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UNITED STATES v. RAHMAN

August 18, 1994

UNITED STATES OF AMERICA,
v.
OMAR AHMAD ALI ABDEL RAHMAN, a/k/a "Omar Amed Ali," a/k/a "Omar Abdel Al-Rahman," a/k/a "Sheik Rahman," a/k/a "The Sheik," a/k/a "Sheik Omar," EL SAYYID NOSAIR, a/k/a "Abu Abdallah," a/k/a "El Sayyid Abdul Azziz," a/k/a "Victor Noel Jafry," IBRAHIM A. EL-GABROWNY, SIDDIG IBRAHIM SIDDIG ALI, CLEMENT RODNEY HAMPTON-EL, a/k/a "Abdul Rashid Abdullah," a/k/a "Doctor Rashid," MOHAMMED ABOUHALIMA, ABDO MOHAMMED HAGGAG, AMIR ABDELGANI, a/k/a "Abdou Zaid," FARES KHALLAFALLA, a/k/a "Abdou Fares," TARIG ELHASSAN, FADIL ABDELGANI, MOHAMMED SALEH, a/k/a "Mohammed Ali," VICTOR ALVAREZ, a/k/a "Mohammed," MATARAWY MOHAMMED SAID SALEH, a/k/a "Wahid," EARL GANT, a/k/a "Abd Rashid," a/k/a "Abd Jalil," a/k/a "Abdur Rasheed," Defendants.



The opinion of the court was delivered by: MICHAEL B. MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 The defendants in this case are charged with participating in a seditious conspiracy to conduct a war of urban terrorism against the United States, and with related acts and agreements in furtherance of that goal. Now before the court are motions by Omar Ahmad Ali Abdel Rahman, Siddig Ibrahim Siddig Ali, Clement Rodney Hampton-El, Victor Alvarez and Fadil Abdelgani to suppress tape recorded telephone calls which the government intends to introduce at trial, and which were obtained by the government through electronic surveillance that the government says was conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA" or the "Act"). 50 U.S.C. §§ 1801-1811 (1988). Also before the court is an application by the government to have the legality of its surveillance determined based on ex parte, in camera submissions, pursuant to 50 U.S.C. § 1806 (f). For the reasons set forth below, the government's application is granted and the defendants' motions are denied.

 I.

 The Act creates a Foreign Intelligence Surveillance Court ("FISA court") which reviews government applications to conduct surveillance in aid of protecting the United States against attack by foreign governments or international terrorist groups. 50 U.S.C. §§ 1801(e), 1803. The surveillance in question here was conducted based on six separate applications relating to four separate defendants: Rahman, Hampton-El, Siddig Ali and Earl Gant. Rahman and Hampton-El were the subject of two applications each. These applications and related documents are contained in a sealed exhibit submitted to the court. On June 30, 1993 and September 2, 1993, the Attorney General, acting pursuant to 50 U.S.C. § 1806(b), authorized use of materials derived from the electronic surveillance in connection with this prosecution.

 Each of the six orders was signed by a judge of the FISA court, and is based on an application accompanied by a certification from either the Director of the FBI or the Assistant to the President for National Security Affairs, each of whom is or had been authorized to make such certification pursuant to authority granted by 50 U.S.C. § 1804(a)(7), that the information sought is foreign intelligence information within the meaning of 50 U.S.C. § 1801(e)(1)(B) -- i.e., information relating to either a United States citizen or a lawful resident alien that is necessary to protect the United States against "sabotage or international terrorism by a foreign power or an agent of a foreign power." The statute defines a "foreign power" to include "a group engaged in international terrorism or activities in preparation therefor," 50 U.S.C. § 1801(a)(4), and defines "international terrorism" as activities that:

 
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State,
 
(2) appear to be intended --
 
(A) to intimidate or coerce a civilian population;
 
(C) to affect the conduct of a government by assassination or kidnapping; and
 
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.

 50 U.S.C. § 1804(c). Each of the orders is accompanied by one or more implementing or amended orders and certifications therefor.

 The FISA court judge who reviewed each of the applications was charged under the statute with determining only that there was probable cause to believe that the target of the surveillance was an agent of a foreign power as defined in the statute, including a member of a group engaged in international terrorism or activities in preparation for such terrorism, 50 U.S.C. § 1801(b)(2)(C), (D), that the application contained all the necessary certifications and that the certifications were not clearly erroneous, including insofar as they represented that the primary purpose of the surveillance was the gathering of foreign intelligence information. 50 U.S.C. § 1805; United States v. Duggan, 743 F.2d 59, 77 ...


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