### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50841

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. NIDAL M. HASAN, Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas U.S.D.C. No. 6:12-CV-195

Before OWEN and HAYNES, Circuit Judges, and LEMELLE, District Judge. * PER CURIAM: ** Defendant-Appellant Nidal Hasan appeals from the district court’s denial of his m otion t o suppress o r d i s c l ose e vidence obtained t hrough the Foreign Intelligence Surveillance Act (“FISA” ) , 5 0 U.S.C. § 1801, et seq. , which may be relevant to his u pcoming court martial trial o n numerous counts of murder and attempted murder at Fort Hood in Texas. We AFFIRM. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D J uly10, 2013 Ly l e W . Cay ce Clerk

* D is trict Jud ge of

the Eas tern D is trict of Louis iana, s itting by d es ignation.

* * Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50841 Document: 00512303328 Page: 1 Date Filed: 07/10/2013No. 12-50841

As part of the court martial p roceeding, the Government gave notice that it “intends to enter into evidence or otherwise use or d isclo s e . . . information obtained or derived f

rom electronic surveillance conducted pursuant to [FISA].” 50 U.S.C. § 1806(c). Hasan then moved for that evidence to be either d isclosed to him or suppressed. See id

. § 1806(e). The military judge subsequently transferred consideration of H asan’s motion to the United S tates District Court for t he Western District of Texas, as pe r m i t t e d u n d er F ISA. See id. § 1806(f). The Attorney General certified that disclosure and an adversarial hearing here could harm national s ecurity, and the Government invoked FISA’s in c a m e r a , ex parte review p rocedures. See id. The district court granted the r e q u e s t , reviewed the challenged materials in camera , and denied Hasan’s motion. We first c onclude that we have jurisdiction to consider Hasan’s appeal. FISA speci f

ically bestows jurisdiction o n t he federal d istrict courts to consider the matters at issue here, which necessarily encompasses appropriate a ppellate proceedings. See id. Furthermore, w e may exer c i s e jurisdiction under the collateral o rder d octrine when, as here, the d i str i ct court’s F ISA ruling would otherwise be effectively unreviewable. 1 See, e . g. , U nited S tates v. Hamide , 914 F.2d 1147, 1152 (9th C ir

. 1 9 9 0 ) (collecting cases). Because this c o urt cannot exercise appellate jurisdiction over H asan’s court martial, it has jurisdiction to review the propriety of the district court’s rulings here. See United States v. Ott , 827 F.2d 473, 475-76 (9th Cir. 1987) (exercising j urisdictio n o v e r F I SA appeal originating from court martial proceedings). T u rning to the merits, Hasan’s briefing does not clearly challeng e t h e district court’s evidentiary or procedural rulings. Nor does he ask for an in

1 See genera l l

y Cohen v . Benef

i ci a l I ndus. L oa n Corp

. , 337 U

. S. 541, 546 ( 1949) ( “This d ecis ion ap p ears to f

all in that s m all clas s w hich finally d eterm ine claim s of right sep arable f rom , and collateral to, rights as s erted in the action, too im p ortant to be denied review and too ind ep end ent of the caus e its elf to require that ap p ellate cons id eration be d ef erred un t i l the
w hole cas e is ad

jud icated

. ”)

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camera examination of the FISA materials reviewed below or a d etailed analysis of any specific district court ruling. T o t h e e x t ent he a ddresses some of the evidentiary and procedural objections he raised i n t he district c ourt, it is in the context o f complaining that FISA prevents him f rom making m ore specific objections. H a s a n’s brief instead raises one overarching due-process objection against the F ISA framework. See United States v. Damrah , 412 F.3d 618, 624 ( 6th Cir. 2 0 0 5 ) ( “[Appellant] does not argue t hat the district court failed to follow t h e statutorily prescribed procedures applicable when a district court r e v i e w s the ‘legality of the [FISA] surveillance.’ See [50 U.S.C. § 1806(f)]. I n s t e ad, he asserts t hat the procedures themselves v i olated h is constitutional rights.”). He argues that “a flawed, draconian procedure [is] in place to l itigate [his] access to [the FISA-obtained] information” and that “[w]ithout access to this information, [he w ill be] denied due process.” Accordingly, we con clude that the only issue properly raised on appeal is a generalized due-process objection against FISA. That argument is foreclosed by circuit p recedent. This c o u r t e xplicitly held—in a case not cited by H asan—that the FISA provisions at i ssue comport with due process. See United States v. E l-Mezain , 664 F.3d 467, 567-68 (5th Cir. 2011), cert. denied , 133 S. Ct. 525 (2012). Indeed, e very court of appeals to consi d e r a facial constitutional challenge to FISA—whether for due-process or Fourth Amendment purp o s e s

— h a s upheld the s tatute. See id. at 567 (citing

cases from the D.C., Sixth, Eighth, and Ninth C ircuits); United States v. AbuJihaad , 630 F .3d 102, 120 (2d Cir. 2010), cert. denied , 1 3 1 S

. Ct. 3062 (2011) (citing cases from the First, Fourth, Sixth, S eventh, and Ninth Circuits, as well as numerous district court authorities). The D.C. Circuit, moreover, long ago rejected the general argument Hasan makes here in a case in which now-Justice Scalia sat:

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We a ppreciate the difficulties of appellants’ counsel i n this case. They must argue that the de t e r m i n a tion of legality is so complex that an adversary hearing with full access to relevant materials is necessary. But without access to the relevant materials their claim of complexity can be given no concreteness. It is pure assertion. Congress was also aware of these difficulties. But it chose to resolve t hem through means other than mandatory disclosure. In FISA Congress has made a thoroughly r e a sonable attempt to balance the competing concerns of i n d i v i dual privacy and foreign intelligence. As noted, oversight o f electronic surveillance is p r ovided by all three branches of g overnment. Appellant s a r e understandably reluctant to be e xcluded from the process whereby the legality of a surveillance by which they were incidentally affected is j udged. But it cannot be said that this exclusion rises to the level of a constitutional violation. United States v. Belfield , 692 F.2d 141, 148 (D.C. Cir. 1982). El-Mezain forecloses Hasan’s attack on FISA. 2 AFFIRMED.

2 The El

- M

ez ai n court als o f

oreclos ed H as an’s s ugges tion that the d is trict court s hould authorize d is clos ure to any m em ber of his legal team w ho p os s es s es an ap p rop riate s ecurity clearance. See 664 F .3d at 568 ( citing O tt , 827 F. 2d at 477)

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