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United States v. Elshinawy

United States District Court, D. Maryland

March 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MOHAMED ELSHINAWY, Defendant.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         Mohamed Elshinawy, a United States citizen of Egyptian descent, was indicted on January 13, 2016 (ECF 19) and charged, inter alia, with conspiracy to provide and with providing material support to a designated foreign terrorist organization, in the form of personnel, services (including means and methods of communication), and financial services, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2339B(d)(1)(A), (D), (E), and (F). The foreign terrorist organization is ISIS (Islamic State of Iraq and al-Sham or the Islamic State of Iraq and Syria), also known as ISIL (Islamic State of Iraq and the Levant). ECF 19.

         In particular, Count One charges conspiracy from in or about February 2015 to December 11, 2015. Count Two charges the substantive offense of providing material support. In Count Three, Elshinawy is charged with the willful collection of funds, “directly and indirectly, with the knowledge that they were to be used, in full or in part, to carry out a terrorist act . . . .”, in violation of 18 U.S.C. §§ 2339C(a)(1)(B); 2339C(a)(3).[1] And, Count Four charges the defendant with knowingly and willfully making materially false statements in July 2015, to agents of the Federal Bureau of Investigation (“FBI”), in violation of 18 U.S.C. § 1001(a)(2).

         The government filed a notice of its intent to offer into evidence information obtained or derived from electronic surveillance and physical search authorized by the United States Foreign Intelligence Surveillance Court (“FISC”), pursuant to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), as amended, 50 U.S.C. §§ 1801-1812. ECF 47. The government subsequently amended its notice, advising of its intent to use only FISA information obtained or derived from electronic surveillance. ECF 81.

         Defendant has filed a “Motion To Suppress All Illegally Obtained FISA Evidence And Request For Production Of The Government's FISA Application, Orders, And Related Materials.” ECF 63 (the “Motion”). In the Motion, filed pursuant to Fed. R. Crim. P. 12(b)(3)(C) and 50 U.S.C. §§ 1806(e) and 1825(f), defendant seeks disclosure of materials that were presented to the FISC that provided the legal basis for the electronic surveillance from which the government obtained some of the evidence that will be used against defendant. FISA protects such materials from disclosure, except as provided in 50 U.S.C. §§ 1806(f), (g), i.e., where disclosure is necessary for the Court to determine whether the surveillance was legal, or if due process requires disclosure. In the event that disclosure “would pose a threat to national security, ” defendant asks the Court to “examine the FISA materials and suppress all illegally-obtained material” (ECF 63 at 1) and “to suppress all evidence” not obtained “in conformity with prior authorization or approval.” Id. at 3.

         The government filed a detailed, 52-page unclassified memorandum in opposition to the Motion (“Opposition, ” ECF 82), as well as a comprehensive classified response and Sealed Appendix (ECF 85), all submitted in camera, ex parte, and under seal. Thereafter, the defendant filed a Reply. ECF 95.

         As discussed, infra, no hearing is necessary to resolve the Motion. See also Local Rule 105.6. For the reasons that follow, I shall DENY the Motion.[2]

         I. The Motion

         Elshinawy moves to suppress the evidence obtained by the government under FISA (the “FISA Information”), and he seeks disclosure of all FISA applications, orders, and related materials (the “FISA Materials”). ECF 63. Defendant argues in his Reply: “Disclosure of the FISA [M]aterials is necessary to aid the Court in its assessment of the legality of the surveillance, in part, because the surveillance records include a significant amount of non-foreign intelligence, which calls into question whether the Government complied with minimization procedures to limit the acquisition, retention, and dissemination of irrelevant information.” ECF 95 at 2. Moreover, defendant asserts: “Defense counsel remains in the dark as to the genesis of the surveillance, whether the Government targeted any other individuals for surveillance in connection with this investigation, and whether the materials disclosed by the Government thus far represent the full scope of surveillance conducted pursuant to FISA . . . or any other authority granting clandestine surveillance of which Mr. Elshinawy was the target.” Id. at 3. Among other assertions, defendant maintains that any probable cause determination cannot be based on defendant's “First Amendment activities.” Id. at 9 (citing 50 U.S.C. § 1805(a)(2)(A)). Defendant also contends that the Due Process Clause of the Fifth Amendment compels disclosure of certain FISA evidence, pursuant to 50 U.S.C. § 1806(g). ECF 95 at 10.

         As noted, the government filed an unclassified Opposition in response to the Motion (ECF 82), as well as a classified response. ECF 85. The government included with the Opposition a Declaration and Claim of Privilege executed on November 29, 2016, by then Attorney General Loretta E. Lynch. The Attorney General asserted under oath that disclosure of the government's classified “FISA materials” and an adversary hearing would harm the national security of the United States. See ECF 82-1.

         Elshinawy's Motion has triggered this Court's review of FISA Materials in order to determine whether the FISA Information was lawfully acquired. See 50 U.S.C. §§ 1801-1812. Because the Attorney General filed a Declaration, under oath, representing that disclosure of the classified information would harm the national security of the United States, I conducted an in camera, ex parte review of the FISA Materials relating to the use of electronic surveillance, for the purpose of determining “whether the surveillance of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. § 1806(f).

         The Court must determine: (1) whether the certification submitted by the Executive Branch in support of a FISA application(s) was properly made; (2) whether, on de novo review, the application(s) established probable cause, as required by FISA; and (3) whether the collection was properly minimized. See United States v. Abu-Jihaad, 630 F.3d 102, 130-31 (2d Cir. 2010); see also 50 U.S.C. §§ 1806(f), 1825(g). I am satisfied that these requirements have been met.

         The Court must also consider whether the in camera, ex parte review process mandated by 50 U.S.C. § 1806(f) accords with due process. And, the Court must determine whether the FISA submissions contain any information for which disclosure to the defendant is required by due process. See 50 U.S.C. § 1806(g). My review reveals that neither of these due process considerations is implicated here.

         II. Statutory Framework

         FISA, enacted in 1978, created a “secure framework by which the Executive Branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this Nation's commitment to privacy and individual rights.” S. Rep. No. 604, 95th Cong., 1st Sess. 15 (1977), reprinted in 1978 U.S. Code Cong. & Ad. News 3904, 3916. “The centerpiece of the legislation” was the creation of the United States Foreign Intelligence Surveillance Court, composed of federal district judges appointed by the Chief Justice. ACLU Found. of S. California v. Barr, 952 F.2d 457, 461 (D.C. Cir. 1991) (citing 50 U.S.C. § 1803(a)).

         The statute creates a procedure by which the Executive Branch may seek a judicial order from the FISC, authorizing the use of electronic surveillance, physical searches, or both within the United States, where a significant purpose is the collection of foreign intelligence information. 50 U.S.C. §§ 1804(a)(6)(B) and 1823(a)(6)(B).[3] In a criminal prosecution, FISA authorizes the use of information obtained or derived from any FISA-authorized electronic surveillance or physical search, provided, inter alia, that advance authorization was obtained from the Attorney General, 50 U.S.C. §§ 1806(b) and 1825(c), and that proper notice is subsequently given to the court and to the aggrieved person against whom the information is to be used. 50 U.S.C. §§ 1806(c)-(d) and 1825(d)-(e).[4]

         Upon receiving notice, an aggrieved person against whom the information is to be used may move to suppress the FISA information on the grounds that: (1) the information was unlawfully acquired; or (2) the electronic surveillance and/or physical search was not conducted in conformity with an order of authorization or approval. 50 U.S.C. §§ 1806(e) and 1825(f). In addition, FISA contemplates that a defendant may file a motion or request under any other federal statute or rule to discover or obtain applications, orders, or other materials relating to electronic surveillance or physical searches. 50 U.S.C. §§ 1806(f) and 1825(g).

         With the exception of emergency authorizations, [5] FISA requires a prior court order to conduct electronic surveillance or searches in order to gather “foreign intelligence information.” See 50 U.S.C. §§ 1804(a)(6)(B) and 1823(a)(6)(B). And, as indicated, FISA requires the Attorney General to approve an application submitted to the FISC for the collection of “foreign intelligence information.” 50 U.S.C. §§ 1805(a)(1) and 1824(a)(1). Under 50 U.S.C. §§ 1801(e) and 1821(1), “foreign intelligence information” means

(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against --
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to --
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.

50 U.S.C. § 1801(e); see also § 1821(1) (adopting definitions from 50 U.S.C. § 1801).

         “United States person, ” a term referenced above, is defined in 50 U.S.C. § 1801(i). It states, in part, that a “United States person” is “a citizen of the United States, an alien lawfully admitted for permanent residence …, an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power….” See also 50 U.S.C. § 1821(2) (adopting the definition in 50 U.S.C. § 1801).

         Strict requirements govern an application to conduct electronic surveillance pursuant to FISA. The application must contain information as set forth in 50 U.S.C. § 1804(a)(1)-(9), as follows:

(1) the identity of the Federal officer making the application;
(2) the identity, if known, or a description of the specific target of the electronic surveillance;
(3) a statement of the facts and circumstances relied upon by the applicant to justify his belief that-
(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; 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) a statement of the proposed minimization procedures;
(5) a description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance;
(6) a certification or certifications by the Assistant to the President for National Security Affairs, an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate, or the Deputy Director of the Federal Bureau of Investigation, if designated by the President as a certifying official--
(A) that the certifying official deems the information sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is to obtain foreign intelligence information;
(C) that such information cannot reasonably be obtained by normal investigative techniques;
(D) that designates the type of foreign intelligence information being sought according to the categories described in ...

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