nationalsecuritylaw DEADLINE Feb. 1: The 5th Annual National Security Law Faculty Workshop

January 29, 2012

A final reminder: February 1st is the deadline for letting us know if you would like to present at or just attend the 5th Annual National Security Law Faculty Workshop. See below, or the attached.

From: Robert Chesney [mailto:rchesney@law.utexas.edu]
Sent: Thursday, November 17, 2011 3:54 PM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: [nationalsecuritylaw] save the date/call for papers: The 5th Annual National Security Law Faculty Workshop

Please pass this along to anyone whom you think would be interested! I hope to see many of you in Texas in the spring in connection with this event….

THE 5th ANNUAL

NATIONAL SECURITY LAW FACULTY WORKSHOP

May 17-18, 2012

Houston, TX

Hosted by:

The University of Texas School of Law (Prof. Robert Chesney, co-host)

The South Texas College of Law (Prof. Geoff Corn, co-host)

The Judge Advocate General’s Legal Center and School (U.S. Army)

The International Committee of the Red Cross

Announcement for 5th annual workshop 2012.doc


nationalsecuritylaw United States v. Martinez (D. Maryland Jan. 26, 2012) (guilty plea)

January 29, 2012

And here’s another one, also from last week. Again, press release excerpts below (and this time the plea agreement is attached)

BALTIMORE – Antonio Martinez, aka Muhammad Hussain, 22, of Baltimore, a U.S. citizen, pleaded guilty today to attempted use of a weapon of mass destruction against federal property in connection with a scheme to attack an armed forces recruiting station in Catonsville, Md. Martinez was arrested on Dec. 8, 2010, after he attempted to detonate what he believed to be explosives at the armed forces recruiting station.

According to his plea agreement, on Oct. 22, 2010, Martinez raised the subject of attacking military targets with an FBI confidential source (CS). During the recorded conversations that followed between Martinez, the CS and later, an FBI undercover agent, Martinez identified his target — an armed forces recruiting station in Catonsville — and spoke about his anger toward America, his belief that Muslims were being unjustly targeted and killed by the American military and his desire to commit jihad to send a message that American soldiers would be killed unless the country stopped its “war” against Islam.

Martinez attempted to recruit a number of people to join in the operation, including an individual whom he said had the ability to obtain weapons. All of them declined, and one of them expressly attempted to dissuade Martinez from committing jihad. Thereafter, Martinez agreed to meet the source’s “Afghani brother,” an undercover FBI agent (UC), whom the CS represented would be interested in assisting in the operation.

According to the statement of facts, both prior to, and during the course of the investigation, Martinez articulated his militant beliefs in postings on his public Facebook page and in two Facebook chats with the CS.

According to the plea agreement, Martinez first met the UC on Nov. 16, 2010, and advised the UC that he wanted jihadist activities to be his “profession.” Throughout the course of the investigation, Martinez repeatedly expressed his desire to go forward with the attack. Martinez admitted that on Dec. 8, 2010, he met the CS to drive to a public parking lot near the recruiting center. On the way, Martinez had the CS tape him on a camcorder and a statement that he would continue to fight against the oppressors until those who waged war with Islam stopped their actions. Martinez subsequently attempted to detonate an explosive device at the armed forces recruiting station. Martinez admitted that the bomb was intended to kill military service members who worked in the building. As set forth in court documents, agents investigating Martinez ensured that the bomb was inert and no danger was presented to the public.

If the court accepts the plea, Martinez will be sentenced to 25 years in prison, which the government and the defendant have agreed is the appropriate disposition of the case. U.S. District Judge J. Frederick Motz has scheduled sentencing for April 6, 2012, at 9:00 a.m.

MartinezAntonioPlea-signed.pdf


nationalsecuritylaw United States v. Melaku (E.D. Va. Jan. 26, 2012) (guilty plea)

January 29, 2012

From the government’s press release (see also attached statement of facts from the plea agreement)

ALEXANDRIA, Va. – Yonathan Melaku, 23, of Alexandria, Va., pleaded guilty today to damaging property and firearms violations involving five separate shootings at military installations in northern Virginia between October and November 2010 and attempting to injure veterans’ memorials at Arlington National Cemetery.

Melaku pleaded guilty to a three-count information that included injuring property of the United States, use of a firearm during a crime of violence and attempted injury to veterans’ memorials on U.S. property. The defense and government jointly recommended in the plea agreement a sentence of 25 years in prison. He will be formally sentenced on April 27, 2012.

According to the statement of facts filed with his plea agreement, Melaku admitted that he carried out a series of five shootings from Oct. 17, 2010, through Nov. 2, 2010, at the following locations: the National Museum of the Marine Corps (twice), the Pentagon, a Marine Corps recruiting sub-station in Chantilly, Va., and a U.S. Coast Guard recruiting office in Woodbridge, Va. Each shooting took place late at night or early in the morning and involved multiple 9mm rounds fired at each building. The cost for repairs at the facilities exceeded $100,000.

Melaku admitted today that during the second shooting at the National Museum of the Marine Corps, he set up a video camera within the interior of his vehicle to record the shooting incident. The video shows Melaku repeatedly firing a handgun out the passenger-side window, and he narrates the incident on the video and states, among other things: That’s my target. That’s the military building. It’s going to be attacked” and at the conclusion of multiple shots exclaiming “Allahu Akbar” repeatedly.

In his statement of facts, Melaku stated that he attempted to flee law enforcement after being spotted on the property of Ft. Myer in Arlington, Va., at approximately 1:30 a.m. on June 17, 2011. During the pursuit, he dropped a backpack that contained numerous spent 9mm shell casings; four bags containing ammonium nitrate, and a spiral notebook with numerous Arabic statements referencing the Taliban, al Qaeda, Osama bin Laden, “The Path to Jihad,” as well as a list of several other individuals associated with foreign terrorist organizations.

Melaku admitted that, at the time of his apprehension, he was attempting to enter the area of Arlington National Cemetery containing graves of deceased Iraq and Afghanistan war veterans, intending to desecrate and injure the grave markers by spray-painting the markers with Arabic statements and by leaving the ammonium nitrate he was carrying at the sites of the grave markers.

On June 17, 2011, during a search of his residence, FBI search teams found Melaku had stored within the bedroom closet of his residence a typed list titled “Timer” that included nine items that Melaku admitted are consistent with what would be required to construct the firing mechanism for an explosive device. Four of those items had been crossed through.

Melaku Statement of Facts.pdf


nationalsecuritylaw Feb 1 symposium at Emory

January 24, 2012

On February 1, 2012, the Emory International Law Review will host “International Law and the Internet: Adapting Legal Frameworks in Response to Online Warfare and Revolutions Fueled by Social Media.” The symposium will explore the various and novel legal issues surrounding the intersection of the Internet and international law, with a focus on human rights law and the law of war.

Recent cyber attacks and escalating cyber war rhetoric around the globe present today’s legal scholars and decision makers with difficult questions on how—or whether—to apply traditional notions of the law of war in the cyber realm. In addition, increased Internet access and social media is shaping modern societies and the ways in which people interact. The Internet is used by the
masses to spur public debate, organize peaceful gatherings, and even foment political revolutions; while some governments use Internet censorship as a tool to do just the opposite. Now, more than ever, there is a growing need for legal scholarship, discussion, and further clarification on how international law should treat the emergence of these technological advances.

Co- sponsored by Emory’s Center for International and Comparative Law and the American Society of International Law’s Lieber Society on the Law of Armed Conflict, this Symposium will feature two panel presentations and a keynote address delivered by Eric Greenwald, Senior Advisor to the Director of Operations at U.S. Cyber Command. The first panel starts at 9:45 am and is entitled “How Internet Access and Social Media Have Changed Revolutionary Tactics and Government Response,” with speakers Ryan Budish, (Harvard University, Berkman Center for Internet and Society); Ramnath Chellappa, (Emory University, Goizueta Business School); and Sascha Meinrath, (New America Foundation, Open Technology Initiative). The keynote address by Eric Greenwald is at 12:30 pm, followed by the second panel at 1:30 pm: “Re-Conceptualizing International Law Frameworks in Response to the Threat of Cyber Warfare”, which features Col. Gary Brown, (U.S. Cyber Command); Eric Jensen, (Brigham Young University Law School); Catherine Lotrionte, (Georgetown University Law Center, Institute for Law, Science and Global Security); and Michael N. Schmitt, (U.S. Naval War College).

The full agenda and additional information about registration, CLE credit, and parking is available on EILR’s website: www.law.emory.edu/eilr.


nationalsecuritylaw Fwd: Invitation to “The Law of Counterterrorism” on February 2, at 3:15 pm

January 24, 2012

0

The Georgetown Center on

National Security and the Law

Cordially invites you to a critical discussion of a newly-published book

by the ABA Section of Administrative Law and Regulatory Practice:

“The Law of Counterterrorism”

Authors

John Altenburg, Jr.

former Fellow, International Assessment and Security Center

Author of “Military Commissions”

Jeffrey Breinholt

National Security Division, Department of Justice

Author of “The Revolution of Substantive Criminal Counterterrorism Law: “Material Support” and its Philosophical Underpinnings”

W. George Jameson

former Director, Office of Policy & Coordination, CIAAuthor of “Intelligence and the Law: Introduction to the Legal and Policy Framework Governing Intelligence Community Counterterrorism Efforts”

Commentators

Jennifer Daskal

Fellow, Georgetown Center on National Security and the Law

Stephen Vladeck

Professor, American University Washington College of Law

Moderated by

Marty Lederman

Associate Professor, Georgetown University Law Center

3:15 pm

Thursday, February 2, 2012

Hart Auditorium

Georgetown University Law Center

600 New Jersey Avenue

Washington, DC 20002

Reception to Follow

RSVP to rsvp2.

Please contact nationalsecurity with questions.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Georgetown Center on National Security and the Law

600 New Jersey Ave, NW

Williams 361

Washington, DC 20001

202.662.4072

www.law.georgetown.edu/cnsl

www.securitylawbrief.com

www.statesecretsarchives.com

Georgetown ABA Law of Counterterrorism Book Event 2.2.12.docx


nationalsecuritylaw Lebron v. Rumsfeld (4th Cir. Jan. 23, 2012) (affirming dismissal of complaint)

January 23, 2012

A Fourth Circuit panel (Wilkinson, joined by Motz and Duncan) has affirmed dismissal of a civil suit brought in relation to the military detention of Jose Padilla, concluding among other things that no Bivens remedy should lie in these circumstances. The opinion is posted, at least for now, here.


nationalsecuritylaw United States v. Muhtorov (D. Col. Jan. 21, 2012) (material support arrest in Chicago)

January 23, 2012

This weekend, authorities arrested a man in Chicago, charging that he was attempting to provide himself (and actually providing himself) as personnel to the Islamic Jihad Union—a designated foreign terrorist organization focused on affairs in Uzbekistan. The attached arrest affidavit draws on extensive email surveillance to support the charge. Details from the press release appear below:

DENVER – Jamshid Muhtorov, aka Abumumin Turkistony, aka Abu Mumin, 35, of Aurora, Colo., was arrested Saturday afternoon at Chicago’s O’Hare Airport by members of the FBI’s Denver and Chicago Joint Terrorism Task Forces on a charge of providing and attempting to provide material support to a designated foreign terrorist organization, the Department of Justice announced today. The arrest took place without incident. Muhtorov made his initial appearance in U.S. District Court in Chicago this morning.

Muhtorov’s arrest is the result of a long-term investigation conducted by the FBI’s Denver Joint Terrorism Task Force. The Chicago Joint Terrorism Task Force provided investigative support.

The defendant is a refugee from Uzbekistan. According to the criminal complaint, which was obtained in Denver and initially filed under seal, Muhtorov indicated that he planned to travel overseas where he intended to fight on behalf of the Islamic Jihad Union (IJU), a designated foreign terrorist organization.

The IJU, a Pakistan-based extremist group, adheres to an anti-western ideology, opposes secular rule in Uzbekistan and seeks to replace the current regime with a government based on Islamic law. In addition to conducting suicide attacks in Uzbekistan, the IJU has claimed responsibility for numerous attacks against coalition forces in Afghanistan.

Muhtorov allegedly has sworn allegiance to the IJU, stating he was ready for any task, even with the risk of dying. The alleged activities of Muhtorov highlight the continued interest of extremists residing in the United States to join and support overseas terrorists.

The government does not allege that Muhtorov was plotting attacks against any targets inside the United States.

The defendant is charged by criminal complaint with one count of providing and attempting to provide material support to a designated foreign terrorist organization, specifically provision and attempted provision of personnel to the IJU. If convicted, Muhtorov faces a maximum sentence of 15 years in prison and up to a $250,000 fine.

This case was investigated by the FBI’s Joint Terrorism Task Force, which is comprised of local, state and federal law enforcement agencies in cities across the country. The investigation was also aided by the Counter-Terrorism Section of the Justice Department’s National Security Division.

Muhtorov is being prosecuted by Assistant U.S. Attorney Greg Holloway.

The charges in the complaint are allegations, and the defendant is presumed innocent unless and until proven guilty.

# # #

DO NOT REPLY TO THIS MESSAGE. IF YOU HAVE QUESTIONS, PLEASE USE THE CONTACTS IN THE MESSAGE OR CALL THE OFFICE OF PUBLIC AFFAIRS AT 202-514-2007.

muhtorov_complaint.pdf

muhtorov_complaint.pdf


nationalsecuritylaw corrected United States v. Kiriakou (E.D. Va. Jan. 23, 2012) (

January 23, 2012

I wrote that summary paragraph too fast, and misstated the chain of alleged information transmission – the claim is that the defendant passed the information to a journalist who then shared it with the defense investigator.

From: Robert Chesney
Sent: Monday, January 23, 2012 11:20 AM
To: nationalsecuritylaw@utlists.utexas.edu
Subject: United States v. Kiriakou (E.D. Va. Jan. 23, 2012) (

Well, this is going to get a lot of attention. Prosecutors are charging a former CIA officer with “repeatedly disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities”—in connection with an incident at GTMO in which high-value detainees were found to have possession of photographs of certain government employees and contractors. The complaint alleges that the defendant passed the information to a defense team investigator, and that this in turn enabled the defense team to obtain or engage in surveillance resulting in the photographs.

The criminal complaint is attached, along with the underlying affidavit. From the DOJ press release:

The charges result from an investigation that was triggered by a classified defense filing in January 2009, which contained classified information the defense had not been given through official government channels, and, in part, by the discovery in the spring of 2009 of photographs of certain government employees and contractors in the materials of high-value detainees at Guantanamo Bay, Cuba. The investigation revealed that on multiple occasions, one of the journalists to whom Kiriakou is alleged to have illegally disclosed classified information, in turn, disclosed that information to a defense team investigator, and that this information was reflected in the classified defense filing and enabled the defense team to take or obtain surveillance photographs of government personnel. There are no allegations of criminal activity by any members of the defense team for the detainees.

Kiriakou, 47, of Arlington, Va., was a CIA intelligence officer between 1990 and 2004, serving at headquarters and in various classified overseas assignments. He is scheduled to appear at 2 p.m. today before U.S. Magistrate Judge John F. Anderson in federal court in Alexandria.

Kiriakou was charged with one count of violating the Intelligence Identities Protection Act for allegedly illegally disclosing the identity of a covert officer and two counts of violating the Espionage Act for allegedly illegally disclosing national defense information to individuals not authorized to receive it. Kiriakou was also charged with one count of making false statements for allegedly lying to the Publications Review Board of the CIA in an unsuccessful attempt to trick the CIA into allowing him to include classified information in a book he was seeking to publish.

The four-count criminal complaint, which was filed today in the Eastern District of Virginia, alleges that Kiriakou made illegal disclosures about two CIA employees and their involvement in classified operations to two journalists on multiple occasions between 2007 and 2009. In one case, revealing the employee’s name as a CIA officer disclosed classified information as the employee was and remains covert (identified in the complaint as “Covert Officer A”). In the second case, Kiriakou allegedly disclosed the name and contact information of an employee, identified in the complaint as “Officer B,” whose participation in an operation to capture and question terrorism subject Abu Zubaydah in 2002 was then classified. Kiriakou’s alleged disclosures occurred prior to a June 2008 front-page story in The New York Times disclosing Officer B’s alleged role in the Abu Zubaydah operation.

The CIA filed a crimes report with the Justice Department on March 19, 2009, prior to the discovery of the photographs and after reviewing the Jan. 19, 2009, classified filing by defense counsel for certain detainees with the military commission then responsible for adjudicating charges. The defense filing contained information relating to the identities and activities of covert government personnel, but prior to Jan. 19, 2009, there had been no authorized disclosure to defense counsel of the classified information. The Justice Department’s National Security Division, working with the FBI, began the investigation. To avoid the risk of encountering a conflict of interest because of the pending prosecutions of some of the high-value detainees, Mr. Fitzgerald was assigned to supervise the investigation conducted by a team of attorneys from the Southern District of New York, the Northern District of Illinois and the Counterespionage Section of the National Security Division who were not involved in pending prosecutions of the detainees.

According to the complaint affidavit, the investigation determined that no laws were broken by the defense team as no law prohibited defense counsel from filing a classified document under seal outlining for a court classified information they had learned during the course of their investigation. Regarding the 32 pages of photographs that were taken or obtained by the defense team and provided to the detainees, the investigation found no evidence the defense attorneys transmitting the photographs were aware of, much less disclosed, the identities of the persons depicted in particular photographs and no evidence that the defense team disclosed other classified matters associated with certain of those individuals to the detainees. The defense team did not take photographs of persons known or believed to be current covert officers. Rather, defense counsel, using a technique known as a double-blind photo lineup, provided photograph spreads of unidentified individuals to their clients to determine whether they recognized anyone who may have participated in questioning them. No law or military commission order expressly prohibited defense counsel from providing their clients with these photo spreads.

Further investigation, based in part on emails recovered from judicially-authorized search warrants served on two email accounts associated with Kiriakou, allegedly revealed that:

• Kiriakou disclosed to Journalist A the name of Covert Officer A and the fact that Covert Officer A was involved in a particular classified operation. The journalist then provided the defense investigator with the full name of the covert CIA employee;

• Kiriakou disclosed or confirmed to Journalists A, B and C the then-classified information that Officer B participated in the Abu Zubaydah operation and provided two of those journalists with contact information for Officer B, including a personal email address. One of the journalists subsequently provided the defense investigator with Officer B’s home telephone number, which the investigator used to identify and photograph Officer B; and

• Kiriakou lied to the CIA regarding the existence and use of a classified technique, referred to as a “magic box,” in an unsuccessful effort to trick the CIA into allowing him to publish information about the classified technique in a book.

Upon joining the CIA in 1990 and on multiple occasions in following years, Kiriakou signed secrecy and non-disclosure agreements not to disclose classified information to unauthorized individuals.

Regarding Covert Officer A, the affidavit details a series of email communications between Kiriakou and Journalist A in July and August 2008. In an exchange of emails on July 11, 2008, Kiriakou allegedly illegally confirmed for Journalist A that Covert Officer A, whose first name only was exchanged at that point, was “the team leader on [specific operation].” On Aug. 18, 2008, Journalist A sent Kiriakou an email asking if Kiriakou could pick out Covert Officer A’s last name from a list of names Journalist A provided in the email. On Aug. 19, 2008, Kiriakou allegedly passed the last name of Covert Officer A to Journalist A by email, stating “It came to me last night.” Covert Officer A’s last name had not been on the list provided by Journalist A. Later that same day, approximately two hours later, Journalist A sent an email to the defense investigator that contained Covert Officer A’s full name. Neither Journalist A, nor any other journalist to the government’s knowledge, has published the name of Covert Officer A.

At the time of Kiriakou’s allegedly unauthorized disclosures to Journalist A, the identification of Covert Officer A as “the team leader on [specific operation]” was classified at the Top Secret/Sensitive Compartmented Information (SCI) level because it revealed both Covert Officer A’s identity and his association with the CIA’s Rendition, Detention and Interrogation (RDI) Program relating to the capture, detention and questioning of terrorism subjects. The defense investigator was able to identify Covert Officer A only after receiving the email from Journalist A, and both Covert Officer A’s name and association with the RDI Program were included in the January 2009 classified defense filing. The defense investigator told the government that he understood from the circumstances that Covert Officer A was a covert employee and, accordingly, did not take his photograph. No photograph of Covert Officer A was recovered from the detainees at Guantanamo.

In a recorded interview last Thursday, FBI agents told Kiriakou that Covert Officer A’s name was included in the classified defense filing. The affidavit states Kiriakou said, among other things, “How the heck did they get him? . . . [First name of Covert Officer A] was always undercover. His entire career was undercover.” Kiriakou further stated that he never provided Covert Officer A’s name or any other information about Covert Officer A to any journalist and stated “Once they get the names, I mean this is scary.”

Regarding Officer B, the affidavit states that he worked overseas with Kiriakou on an operation to locate and capture Abu Zubaydah, and Officer B’s association with the RDI Program and the Abu Zubaydah operation in particular were classified until that information was recently declassified to allow the prosecution of Kiriakou to proceed.

In June 2008, The New York Times published an article by Journalist B entitled “Inside the Interrogation of a 9/11 Mastermind,” which publicly identified Officer B and reported his alleged role in the capture and questioning of Abu Zubaydah – facts which were then classified. The article attributed other information to Kiriakou as a source, but did not identify the source(s) who disclosed or confirmed Officer B’s identity. The charges allege that at various times prior to publication of the article, Kiriakou provided Journalist B with personal information regarding Officer B, knowing that Journalist B was seeking to identify and locate Officer B. In doing so, Kiriakou allegedly confirmed classified information that Officer B was involved in the Abu Zubaydah operation. For example, Kiriakou allegedly emailed Officer B’s phone number and personal email address to Journalist B, who attempted to contact Officer B via his personal email in April and May 2008. Officer B had provided his personal email address to Kiriakou, but not to Journalist B or any other journalist. Subsequently, Kiriakou allegedly revealed classified information by confirming for Journalist B additional information that an individual with Officer B’s name, who was associated with particular contact information that Journalist B had found on a website, was located in Pakistan in March 2002, which was where and when the Abu Zubaydah operation took place.

After The New York Times article was published, Kiriakou sent several emails denying that he was the source for information regarding Officer B, while, at the same time, allegedly lying about the number and nature of his contacts with Journalist B. For example, in an email dated June 30, 2008, Kiriakou told Officer B that Kiriakou had spoken to the newspaper’s ombudsman after the article was published and said that the use of Officer B’s name was “despicable and unnecessary” and could put Officer B in danger. Kiriakou also denied that he had cooperated with the article and claimed that he had declined to talk to Journalist B, except to say that he believed the article absolutely should not mention Officer B’s name. “[W]hile it might not be illegal to name you, it would certainly be immoral,” Kiriakou wrote to Officer B, according to the affidavit.

From at least November 2007 through November 2008, Kiriakou allegedly provided Journalist A with Officer B’s personal contact information and disclosed to Journalist A classified information revealing Officer B’s association with the RDI Program. Just as Journalist A had disclosed to the defense investigator classified information that Kiriakou allegedly imparted about Covert Officer A, Journalist A, in turn, provided the defense investigator information that Kiriakou had disclosed about Officer B. For example, in an email dated April 10, 2008, Journalist A provided the defense investigator with Officer B’s home phone number, which, in light of Officer B’s common surname, allowed the investigator to quickly and accurately identify Officer B and photograph him. Both Officer B’s name and his association with the RDI Program were included in the January 2009 classified defense filing, and four photographs of Officer B were among the photos recovered at Guantanamo.

In the same recorded interview with FBI agents last week, Kiriakou said he “absolutely” considered Officer B’s association with the Abu Zubaydah operation classified, the affidavit states. Kiriakou also denied providing any contact information for Officer B or Officer B’s association with the Abu Zubaydah operation to Journalists A and B prior to publication of the June 2008 New York Times article. When specifically asked whether he had anything to do with providing Officer B’s name or other information about Officer B to Journalist B prior to the article, Kiriakou stated “Heavens no.”

As background, the affidavit states that sometime prior to May 22, 2007, Kiriakou disclosed to Journalist C classified information regarding Officer B’s association with Abu Zubaydah operation, apparently while collaborating on a preliminary book proposal. A footnote states that Journalist C is not the coauthor of the book Kiriakou eventually published.

Prior to publication of his book, The Reluctant Spy: My Secret Life in the CIA’s War on Terror, Kiriakou submitted a draft manuscript in July 2008 to the CIA’s Publication Review Board (PRB). In an attempt to trick the CIA into allowing him to publish information regarding a classified investigative technique, Kiriakou allegedly lied to the PRB by falsely claiming that the technique was fictional and that he had never heard of it before. In fact, according to a transcript of a recorded interview conducted in August 2007 to assist Kiriakou’s coauthor in drafting the book, Kiriakou described the technique, which he referred to as the “magic box,” and told his coauthor that the CIA had used the technique in the Abu Zubaydah operation. The technique was also disclosed in the June 2008 New York Times article and referred to as a “magic box.”

In his submission letter to the PRB, Kiriakou flagged the reference to a device called a “magic box,” stating he had read about it in the newspaper article but added that the information was “clearly fabricated,” as he was unaware of and had used no such device. The affidavit contains the contents of an August 2008 email that Kiriakou sent his coauthor admitting that he lied to the PRB in an attempt to include classified information in the book. The PRB subsequently informed Kiriakou that the draft manuscript contained classified information that he could not use, and information regarding the technique that Kiriakou included in the manuscript remained classified until it was recently declassified to allow Kiriakou’s prosecution to proceed.

Upon conviction, the count charging illegal disclosure of Covert Officer A’s identity to a person not authorized to receive classified information carries a maximum penalty of five years in prison, which must be imposed consecutively to any other prison term; the two counts charging violations of the Espionage Act each carry a maximum term of 10 years in prison; and making false statements carries a maximum prison term of five years. Each count carries a maximum fine of $250,000.

A complaint contains only allegations and is not evidence of guilt. The defendant is presumed innocent and is entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.

The government is being represented in court by Assistant U.S. Attorneys Iris Lan (Southern District of New York) and Mark E. Schneider (Northern District of Illinois), and Justice Department trial attorney Ryan Fayhee of the Counterespionage Section of the National Security Division. Assistant U.S. Attorney Lisa Owings (Eastern District of Virginia) will assist in the matter under local court rules.

Complaint Criminal and Affidavit – SIGNED.pdf


nationalsecuritylaw United States v. Kiriakou (E.D. Va. Jan. 23, 2012) (

January 23, 2012

Well, this is going to get a lot of attention. Prosecutors are charging a former CIA officer with “repeatedly disclosing classified information to journalists, including the name of a covert CIA officer and information revealing the role of another CIA employee in classified activities”—in connection with an incident at GTMO in which high-value detainees were found to have possession of photographs of certain government employees and contractors. The complaint alleges that the defendant passed the information to a defense team investigator, and that this in turn enabled the defense team to obtain or engage in surveillance resulting in the photographs.

The criminal complaint is attached, along with the underlying affidavit. From the DOJ press release:

The charges result from an investigation that was triggered by a classified defense filing in January 2009, which contained classified information the defense had not been given through official government channels, and, in part, by the discovery in the spring of 2009 of photographs of certain government employees and contractors in the materials of high-value detainees at Guantanamo Bay, Cuba. The investigation revealed that on multiple occasions, one of the journalists to whom Kiriakou is alleged to have illegally disclosed classified information, in turn, disclosed that information to a defense team investigator, and that this information was reflected in the classified defense filing and enabled the defense team to take or obtain surveillance photographs of government personnel. There are no allegations of criminal activity by any members of the defense team for the detainees.

Kiriakou, 47, of Arlington, Va., was a CIA intelligence officer between 1990 and 2004, serving at headquarters and in various classified overseas assignments. He is scheduled to appear at 2 p.m. today before U.S. Magistrate Judge John F. Anderson in federal court in Alexandria.

Kiriakou was charged with one count of violating the Intelligence Identities Protection Act for allegedly illegally disclosing the identity of a covert officer and two counts of violating the Espionage Act for allegedly illegally disclosing national defense information to individuals not authorized to receive it. Kiriakou was also charged with one count of making false statements for allegedly lying to the Publications Review Board of the CIA in an unsuccessful attempt to trick the CIA into allowing him to include classified information in a book he was seeking to publish.

The four-count criminal complaint, which was filed today in the Eastern District of Virginia, alleges that Kiriakou made illegal disclosures about two CIA employees and their involvement in classified operations to two journalists on multiple occasions between 2007 and 2009. In one case, revealing the employee’s name as a CIA officer disclosed classified information as the employee was and remains covert (identified in the complaint as “Covert Officer A”). In the second case, Kiriakou allegedly disclosed the name and contact information of an employee, identified in the complaint as “Officer B,” whose participation in an operation to capture and question terrorism subject Abu Zubaydah in 2002 was then classified. Kiriakou’s alleged disclosures occurred prior to a June 2008 front-page story in The New York Times disclosing Officer B’s alleged role in the Abu Zubaydah operation.

The CIA filed a crimes report with the Justice Department on March 19, 2009, prior to the discovery of the photographs and after reviewing the Jan. 19, 2009, classified filing by defense counsel for certain detainees with the military commission then responsible for adjudicating charges. The defense filing contained information relating to the identities and activities of covert government personnel, but prior to Jan. 19, 2009, there had been no authorized disclosure to defense counsel of the classified information. The Justice Department’s National Security Division, working with the FBI, began the investigation. To avoid the risk of encountering a conflict of interest because of the pending prosecutions of some of the high-value detainees, Mr. Fitzgerald was assigned to supervise the investigation conducted by a team of attorneys from the Southern District of New York, the Northern District of Illinois and the Counterespionage Section of the National Security Division who were not involved in pending prosecutions of the detainees.

According to the complaint affidavit, the investigation determined that no laws were broken by the defense team as no law prohibited defense counsel from filing a classified document under seal outlining for a court classified information they had learned during the course of their investigation. Regarding the 32 pages of photographs that were taken or obtained by the defense team and provided to the detainees, the investigation found no evidence the defense attorneys transmitting the photographs were aware of, much less disclosed, the identities of the persons depicted in particular photographs and no evidence that the defense team disclosed other classified matters associated with certain of those individuals to the detainees. The defense team did not take photographs of persons known or believed to be current covert officers. Rather, defense counsel, using a technique known as a double-blind photo lineup, provided photograph spreads of unidentified individuals to their clients to determine whether they recognized anyone who may have participated in questioning them. No law or military commission order expressly prohibited defense counsel from providing their clients with these photo spreads.

Further investigation, based in part on emails recovered from judicially-authorized search warrants served on two email accounts associated with Kiriakou, allegedly revealed that:

• Kiriakou disclosed to Journalist A the name of Covert Officer A and the fact that Covert Officer A was involved in a particular classified operation. The journalist then provided the defense investigator with the full name of the covert CIA employee;

• Kiriakou disclosed or confirmed to Journalists A, B and C the then-classified information that Officer B participated in the Abu Zubaydah operation and provided two of those journalists with contact information for Officer B, including a personal email address. One of the journalists subsequently provided the defense investigator with Officer B’s home telephone number, which the investigator used to identify and photograph Officer B; and

• Kiriakou lied to the CIA regarding the existence and use of a classified technique, referred to as a “magic box,” in an unsuccessful effort to trick the CIA into allowing him to publish information about the classified technique in a book.

Upon joining the CIA in 1990 and on multiple occasions in following years, Kiriakou signed secrecy and non-disclosure agreements not to disclose classified information to unauthorized individuals.

Regarding Covert Officer A, the affidavit details a series of email communications between Kiriakou and Journalist A in July and August 2008. In an exchange of emails on July 11, 2008, Kiriakou allegedly illegally confirmed for Journalist A that Covert Officer A, whose first name only was exchanged at that point, was “the team leader on [specific operation].” On Aug. 18, 2008, Journalist A sent Kiriakou an email asking if Kiriakou could pick out Covert Officer A’s last name from a list of names Journalist A provided in the email. On Aug. 19, 2008, Kiriakou allegedly passed the last name of Covert Officer A to Journalist A by email, stating “It came to me last night.” Covert Officer A’s last name had not been on the list provided by Journalist A. Later that same day, approximately two hours later, Journalist A sent an email to the defense investigator that contained Covert Officer A’s full name. Neither Journalist A, nor any other journalist to the government’s knowledge, has published the name of Covert Officer A.

At the time of Kiriakou’s allegedly unauthorized disclosures to Journalist A, the identification of Covert Officer A as “the team leader on [specific operation]” was classified at the Top Secret/Sensitive Compartmented Information (SCI) level because it revealed both Covert Officer A’s identity and his association with the CIA’s Rendition, Detention and Interrogation (RDI) Program relating to the capture, detention and questioning of terrorism subjects. The defense investigator was able to identify Covert Officer A only after receiving the email from Journalist A, and both Covert Officer A’s name and association with the RDI Program were included in the January 2009 classified defense filing. The defense investigator told the government that he understood from the circumstances that Covert Officer A was a covert employee and, accordingly, did not take his photograph. No photograph of Covert Officer A was recovered from the detainees at Guantanamo.

In a recorded interview last Thursday, FBI agents told Kiriakou that Covert Officer A’s name was included in the classified defense filing. The affidavit states Kiriakou said, among other things, “How the heck did they get him? . . . [First name of Covert Officer A] was always undercover. His entire career was undercover.” Kiriakou further stated that he never provided Covert Officer A’s name or any other information about Covert Officer A to any journalist and stated “Once they get the names, I mean this is scary.”

Regarding Officer B, the affidavit states that he worked overseas with Kiriakou on an operation to locate and capture Abu Zubaydah, and Officer B’s association with the RDI Program and the Abu Zubaydah operation in particular were classified until that information was recently declassified to allow the prosecution of Kiriakou to proceed.

In June 2008, The New York Times published an article by Journalist B entitled “Inside the Interrogation of a 9/11 Mastermind,” which publicly identified Officer B and reported his alleged role in the capture and questioning of Abu Zubaydah – facts which were then classified. The article attributed other information to Kiriakou as a source, but did not identify the source(s) who disclosed or confirmed Officer B’s identity. The charges allege that at various times prior to publication of the article, Kiriakou provided Journalist B with personal information regarding Officer B, knowing that Journalist B was seeking to identify and locate Officer B. In doing so, Kiriakou allegedly confirmed classified information that Officer B was involved in the Abu Zubaydah operation. For example, Kiriakou allegedly emailed Officer B’s phone number and personal email address to Journalist B, who attempted to contact Officer B via his personal email in April and May 2008. Officer B had provided his personal email address to Kiriakou, but not to Journalist B or any other journalist. Subsequently, Kiriakou allegedly revealed classified information by confirming for Journalist B additional information that an individual with Officer B’s name, who was associated with particular contact information that Journalist B had found on a website, was located in Pakistan in March 2002, which was where and when the Abu Zubaydah operation took place.

After The New York Times article was published, Kiriakou sent several emails denying that he was the source for information regarding Officer B, while, at the same time, allegedly lying about the number and nature of his contacts with Journalist B. For example, in an email dated June 30, 2008, Kiriakou told Officer B that Kiriakou had spoken to the newspaper’s ombudsman after the article was published and said that the use of Officer B’s name was “despicable and unnecessary” and could put Officer B in danger. Kiriakou also denied that he had cooperated with the article and claimed that he had declined to talk to Journalist B, except to say that he believed the article absolutely should not mention Officer B’s name. “[W]hile it might not be illegal to name you, it would certainly be immoral,” Kiriakou wrote to Officer B, according to the affidavit.

From at least November 2007 through November 2008, Kiriakou allegedly provided Journalist A with Officer B’s personal contact information and disclosed to Journalist A classified information revealing Officer B’s association with the RDI Program. Just as Journalist A had disclosed to the defense investigator classified information that Kiriakou allegedly imparted about Covert Officer A, Journalist A, in turn, provided the defense investigator information that Kiriakou had disclosed about Officer B. For example, in an email dated April 10, 2008, Journalist A provided the defense investigator with Officer B’s home phone number, which, in light of Officer B’s common surname, allowed the investigator to quickly and accurately identify Officer B and photograph him. Both Officer B’s name and his association with the RDI Program were included in the January 2009 classified defense filing, and four photographs of Officer B were among the photos recovered at Guantanamo.

In the same recorded interview with FBI agents last week, Kiriakou said he “absolutely” considered Officer B’s association with the Abu Zubaydah operation classified, the affidavit states. Kiriakou also denied providing any contact information for Officer B or Officer B’s association with the Abu Zubaydah operation to Journalists A and B prior to publication of the June 2008 New York Times article. When specifically asked whether he had anything to do with providing Officer B’s name or other information about Officer B to Journalist B prior to the article, Kiriakou stated “Heavens no.”

As background, the affidavit states that sometime prior to May 22, 2007, Kiriakou disclosed to Journalist C classified information regarding Officer B’s association with Abu Zubaydah operation, apparently while collaborating on a preliminary book proposal. A footnote states that Journalist C is not the coauthor of the book Kiriakou eventually published.

Prior to publication of his book, The Reluctant Spy: My Secret Life in the CIA’s War on Terror, Kiriakou submitted a draft manuscript in July 2008 to the CIA’s Publication Review Board (PRB). In an attempt to trick the CIA into allowing him to publish information regarding a classified investigative technique, Kiriakou allegedly lied to the PRB by falsely claiming that the technique was fictional and that he had never heard of it before. In fact, according to a transcript of a recorded interview conducted in August 2007 to assist Kiriakou’s coauthor in drafting the book, Kiriakou described the technique, which he referred to as the “magic box,” and told his coauthor that the CIA had used the technique in the Abu Zubaydah operation. The technique was also disclosed in the June 2008 New York Times article and referred to as a “magic box.”

In his submission letter to the PRB, Kiriakou flagged the reference to a device called a “magic box,” stating he had read about it in the newspaper article but added that the information was “clearly fabricated,” as he was unaware of and had used no such device. The affidavit contains the contents of an August 2008 email that Kiriakou sent his coauthor admitting that he lied to the PRB in an attempt to include classified information in the book. The PRB subsequently informed Kiriakou that the draft manuscript contained classified information that he could not use, and information regarding the technique that Kiriakou included in the manuscript remained classified until it was recently declassified to allow Kiriakou’s prosecution to proceed.

Upon conviction, the count charging illegal disclosure of Covert Officer A’s identity to a person not authorized to receive classified information carries a maximum penalty of five years in prison, which must be imposed consecutively to any other prison term; the two counts charging violations of the Espionage Act each carry a maximum term of 10 years in prison; and making false statements carries a maximum prison term of five years. Each count carries a maximum fine of $250,000.

A complaint contains only allegations and is not evidence of guilt. The defendant is presumed innocent and is entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt.

The government is being represented in court by Assistant U.S. Attorneys Iris Lan (Southern District of New York) and Mark E. Schneider (Northern District of Illinois), and Justice Department trial attorney Ryan Fayhee of the Counterespionage Section of the National Security Division. Assistant U.S. Attorney Lisa Owings (Eastern District of Virginia) will assist in the matter under local court rules.

Complaint Criminal and Affidavit – SIGNED.pdf


nationalsecuritylaw United States v. Mahamud (D. Minn. Jan. 18, 2012) (denying FISA suppression motion)

January 20, 2012

* United States v. Mahamud (D. Minn. Jan. 18, 2012) (denying FISA suppression motion)

In a case involving the prosecution of a man linked to al Shabaab (on charges go conspiring to provide and actually providing material support to that group), Chief Judge Davis has issued a brief opinion denying the defendant’s motion to suppress the fruits of electronic surveillance and physical searches conducted pursuant to FISA. Nothing novel or unusual here, but I am passing the opinion along for teachers and students who might find it instructive that the opinion contains a pithy rundown of the issues and standards and such matters arise.

United States District Court,

D. Minnesota.

UNITED STATES of America, Plaintiff,

v.

Ahmed Hussein MAHAMUD, Defendant.

Criminal No. 11–191.

Jan. 18, 2012.

John Docherty and Charles Kovats, Assistant United States Attorneys and William M. Narus, U.S. Department of Justice, for Plaintiff.

Rick E. Mattox, Mattox Law Office, for Defendant.

MEMORANDUM OPINION AND ORDER

MICHAEL J. DAVIS, Chief Judge.

Defendant has been charged by Indictment with conspiracy to provide, and providing, material support to terrorists and conspiracy to provide, and providing, material support to a Foreign Terrorist Organization (“FTO”). The government has provided notice to the Court and to the Defendant pursuant to 50 U.S.C § 1806(c) and 1825(d) that it intends to introduce at trial evidence obtained and derived from electronic surveillance, 50 U.S.C. § 18011812, and evidence obtained from physical searches. 50 U.S.C. § 18211829.

Defendant has filed a motion to suppress any evidence illegally obtained by wire surveillance, based on intercepted electronic communications obtained under the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., and has moved for disclosure of all evidence related to the electronic surveillance. (Doc. Nos. 39 and 40.)In response, the government has filed a classified, as well as a redacted, unclassified memorandum opposing the motions. The Defendant’s motions have triggered this Court’s review of the FISA applications and orders pursuant to 50 U.S.C. § 1806(f) to determine whether the surveillance was lawfully authorized and conducted.

I. Foreign Intelligence Surveillance Act

FISA governs electronic surveillance and physical searches within the United States for foreign intelligence purposes. Each application for a warrant pursuant to FISA shall include the following:

(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 …

50 U.S.C. § 1804(a).

The application should also include a certification from the appropriate 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 section 1801(e) of this title; and

(E) including a statement of the basis for the certification that—

(I) the information sought is the type of foreign intelligence information designated; and

(ii) such information cannot reasonably be obtained by normal investigative techniques …

Id. § 1804(6).

Finally, the application should include a summary of the surveillance to be conducted and whether a physical entry is required, whether “previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application” and the time period for which surveillance is needed. Id. § 1804(a)(7)-(9).

When reviewing a request for a warrant, the FISA Court must find 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.’“ United States v. AbuJihaad, 630 F.3d 102,117–18 (2d Cir.2010) (quoting 50 U.S.C. § 1805(a)(2)).

FISA further provides that the target of surveillance “may move to suppress the evidence on the grounds that [it] was unlawfully acquired or the surveillance was not made inconformity with [a FISA] order …”50 U.S.C. § 1806(e). Where such a motion is filed, or a motion to discover or obtain FISA applications or orders is made, the court must, upon the filing of an affidavit from the Attorney General that disclosure of such material or an adversary hearing would harm national security,

review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.

Section 1806(f).

II. Motion to Disclose

Defendant moves for an Order directing the government to disclose and to certify the extent of electronic surveillance used by the government in any phase of its investigation of him. Disclosure of such materials is warranted “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”50 U.S.C. § 1806(f). Where the court “determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.”Id. (citing 50 U.S.C. § 1806(g)). Disclosure is thus “the exception and ex parte, in camera determination is the rule. AbuJihaad, 630 F.3d at 129 (internal citations omitted).

In this case, Attorney General Eric Holder has filed an affidavit dated January 5 2012, declaring that disclosure of classified material or an adversary proceeding concerning such material would harm national security. (Government’s Memorandum in Opposition, Exhibit 1) The Court has thus conducted an ex parte, in camera review of the applicable FISA applications, orders and related materials as provided in § 1806(f).

In determining whether disclosure is necessary, the Court should consider whether, after its initial review, any irregularities are revealed, such as whether: the materials evidence a possible misrepresentation of fact; the persons to be surveilled are not clearly identified; or the surveillance records include a significant amount of nonforeign intelligence information, indicating a possible issue with the minimization standards utilized. United States v. Warsame, 547 F.Supp.2d 982, 987 (D.Minn.2008) (quoting United States v. Belfield, 692 F.2d 141, 147 (D.C.Cir.1982)). Based on its ex parte, in camera review, no such irregularities were revealed. The Court thus finds that disclosure of the materials is not necessary to make an accurate determination of the legality of the surveillance.

III. Motion to Suppress

Defendant has moved to suppress any evidence obtained directly or indirectly from the interception of electronic communications on the grounds that such interceptions were obtained in violation of his rights under the Fourth Amendment and his legal rights under 18 U.S.C. § 2510 and 50 U.S.C. § 1806(e). Defendant furthers argue that to the extent the government offers information to the Court in camera on the legal authority to intercept communications in this case, the Defendant objects that such proceedings deprive him of his rights to due process under the Fifth Amendment.

A. Statutory Requirements

When reviewing FISA applications and orders to determine compliance with FISA procedures, the Court must keep in mind that “FISA warrants are subject to ‘minimal scrutiny by the courts,’ both upon initial presentation and subsequent challenge.”AbuJihaad, 630 F.3d at 130 (quoting United States v. Duggan, 743 F.2d 59, 77 (2d Cir.1984)). When reviewing a FISA warrant, the FISA Court considers whether the application makes the proper probable cause showing that the target of the warrant is a foreign power or an agent of a foreign power and that the facilities or places to be searched or surveilled are being used by the foreign power/agent, whether the application is otherwise proper, and when the target is a United States citizen, whether the application’s certifications are not clearly erroneous. Id. When reviewing a FISA Court Order, the reviewing court must presume as valid “ ‘the representations and certifications submitted in support of an application for FISA surveillance …’“ absent a showing sufficient to trigger a Franks hearing FN1.”Id.

FN1. In Franks v. Delaware, the United States Supreme Court held that to be entitled to a hearing to challenge the veracity of a warrant affidavit, a defendant must first make a showing that the affidavit contains deliberate falsehoods or statements made with a reckless disregard of the truth, and an accompanying offer of proof. 438 U.S. 154, 171 (1978).

With this standard in mind, the Court has thoroughly reviewed the FISA applications, orders and related materials, as well as the government’s classified memorandum in opposition to the motions to suppress and for disclosure. As discussed below, the Court finds that both the applications and orders complied with all requirements set forth in 50 U.S.C. § 1805(a) and there has been no showing to trigger a Franks hearing.

1. Certification

The FISA applications and orders in this case satisfy the statutory requirements set forth in 50 U.S.C. §§ 1804(a) and 1805(a). The applications were made by a federal officer and were approved by the Attorney General or his authorized designate. Further, the applications contain the required statements and certifications. Also, no showing has been made which provides a basis to find that any of the facts contained in the FISA application are false or were made with reckless disregard for the truth.

2. Minimization Procedures

The minimization procedures contained in the FISA applications must comply with Section 1801(h), which provides:

“Minimization procedures”, with respect to electronic surveillance, means—

(1) 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;

(2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;

(3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and

(4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

After carefully reviewing the minimization procedures described in the FISA applications, the Court finds that such procedures comply with the statutory requirements set forth in Section 1801(h). The Court further finds that the government followed these procedures to appropriately minimize the information it obtained.

3. Probable Cause

In reviewing a FISA application, the FISA Court is to determine whether the application establishes probable cause 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; 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.”50 U.S.C. § 1805(a)(2).

In making the probable cause determination, the FISA Court may also “consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target .”Id. § 1805(b). “Foreign power” is not limited to a foreign government, it also includes a “group engaged in international terrorism or activities in preparation therefor.”§§ 1801(a) and 1821(1). Further, an “agent of a foreign power” is one who “knowingly engages in sabotage or international terrorism, or activities in preparation therefor, for or on behalf of a foreign power” and “anyone who knowingly aids, abets, or conspires with any person to engage in the activities described in the Act.”Id.§§ 1801(b)(2) and 1821(1). Finally, “international terrorism” is defined as including conduct that “involve[s] a violent act[ ] or act[ ] dangerous to human life that are a violation of the criminal laws of the United States” that appears intended to “intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by assassination or kidnaping; and occurs totally outside the United States or transcend national boundaries.”Id.§§ 1801(c) and 1821(1).

There is no agreement among the federal courts as to whether the probable cause determination is made de novo or if a deferential standard is applied. See AbuJihaad, 630 F.3d at 130; Warsame, 547 F.Supp.2d at 990 (court reviewed probable cause determination de novo, given that the Court’s review is ex parte ). Even applying a de novo review, however, the Court finds that there was sufficient probable cause set forth in the applications and related materials that Defendant was an agent of a foreign power, al-Shabaab, and that the places to be searched or to be surveilled were being used by Defendant.

D. Timing

Finally, Defendant raises concern that the government did not follow the time limits of surveillance. Based on its ex parte, in camera review, the Court finds that the government complied with the time limits of surveillance set forth in the applicable orders.

Based on the above, the Court finds that Defendant’s motion to suppress any evidence obtained directly or indirectly from the interception of electronic communications on the grounds that the FISA applications and orders did not meet the statutory requirements of FISA must be denied.

B. Fourth Amendment

Defendant argues that any evidence obtained directly or indirectly from the interception of electronic communications should be suppressed as such evidence was obtained in violation of his Fourth Amendment rights. To the extent that Defendant’s motion is based on the arguably lower probable cause standard applied to FISA applications, many courts, including the Eighth Circuit, have found that the probable cause standard set forth in FISA does not violate the Fourth Amendment. See United States v. Duka, ––– F.3d ––––, 2011 WL 6794022, at *4 (3d Cir. Dec. 28, 2011) (rejecting defendant’s constitutional challenges to FISA under the Fourth Amendment); AbuJihaad, 630 F.3d at 120; United States v. Isa, 923 F.2d 1300,1304 (8th Cir.1991); Warsame, 547 F.Supp.2d at 993–94. Accordingly, to the extent the Defendant’s constitutional challenge is based on the probable cause standard set forth in FISA, the motion must be denied.

To the extent that Defendant’s motion is based on the argument that the “significant purpose” test violates the Fourth Amendment because there is no requirement of a probable cause showing that a crime is being committed, this argument has also been rejected by a number of courts. See, e.g., Dukas, 2011 WL 6794022, at *10;AbuJihaad, 630 F.3d at 127; Warsame, 547 F.Supp.2d at 995 (noting that courts addressing this issue, save one, have upheld FISA as consistent with the requirements of the Fourth Amendment). Based on the applicable law, the Court is satisfied that FISA’s significant purpose requirement is consistent with the Fourth Amendment’s protections against unreasonable searches and seizures.

C. Fifth Amendment

Defendant argues that to the extent the government intends to offer information to the Court in camera on their legal authority to intercept his communications, such procedure deprives him of his right to due process in violation of the Fifth Amendment. This argument has also been rejected on many occasions, on the basis that the ex parte, in camera review satisfies due process. See, e.g., Abu–Jihaad, 630 F.3d 129 (finding that the court’s ex parte, in camera review permitted it to assess the legality of the surveillance and the requirements of due process did not counsel otherwise); United States v. Damrah, 412 F.3d 618, 624; United States v. Ott, 827 F.2d 473, 476–77 (9th Cir.1987); Warsame, 547 F.Supp.2d at 988–89. This Court is also satisfied that its review of the FISA materials permitted the Court to adequately assess the legality of the surveillance, and that due process did not counsel otherwise. Accordingly, the motion to suppress based on a violation of the Fifth Amendment will be denied.

IV. Motion for Discovery

Finally, Defendant seeks to inspect the facility where the original tapes or data was stored, and to inspect the sealing orders and logs for such data. Defendant does not provide any authority to support these requests. As discussed previously in this Memorandum Opinion, FISA prohibits disclosure of material obtained or derived thereunder, unless constitutionally required by due process or Brady v. Maryland.

In Isa, the Eighth Circuit rejected the argument that evidence obtained through FISA warrants should have been suppressed because the government did not provide minimization logs of the entire surveillance. 923 F.2d at 1305–06. The court found that FISA did “not require that a target be provided the minimization logs of the entire surveillance. Indeed, specific provisions of the Act suggest the contrary.” Id. at 1306.Accordingly, this motion will be denied.

IT IS HEREBY ORDERED:

1. Defendant’s Motion for Discovery and Inspection of Products and Records of Electronic Surveillance [Doc. No. 39] is DENIED to the extent the motion seeks classified material;

2. Defendant’s Motion to Suppress Evidence Obtained by Wire Surveillance [Doc. No. 40] is DENIED.