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United States of America v. Adis Medunjanin

February 16, 2012


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


Defendant Adis Medunjanin awaits trial on charges that he conspired with Najibullah Zazi and others to commit coordinated bombings within the New York City subway system on behalf of al-Qaeda. In a successful effort to derail what was believed to be an imminent terrorist attack, federal and state agents physically searched the residences and otherwise monitored the activities and communications of defendant, his alleged co-conspirators and others potentially involved in or aiding and abetting the plot.

On January 19, 2010, as required by 50 U.S.C. §§ 1806(c) and 1825(d), the government notified defendant of its intent to introduce at trial evidence obtained pursuant to the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et seq. See ECF Docket # 82, Exhibit A, Notice. This notice confirms both that the Attorney General authorized disclosure of the evidence in a criminal proceeding, see50 U.S.C. § 1806(b), and that defendant is an "aggrieved person"*fn1 with standing to challenge the legality of the subject surveillance, see 50 U.S.C.§§ 1806(c) & 1825(d) (requiring prior notice if the United States intends to introduce or disclose FISA-acquired evidence "against an aggrieved person" during a trial or other proceeding).

On February 11, 2011, defendant moved to suppress all FISA-derived evidence "on the ground[] that [it] was unlawfully acquired."*fn2 50 U.S.C. § 1806(e)(1). In the alternative, defense counsel requested access to the FISA applications and orders (also known as "dockets") in as much as it was "necessary" to aid the Court in "mak[ing] an accurate determination of the legality of the surveillance." 50 U.S.C. § 1806(f). In response, the government offered a comprehensive classified submission refuting the defendant's arguments and appending, for in camera and ex parte review, the FISA dockets relating to the surveillance in question. On September 8, 2011, the Court denied defendant's FISA suppression motion. ECF Docket # 147. Although given the classified nature of the materials involved, the Court is "necessarily circumspect in [its] discussion," United States v. Abu-Jihaad, 630 F.3d 102, 130 (2d Cir. 2010), the rationale for that ruling follows.


A. Constitutionality of FISA "Enacted in 1978, FISA permits the Chief Justice of the United States to designate eleven federal judges as the Foreign Intelligence Surveillance Court ("FISA Court") with jurisdiction to entertain ex parte executive applications for electronic surveillance for the purpose of obtaining foreign intelligence information."*fn3 Abu-Jihaad, 630 F.3d at 117 (internal quotation marks and citations omitted); see generally In re Sealed Case, 310 F.3d 717, 722-23 (FISA Ct. Rev. 2002). "Congress passed FISA to settle what it believed to be the unresolved question of the applicability of the Fourth Amendment warrant requirement to electronic surveillance for foreign intelligence purposes, and to remove any doubt as to the lawfulness of such surveillance." United States v. Stewart, 590 F.3d 93, 126 (2d Cir. 2009) (internal quotation marks omitted). Accordingly, courts within the Second Circuit repeatedly have upheld the legality of FISA's provisions in light of the requirements imposed on the government in conducting surveillance to acquire foreign intelligence information in particular cases. See, e.g., United States v. AbuJihaad, 531 F.Supp.2d 299 (D. Conn. 2008), aff'd, 630 F.3d 102; United States v. Sattar, No. 02 CR. 395 JGK, 2003 WL 22137012 (S.D.N.Y. Sept. 15, 2003), aff'd sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009); United States v. Rahman, 861 F.Supp. 247 (S.D.N.Y. 1994), aff'd, 189 F.3d 88 (2d Cir. 1999); United States v. Megahey, 553 F.Supp. 1180 (E.D.N.Y. 1982), aff'd sub nom. United States v. Duggan, 743 F.2d 59 (2d Cir. 1984). Nevertheless, for the express purpose of preserving the arguments for appeal, defendant urges this Court to declare FISA unconstitutional and to suppress the FISA-derived evidence the government intends to introduce at defendant's trial.*fn4 ECF Docket # 100, Exh. 3, Defense Brief ("Def. Br.") at 4. Most of defendant's arguments are foreclosed by controlling precedent, and the balance are unpersuasive.

1. Standard for Probable Cause

First, defendant argues that FISA violates the Fourth Amendment because it does not require a demonstration of probable cause to believe that the resulting surveillance will reveal foreign intelligence information.*fn5 Def. Br. at 5. While it is true that FISA does not require this particular probable cause demonstration, that fact is without constitutional consequence. "To issue a FISA warrant, a judge must find, inter alia, that there is probable cause to believe that the target of the surveillance is a 'foreign power or an agent of a foreign power' and that the place or facilities to be surveilled are 'being used, or . . . about to be used, by a foreign power or an agent of a foreign power.'" Abu-Jihaad, 630 F.3d at 117-18 (quoting 50 U.S.C. § 1805(a)(2)(B)) (emphasis added). "These requirements make it reasonable to dispense with a requirement that the FISA Judge find probable cause to believe that surveillance will in fact lead to the gathering of foreign intelligence information." Duggan, 743 F.3d at 73 ("[T]he procedures fashioned in FISA a[re] a constitutionally adequate balancing of the individual's Fourth Amendment rights against the nation's need to obtain foreign intelligence information.").

2. Purpose of Surveillance

Second, defendant submits that permitting FISA warrants upon a showing that a "significant purpose" of the surveillance is to obtain foreign intelligence information violates the Fourth Amendment. Def. Br. at 5. The Second Circuit recently rejected this precise argument in a comprehensive opinion examining the issue from every conceivable angle. See Abu-Jihaad, 630 F.3d at 131 ("[W]e identify no constitutional infirmity in Congress's decision to allow FISA warrants to issue on certification of a 'significant purpose' to obtain foreign intelligence information . . . ."); see id. at 128-29 ("[W]e hold that certification of a significant purpose to obtain foreign intelligence information, together with satisfaction of all other FISA requirements, is reasonable and, therefore, sufficient to support the issuance of a warrant under the Fourth Amendment.").

3. Minimization Procedures

Third, defendant contends that FISA's "open-ended and government-defined minimization procedures" render all surveillance unconstitutional, as does permitting the executive branch to define its own minimization standards, which the FISA Court then "rubber stamps." Def. Br. at 5-6. These arguments are unconvincing.

The FISA Court does not, as defendant asserts, capitulate to the executive's unilateral determinations regarding whether and how to minimize non-pertinent communications. Rather, FISA mandates the implementation of . . .

. . . specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information. *fn6

50 U.S.C. § 1801(h)(1) (emphasis added). The FISA Court thus has the power independently to assess whether the FISA "application properly proposes, as required by § 1801(h), to minimize the intrusion upon the target's privacy." Duggan, 743 F.2d at 73-74. Before approving or ratifying surveillance, the FISA Court must determine that the proposed minimization procedures fit the statutory definition-specifically, that they are reasonable "in light of the purpose and technique of the particular surveillance" requested. 50 U.S.C. § 1801(h)(1); see also 50 U.S.C. § 1805(a)(3) (a FISA Court judge "shall . . . approv[e] the electronic ...

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