FAA NOTIFICATION: HOW THE GOVERNMENT INSULATED ITS PROGRAM FROM JUDICIAL REVIEW

AND WHY COURTS SHOULD REOPEN THE CASES OF AGGRIEVED CRIMINAL DEFENDANTS
**Alexa McCallum
I. INTRODUCTION
On February 24, 2014, Agron Hasbajramia criminal defendant accused in 2011 of
supporting terrorismreceived notification from the Department of Justice that his case was
built in part on evidence collected pursuant to the National Security Agencys sweeping
warrantless surveillance program.
1
This information gave Mr. Hasbajrami strong grounds to
challenge the admissibility of such evidence as well as the constitutionality of the controversial
surveillance program. The only problemMr. Hasbajrami had already pleaded guilty in April
2012.
2

Why the belated notification? Until the fall of 2013, the Department of Justice (DOJ)
had a policy against providing notice to defendants in criminal prosecutions.
3
The Solicitor
General initiated the change in policy after he learned of the DOJs practices and determined
they could not legally be justified. However, the convergence of two factors staged the
change---the discloses of Edward Snowden and the Supreme Courts decision in Clapper v.
Amnesty Int'l USA,
4
which narrowly construed standing to challenge the law. To date, four
criminal defendants have received DOJ notification; of those notified, Mr. Hasbajrami is the only

1
JUSTICE.GOV, http://www.justice.gov/usao/nye/pr/2013/2013jan08.html.
2
Id.
3
Charlie Savage, Door May Open for Challenge to Secret Wiretaps, NYTIMES.COM (Oct.
17, 2013), http://www.nytimes.com/2013/10/17/us/politics/us-legal-shift-may-open-door-for-
challenge-to-secret-wiretaps.html?pagewanted=2&_r=0&pagewanted=print.
4
133 S. Ct. 1138 (2013)
defendant who has pled guilty. This piece argues that defendants receiving belated notification
should be allowed to withdraw their pleas, and challenge evidence collected pursuant to
warrantless surveillance orders. Given how executive officials utilized procedures to insulate the
warrantless surveillance program from adversarial testing, the time is ripe for courts to explore
constitutional limitations on the ability of the government to gather information on domestic
persons without a warrant.
This piece unfolds in three parts. Part II examines the history of the Foreign Intelligence
Surveillance Act (FISA) and the FISA Amendments Act of 2008 (FAA). Next, in Part III,
the piece examines the statutory provisions governing the use of FISA and FAA information in
criminal proceedings. It then compares these statutory requirements with the DOJs actual
notification practices and discusses the events that animated the eventual change in policy.
Finally, Part III analyzes the four criminal defendants who have received DOJ notification and
argues that defendants receiving belated notices should be able to reopen their cases to
challenge warrantless surveillance practices. Part IV concludes.
II. BACKGROUND:
A. THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
Congress enacted the Foreign Intelligence Surveillance Act in 1978 to regulate government
surveillance carried out for purposes of foreign intelligence-gathering. In large part, FISA
responded to allegations made in a report of the Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities (the Church Committee).
5
The Church
Committees report centered on concerns relating to executive branch abuses of power in the

5
FJC.GOV, http://www.fjc.gov/history/home.nsf/page/courts_special_fisc.html.
context of domestic electronic surveillance for national security purposes.
6
FISA sought to curb
these abuses by requiring the government to comply with certain procedures before conducting
electronic surveillance. Although the current version of FISA regulates intelligence gathering
through the use of electronic surveillance, physical searches, and pen registers or trap and trace
devices, the 1978 Act dealt only with electronic surveillance.
7
FISA defines electronic
surveillance broadly as the acquisition by an electronic, mechanical, or other surveillance
device of the contents of any wire communication to or from a person in the United States,
without the consent of any party thereto, if such acquisition occurs in the United States.
8
The
original provisions governing electronic surveillance are codified in subchapter I, sections 1801
through 1812.
The Act also established the Foreign Intelligence Surveillance Court (FISC) and vested it
with the authority to review and grant government applications for electronic surveillance orders.
Prior to the passage of the FAA in 2008, the government had to satisfy the requirements of
Subchapter I before obtaining a surveillance order. To secure a traditional FISA order, the
government must make an individualized and particularized showing. For example, the
government must assert its basis for believing that the target of the electronic surveillance is a
foreign power or an agent of foreign power and that each of the . . . places at which the
electronic surveillance is directed is being used . . . by a foreign power.
9


6
http://www.fjc.gov/history/home.nsf/page/courts_special_fisc.html
7
http://www.fas.org/sgp/crs/intel/RL34279.pdf.
8
50 U.S.C 1801(f)(2).
9
50 U.S.C 1802.
Pursuant to subchapter I, the FISC may issue a FISA order upon a probable cause
determination, inter alia, that the target of surveillance is a foreign power or a foreign powers
agent and these individuals are using or are about to use the places at which surveillance is
directed.
10
The 1978 version of FISA was not conducive to widespread intelligence gathering
and aggregation for purposes of later identifying a target of surveillance. Rather, it envisioned
case-specific surveillance, not a generic surveillance operation, and its approval architecture was
accordingly geared to specific, narrowly targeted applications.
11
B. FISA AMENDMENTS ACT OF 2008
Ultimately, the decades-old version of FISA proved unwieldy in the face of the September
11th terrorist attacks. The Bush administration found that traditional FISA procedures interfered
with the speed and agility necessary to proactively identify terrorist threats.
12
Consequently,
President Bush authorized the National Security Agency (NSA) to engage in warrantless
electronic surveillance of domestic persons when the government had a reasonable basis to
conclude that the person was affiliated with Al Qaeda.
13
Although the program was ultimately
exposed and abandoned, the Bush administration pressed Congress to amend FISA. During a
time of constitutional uncertainty regarding the Bush Administration's implementation of a

10
50 U.S.C 1805(a)(2).
11
William C. Banks, Programmatic Surveillance and Fisa: Of Needles in Haystacks, 88
TEX. L. REV. 1633, 1638-39 (2010).
12
Id.
13
Anthony M. Shults, The "Surveil or Kill" Dilemma: Separation of Powers and the Fisa
Amendments Act's Warrant Requirement for Surveillance of U.S. Citizens Abroad, 86 N.Y.U. L.
REV. 1590, 1600 (2011).
widespread warrantless surveillance program inside the United States as part of the war on
terror, Congress enacted the FAA.
14

The FAA left many FISA provisions intact, including Subsection 1, but it established a new
and independent source of intelligence collection authority, beyond that granted in traditional
FISA.
15
Namely, Title VII of FISA, now codified at 50 USC 1881a and added through
Section 702 of the FAA, created new procedures under which the government could obtain a
surveillance order targeting non-U.S. persons located abroad.
16
Unlike the requirements set forth
in the original FISA, section 1881a of FISA does not require the FISC to find probable cause that
the target of the electronic surveillance is a foreign power or agent of a foreign power.
17

Moreover, section 1881a does not require the Government to specify the nature and location of
each facility or place at which the electronic surveillance will be directed.
18

Instead, the government asks the FISC to approve the targeting and minimization
procedures that it plans to use when conducting the surveillance.
19
The government must show
that the procedures are reasonably designed to ensure that intelligence gathering is limited to
targeting persons reasonably believed to be outside the U.S. and to prevent the intentional
interception of communications between persons on U.S. soil.
20
Unlike the traditional FISA

14
Id.
15
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1154 (2013)
16
Id.
17
Compare 1805(a)(2)(A), (a)(2)(B), with 1881a(d)(1), (i)(3)(A).
18
Compare 1805(a)(2)(B), (c)(1), with 1881a(d)(1), (g)(4), (i)(3)(A).
19
50 U.S.C 1881a (c)(g).
20
Id.
orders requiring particularized suspicion predicated on probable cause, the FISC will issue a
surveillance order under the FAA if it approves the governments procedures alone.
In short, the FAA allows government officials to implement warrantless surveillance
programs, even domestically, provided the program is tangentially related to targeting those
abroad. As Americans know all too well after Edward Snowdens revelations, domestic citizens
also become the easy targets of electronic surveillance orders.
III. ANALYSIS
Given the breadth FAA surveillance orders, it is inevitable that the government will
intercept combinations that relate to the criminal activity of persons on U.S. soil. What happens
when the government collects evidence pursuant to an FAA order that is relevant to building a
criminal case against a person residing domestically? This section explores that question. First it
looks at the relevant FISA and FAA provisions that govern the use of FISA/FAA evidence in
criminal proceedings. Next, it examines the Justice Departments notification practices and
analyzes the events that ultimately lead to a reversal of policy. Finally, this Part argues that
criminal defendants who were deprived of notice should be allowed to withdraw their pleas and
challenge the admissibility of FAA evidence if they so choose.
A. THE ADMISSIBILITY OF FISA AND FAA EVIDENCE IN DOMESTIC CRIMINAL PROCEEDINGS
Subchapter I, section 1806 of FISA sets forth the procedures surrounding the use of evidence
collected pursuant to a FISA surveillance order. The Act specifically provides that the
government shall provide prior notice to the defendant of its intent to use FISA evidence.
21

Once the government provides notice, the defendant may move to suppress evidence obtained

21
50 U.S.C 1806(d).
or derived from the electronic surveillance on the grounds that it was unlawfully acquired or the
surveillance itself did not conform to the authorizing order.
22

Where the challenge relates to evidence that is sensitive in nature, the act permits the court to
conduct an ex parte and in camera review of the evidence, including FISA applications, orders,
and other surveillance information, for purposes of assessing its legality.
23
Under appropriate
security procedures, the court may disclose to the defendant certain materials that are necessary
to make an accurate determination of the legality of the surveillance.
24
If the surveillance was
not lawfully authorized or conducted, the court shall suppress the evidence.
25

The procedures set forth in Subchapter I, section 1806 are also applicable under section
1881a of the FAA.
26
The FAA explicitly states that [i]nformation acquired from an acquisition
conducted under section 1881a of this title shall be deemed to be information acquired from an
electronic surveillance pursuant to subchapter I for purposes of section 1806.
27
Simply put,
whether evidence is collected pursuant a traditional FISA surveillance order or an order
authorizing surveillance under section 1881a of the FAA, the government must follow the same
procedures when it intends to use such evidence in criminal proceedings. However, as described
in the next section, the governments practices differed from the clear mandate of law.

22
Id. at 1806(e).
23
Id. at 1806(e).
24
Id.
25
Id.
26
Recall the absence of any probable cause requirement under the FAA.
27
50 U.S.C 1881(e).
B. A SHIFT IN POLICY LONG OVERDUE
For the first time in the law five-year history, The New York Times announced in the Fall of
2013 that the Justice Departments planned to notify a criminal defendant of its intent to use
evidence obtained pursuant to a warrantless surveillance order under section 1881a of the FAA.
28

This marked a shift in policy as the DOJ previously withheld notice in cases involving section
1881a evidence. The change is best understood in context as several independent events
prompted the Justice Department to reevaluate its notification practices.
After the FAAs enactment, the American Civil Liberties Union (ACLU) filed an action on
behalf of various individuals who believed they had been subject to section 1881a surveillance.
Although the plaintiffs mounted various constitutional challenges to the law, the matter
ultimately turned on the issue of standing.
29
Before the Supreme Court, the plaintiffs advanced
the argument that standing could never be established because section 1881a surveillance was
conducted secretly. At oral arguments and in his brief, Solicitor General Donald B. Verrilli
Jr. represented
If the government intends to use or disclose any information obtained or derived
from its acquisition of a person's communications under Section 1881a in judicial
or administrative proceedings against that person, it must provide advance notice
of its intent to the tribunal and the person, whether or not the person was targeted
for surveillance under Section 1881a. That person may then challenge the use of
that information in district court by challenging the lawfulness of the Section
1881a acquisition.
30


28
Charlie Savage, Door May Open for Challenge to Secret Wiretaps, NYTIMES.COM (Oct.
17, 2013), http://www.nytimes.com/2013/10/17/us/politics/us-legal-shift-may-open-door-for-
challenge-to-secret-wiretaps.html?pagewanted=2&_r=0&pagewanted=print.
29
See Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013).
30
Br. of Pet, Clapper v. Amnesty International USA, 2012 WL 3090949 (U.S.), 8 (U.S.
2012).
In its February, 2013 opinion, the Supreme Court held in a five to four vote that the plaintiffs
lacked standing. Evidently, the court was swayed by the Solicitor Generals argument as it
explained: if the Government intends to use or disclose information obtained or derived from a
1881a acquisition in judicial or administrative proceedings, it must provide advance notice of
its intent, and the affected person may challenge the lawfulness of the acquisition.
31

But as events unfolded, the disparity between the Solicitor Generals representations and the
actual practices of the DOJ came to light.
During the debates over whether to extend the FAA, Senator Dianne Feinstein listed
several cases involving terrorism to exemplify how the program has worked.
32
Feinsteins
statement caught the attention of defense attorneys in two of the cases mentioned, who
demanded to know whether section 1881a evidence was used in their cases.
33
After Florida
prosecutors refused to disclose this information, The New York Times printed an article in June
that referenced the clashing positions of the Solicitor General on the one hand, and the Florida
prosecutors on the other.
Concerned over the incompatible approached, Mr. Verrilli sought an explanation from
national security lawyers who had helped him prepare his case before the Supreme Court.
34

Pointing to a self-serving construction of the FISA notification statute, the national security

31
Clapper, 133 S. Ct. at 1154.
32
Schmitt et. al, Schmitt Administration Says Mining of Data Is Crucial to Fight Terror,
NYTIMES.COM (June 7, 2013), http://www.nytimes.com/2013/06/08/us/mining-of-data-is-called-
crucial-to-fight-terror.html?pagewanted=1&_r=1.
33
Id.
34
Charlie Savage, Door May Open for Challenge to Secret Wiretaps, NYTIMES.COM (Oct.
17, 2013), http://www.nytimes.com/2013/10/17/us/politics/us-legal-shift-may-open-door-for-
challenge-to-secret-wiretaps.html?pagewanted=2&_r=0&pagewanted=print.
lawyers represented that the inconsistency was a misunderstanding. In any event, the DOJs
notification policy was a point of internal debate throughout the summer of 2013.
35
One side of
the debate, national security lawyers contended that notification would tip off foreign targets and
discourage intelligence agencies from sharing information with law enforcement.
36
Meanwhile,
Mr. Verrilli concluded that withholding notification could not be justified legally.
37
Ultimately,
Mr. Verrillis argument proved more convincing as officials now purport that the governments
new policy favors notification.
38

While Solicitor General Verrilli played an important role in initiating the change, the
passage of the new policy was likely predicated on the interaction between two factorsthe
Snowden leaks and the Clapper decision. The arguments over the DOJ notification policy
paralleled debate over Edward Snowdens disclosures, which revealed the alarming scope of the
NSAs data collection program. The Snowden disclosures furnished individuals with a better
understanding of the nature and extent of the information that could be used against them.
Moreover, they prompted concern over the admissibility of such evidence and the
constitutionality of the NSAs practices. More fundamentally, the Snowden leaks gave rise to
new questions regarding the fate of Fourth Amendment rights in the face of encroaching
governmental power. In the aftermath of Snowdens revelations, it became evident that there was
a more compelling need to protect individual rights and challenge the executives practices.

35
Id.
36
Id.
37
Id.
38
See id.
Of course, to mount a challenge in court, a person needs to have standing. After Clapper
was decided in early 2013, it became clear that civil plaintiffs opposing government surveillance
programs would have a difficult time establishing standing. However, the court was satisfied that
surveillance programs could be challenged in criminal cases where section 1881a evidence was
used against the defendant.
39
But the Supreme Courts reasoning only makes sense if the
defendant has notice of the governments intent to use this evidence. Thus, faced with
compelling reasons to challenge the intrusive executive branch programs and an opinion limiting
a persons standing to do, a policy of withholding notice was clearly unjustifiable.
C. NOTIFICATION: A NEW ERA
Following the change in policy, the Justice Department set in to motion a review of criminal
cases in which the government has used evidence collected pursuant to an 1881a order. In
November 2013, Attorney General Eric H. Holder Jr. told The Washington Post that the Justice
Department will be examining cases that are in a variety of stages, and we will be, where
appropriate, providing defendants with information that they should have so they can make their
own determinations about how they want to react to it.
40
Holder represented that the number of
cases affected by the policy change is uncertain and notification will occur on a rolling basis. To
date, the DOJ has provided notification in four cases.

39
See Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013).
40
Sari Horwitz, Justice is reviewing criminal cases that used surveillance evidence gathered
under FISA, WASHINGTONPOST.COM, http://www.washingtonpost.com/world/national-
security/justice-reviewing-criminal-cases-that-used-evidence-gathered-under-fisa-
act/2013/11/15/0aea6420-4e0d-11e3-9890-a1e0997fb0c0_story.html.
In late October, 2013, the DOJ sent the first notification to Jamshid Muhtorov, a terrorism
suspect living in Colorado.
41
Mohamed Osman Mohamud, an Oregon man awaiting sentencing
on an attempted terrorism conviction, received a similar notice in November, 2013.
42
In late
February 2014, Agron Hasbajrami became the first person to receive DOJ notification while
serving a sentence after pleading guilty

.
43
Finally, Reaz Qadir Khan, also from Oregon, received
notice in early April, 2014 while awaiting trial.
Civil rights attorney enthusiastically welcome[d]the governments belated recognition that it
must give notice to criminal defendants who it has monitored under the most sweeping
surveillance law ever passed by Congress.
44
By withholding notice, the government has
avoided judicial review of its dragnet warrantless wiretapping program for five years.
45
Some
predict that the Justice Department notifications have set the stage for a significant legal battle
that could ultimately end up in the Supreme Court.
46
Indeed, both Mohamud and Muhtorov have
already initiated legal challenges.

41
Charlie Savage, Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as
Evidence, NYTIMES.COM (Oct. 26, 2013), http://www.nytimes.com/2013/10/27/us/federal-
prosecutors-in-a-policy-shift-cite-warrantless-wiretaps-as-evidence.html.
42
Ellen Nakashima, Man Convicted in Terror CaseChallenges Warrantless spying,
WASHINGTONPOST.COM (Jan. 13, 2014), http://www.washingtonpost.com/world/national-
security/man-convicted-in-terror-case-challenges-warrantless-spying/2014/01/13/af7da5de-7cba-
11e3-95c6-0a7aa80874bc_print.html.
43
Devlin Barrett, DOJ Notifies Terror Suspect Evidence Gathered Through NSA Program
Move Marks Fourth Time Administration Has Provided Notice, WSJ.COM (April 3, 2014 9:39
p.m.), http://online.wsj.com/news/articles/SB10001424052702303847804579480213208244186.
44
Nakashima, supra note 42.
45
Id.
46
Barrett, supra note 43.
On January 13, 2014, Mohamud filed a 66-page motion for full discovery of the facts
and circumstances underlying surveillance. Mohamuds attorneys told The Washington Post
that they hope to discover more information that they may ultimately use in a challenge to the
FAA.
47
At a minimum, they believe Mohamud deserves a new trial because he was not
informed that the government used the warrantless program in bringing its case the first time.
48

A few weeks later Muhtorov filed a motion to suppress, becoming the first person (with
standing) to challenge the FAA.
49
In his motion, Muhtorov challenged the law on Fourth
Amendment and Article III grounds, and seeks discovery of information that will enable him to
challenge the specific manner in which the government used the FAA. As these four cases
demonstrate, the nature of the constitutional challenge and the remedies available may depend on
the stage at which notice is given.
D. BELATED DOES NOT NECESSARILY MEAN TOO LITTLE, TOO LATE
Unlike the other individuals notified, Mr. Hasbajrami did not have the benefit of
notification until after judgment was entered. Although notice is better belated than never,
defendants who have already pled guilty face unique hurdles in challenging the use of evidence
gathered from warrantless surveillances programs in their cases. For constitutional and policy
reasons, Mr. Hasbajrami and others similarly situated should be allowed to withdraw their pleas
and challenge any evidence collected pursuant to section 1881a.

47
Nakashima, supra note 42.
48
Id.
49
Ken Dilanian, A Colorado man is the first person to challenge the constitutionality of a
law allowing the National Security Agency to tap foreign phone and email conversations that
involve Americans, LATIMES.COM (April 6, 2014), latimes.com/nation/la-na-nsa-americans-
20140407,0,629951.story
The DOJ appears to take the position that no recourse is available in cases involving
belated notice after the entry of a plea. The DOJs notice to Mr. Hasbajrami states:
supplemental notification does not afford you a basis to withdraw your plea or to otherwise
attack your conviction or sentence because you expressly waived those rights, as well as the right
to any additional disclosures from the government, in your plea agreement.
Notwithstanding his plea agreement, Hasbajrami had strong constitutional grounds to
reopen the proceedings.
50
Guilty pleas must be entered voluntarily and must be knowing,
intelligent acts done with sufficient awareness of the relevant circumstances and likely
consequences.
51
When entering his plea, Hasbajrami lacked awareness of the relevant
circumstances because the government had deprived him of knowledge that his case was built in
part on section 1881a evidence. Consequently, he could not evaluate his chances of succeeding
on a motion to suppress. Often, the strength of a Fourth Amendment claim will influence an
assessment of the strength of the case itself and inform the plea decision. Indeed, a strong
argument under the Fourth Amendment may lead to a more favorable plea, or even result in the
dismissal of charges. Because Mr. Hasbajrami was denied the ability to assess the role that
section 1881a evidence played in his case, the validity of his plea is called into question. Thus,
courts should readily allow defendants to withdraw their pleas and vindicate their Fourth
Amendment rights against the government.
Allowing defendants, like Mr. Hasbajrami, to withdraw their pleas and challenge the
admissibility of the belated 1881a evidence also may deter future government misconduct. If the

50
Ramzi Kassem, Unprecedented Notice of Warrantless Wiretapping in a Closed Case,
JURIST - FORUM, Mar. 24, 2014, http://jurist.org/forum/2014/03/ramzi-kassem-warrantless-
wiretapping.php.
51
Brady v. United States, 397 U.S. 742. 749 (1970).
defendant succeeds on a motion to suppress FAA evidence, the court shall suppress the
evidence.
52
Exclusion of evidence effectuates the guarantees of the Fourth Amendment through
deterrence. In other words, it compel[s] respect for the constitutional guaranty in the only
effectively available wayby removing the incentive to disregard it.
53
By requiring the uniform
exclusion of all unconstitutionally obtained evidence collected under the FAA, the government
will be confronted with a powerful reminder that subrogation of Fourth Amendment rights will
not be tolerated. The interests in deterrence are particularly profound when the government
deprived the defendant of his ability to protect these rights in the first instancein this context,
by withholding notice.
Finally, courts should reopen cases of defendants, like Mr. Hasbajramis case, for
purposes of testing the constitutionality of executives warrantless surveillance programs that
occur on U.S. soil. Until recently, FAA programs were largely insulated from judicial review
either due to a lack of standing or a lack of notification. As such, courts have yet to explore the
constitutionality of the governments practices and the rights of individuals relative these
practices. Moreover, the NSAs unprecedented use of technology to carry out FAA surveillance
poses more novel questions. By reopening the cases of criminal defendants who have entered
pleas, there will be more opportunities to explore pressing constitutional questions and learn
about the executives programs through discovery and adversarial testing.
IV. CONCLUSION
In the wake of the Snowden leaks, the extent to which executive officials had
manipulated procedures to insulate the FAA from meaningful adversarial testing became clear.

52
50 U.S.C 1806(d).
53
United States v. Calandra, 414 U.S. 338, 34748 (1974).
This article does not advocate for judicial meddling in national security matters. But when
programs carried out in the name of national security effect the rights of citizens on U.S. soil,
judicial review becomes necessary. Last fall, the DOJs change in notification policy opened the
courts to domestic criminal defendant seeking to challenge the governments warrantless
surveillance practices under the FAA. And criminal defendants have already initiated challenges
to these programs. Going forward, courts should ensure that courtrooms remain open to
aggrieved criminal defendants seeking to vindicate their Fourth Amendment rights against the
government. This includes reopening the cases of defendants who received Justice Department
notification after pleading guilty. Moreover, courts should permit full discovery, subject to
certain national security constraints, to assist in the understanding of FAA programs and the role
they play on domestic soil. Finally, courts should be mindful of the benefits of the adversarial
setting as a means to protect Fourth Amendment rights against government intrusions.