A few interested sites are noting a recently published decision in the U.S. v. Hasbajrami case in Brooklyn, New York, where Eastern District Judge LaShann DeArcy Hall identified the misuse of FISA-702 “backdoor searches” regarding defendant, Agron Hasbajrami.
Hasbajrami plead guilty to charges of attempting to provide material support to a terrorist organization, alleging that he intended to travel to the Federally Administered Tribal Area of Pakistan, where he expected to join a terrorist organization, receive training, and ultimately fight against U.S. forces and others in Afghanistan and Pakistan. However, after his guilty plea, while he is serving time in prison, prosecutors admitted some of the evidence against him came as a result of privacy violations, unlawful FISA-702 searches.
Hasbajrami sought to have the evidence against him thrown out on 4th amendment grounds (fruit of the poisoned tree) and withdraw his guilty plea. The Second Circuit Court of Appeals denied Hasbarjami’s blanket evidence suppression motion for the exclusion of all FISA Section 702 collection in his case but did not weigh in on whether the warrantless Section 702 database queries were constitutional, instead remanding the case back to Judge Hall for a review of that question.
Judge DeArchy Hall received the case again and reviewed all of the government motions against the request to suppress the evidence. What results is a very well-constructed explanation and opinion of how FISA-702 was misused in the case [SEE 60-pg Opinion HERE].
The judge determined that U.S. government officials did factually violate the technical rules and procedures for the use of FISA-702 searches, and the DOJ should have gone to court to obtain a warrant to look at Hasbajrami’s private communication. In essence, yes, the 4th amendment protections of Hasbajrami were violated. However, the issue of overturning the resulting evidence becomes a matter of legal distinction.
(more…)
