly significant, and because individual items of information, not apparently significant when taken in isolation, may become highly significant when considered together over time. H.R. Rep. No. 1283, 95th Cong. 2d Sess., pt. 1 at 55, 59 (1978).
The moving defendants have not disputed the government's account of its minimization in this case, nor have they seriously contested the government's arguments, beyond insisting that the wheat could have been separated from the chaff while the stalks were still growing. That is simply not persuasive.
For the above reasons, the motions to suppress the FISA interceptions are denied.
Michael B. Mukasey,
U.S. District Judge
Dated: New York, New York
August 18, 1994
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