with the Fourth Amendment, it cannot be expected, and should not be applied, to deter

objectively reasonable law enforcement activity:”

‘The deterrent purpose of the exclusionary rule necessarily assumes that the police have
engaged in willful, or at the very Icast negligent, conduct which has deprived the
delendant of some right. By refusing to admit evidence gained as a result of such
conduct, the courts hope to instill in those particular investigating officers, or in their
future counterparts, a greater degree of care toward the rights of an accused. Where the
official action was pursued in complete good faith, however, the deterrence rationale
loses much of its foree.... [the purpose of the exclusionary rule is to deter unlawful
police conduct, then evidence obtained from a search should be suppressed only if it can
be said that the law enforcement officer had knowledge, or may properly be charged with
knowledge, that the scarch was unconstitutional under the Fourth Amendment.

Leon, 468 U.S, at 918-19, 104 S, Ct, at 3418-19 (internal quotation omitted) (further noting that
the court has “frequently questioned whether the exclusionary rule can have any deterrent effect
when the offending officers acted in the objectively reasonable belief that their conduct did not
violate the fourth Amendment”).

Since Leon, the Supreme Court has extended the good-faith exception to apply toa
warrantless administrative search as conducted in objectively reasonable reliance upon a statute
that later is held unconstitutional:

‘The application of the exclusionary rule to suppress evidence obtained by an officer
acting in objectively reasonable rcliance on a statute would have as little deterrent effect
on the officer’s actions as would the exclusion of evidence when an officer acts in
objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional,
an officer cannot be expected to question the judgment of the legislature lhat passed the
law. If the statute is subsequently declared unconstitutional, excluding evidence obtained
pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment
violations by an officer who has simply fulfilled his responsibility to enforce the statute as
written,

Hlinois y. Krull, 480 U.S. 340, 349-50, 107 S. CL. 1160, 1167, 94 L, Lid, 24 364 (1987): see also

Real Property, 332 F.3d at 1074,

-20-


the issuc before FISA was amended by the USA Patriot Act of 2001 have found FISA
constitutional”); Nicholson, 955 F. Supp. at 591 Cin the twenty years since it was enacted, FISA
has been upheld as constitutional by every court to address the issuc.”), Likewise, courts have
held that FISA’s physical search provisions, like their electronic surveillance counterparts, satisly
the Fourth Amendment’s reasonableness requirement, Nicholson, 958 EF, Supp. at 590; United
States v. Benkahla, No, 1:06CR9 (SCC), 2006 WL 1390573, *11 (L.D, Va. May 17, 2006):
Global Relief Found. Lac. v. O'Neill, 207 F. Supp. 2d 779, 807 (N-D. Hl, 2002) (rejecting the
argument that the FBI's FISA search of plaintift’s offices and seizure of property violated the
Fourth Amendment because the court “agree|d] with the many courts which have held that
searches conducted pursuant to FISA do not violate the protections afforded by the Fourth
Amendment”),

‘As noted above, immediately before conducting a physical search of Ashqar’s residence,
the FBI twice utilized FISA procedures to obtain authorization to conduct electronic surveillance
on the telephone and facsimile lines in Ashqar’s residence. The 1994 amendments pertaining to
physical searches, of course, were not available to the FBI in 1993.

B. Exceutive Order 12,333

‘The government contends that the FBI's warrantless physical search of Ashqar’s
residence was proper because the FBI followed the procedures set forth in Executive Order
12,333. That order authorizes physical searches for intelligence gathering and provides in
pertinent part:

Timely and accurate information about the acti vities, capabilitics, plans, and intentions of

foreign powers, organizations, and persons and their agents, is essential to the national
security of the United States .. .

-14-



Supp. at 591. Such is especially the case because at the time the FISA court did not have
Jurisdiction to approve a foreign intelligence physical search,

In sum, because the FISA court made (and Seventh Circuit has upheld) the
determinations necessary to establish the reasonableness the physical search at issue here, the
Court concludes that the FBI did not violate the Fourth Amendment and that suppression is
inappropriate.

B. The Foreign Intelligence Exception

‘The “foreign intelligence” exception to the Fourth Amendment’s general warrant
requirement further underscores the reasonableness of the FBI's search and the procedures the
FBL employed to obtam authorization for that search. Before Congress enactad FISA, virtually
every circuit that addressed the issue held that there is a “foreign intelligence” exception to the
general warrant requirement.? See United States v. Truong, 629 F.2d 908, 913 (4" Cir, 1980);
United States v. Buck, 548 F.2d 871, 875 (9" Cir.), cert, denied, 434 U.S. 890, 98 S. Ct. 263, 54
1. Ed, 2d 175 (1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.) (en bane), cert.

denied, 419 U.S. 881,95 8, Ct. 147, 42 L. Ed. 2d 121 (1974): United States v, Brawn, 484 F.2d

8

In Keith, — a case that Defendant and the amici rely heavily upon — the Supreme
Court considered the constitutionality of warrantless “surveillances [that] were decmed necessary
lo protect the nation from attempts of domestic organizations to attack and subvert the existing
structure of Government.” 407 U.S. al 308-09, 92 S. Ct. at 2132 (internal quotation omitted).
‘The Keith court ultimately rejected the government’s arguments and concluded that there was no
“national security” exception to the Fourth Amendment's general warrant requirement, but
emphasized “the limited nature of the question before the Court,” noting that “tthe instant case
requires no judgment on the scope of the President's surveillance power with yespect to the
activities of foreign powers, within or without this country...” /d. at 308, 92 §. Cl. at 2132: see
alsa Ajlouny, 629 F.2d at 840 (*[t]he substantive issue of whether foreign intelligence
surveillance can be conducted lawfully without a judicial warrant was specifically left undecided
by [Keith}”),

“24.



Th. The Fourth Amendment

The Fourth Amendment guarantees that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable scarches and seizautes, shall not be
violated, and no Warrants shall issue, but upon probable cause.” U.S. Cons’, amend. TV, “The
touchstone of Fourth Amendment inquiry is reasonableness, a standard measured in light of the
totality of the circumstances and determined by balancing the degree 10 which a challenged
action intrudes on an individual's privacy and the degree to which the action promotes a
legitimate government interest.” Green y, Builer, 420 V.3d 689, 694 (7" Cir, 2005); see alsa
New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 740, 83 L. Ed.2d 720 (1985)
(“[allthough the underlying command of the Fourth Amendment is always that searches and
seizures be reasonable, what is reasonable depends on the context within which a search takes
place”). Indeed, “[t]he fourth amendment does not of its own force require a warrant for any
search. Its text is a limitation on warrants.” United States v. Limares, 269 F.4d 794, 799 (7" Cir.

2001) (“wa

ants are not the only way to justily entries as reasonable”) (emphasis original). Put
differently, “{t]he Fourth Amendment does not require that a search be based on probable cause
to believe that the search will yicld contraband or evidence of crime. ‘The améndment requires
that warrants be based on probable cause, but forbids only unreasonable searches.” United
States vy. Burton, 441 F.3d 509, $11 (7" Cir, 2006) (emphasis original); see alse United States v.
Sutton, 336 F.3d 550, 553 (7"" Cir, 2003) (“*[T]he reasonableness of any given search will depend
on a multiplicity of factors, precluding any generalizations as to whether a certain type or class of
Lhe cee

search would pass muster under the Fourth Amendment”).

Although law enforcement may generally undertake a physical search of a home only

Se


Applying the reasoning of Leon and Krull here, it was objectively reasonable for federal
agents to rely on the Attorney General's approval pursuant to Executive Order 12,333 to conduct
a physical search of Ashqar’s residence. The current facts do not reflect any “willful” or even
“negligent” conduct that, under Leon, should exist before the oxclusionary rule is applied.
Critically, immediately before conducting the physical search, the BI had twice obtained FISA
court approval to conduct clectronic surveillance based on the same factual showing that the lI
presented to the Attorney General pursuant to Executive Order 12,333 - a procedure necessitated
only because, at the time, FISA did not cover physical searches, Morcover, the ‘BI’s reliance on
the Attorney General’s approval under Executive Order 12,333 - an order that no court has found
unconstitutional — was also objectively reasonable because that order pertains to foreign

os .
intelligence gathering, an activity incidental to the “the constitutional competance of the
President in the field of foreign affairs.” Bin Laden, 126 P. Supp. 2d at 272-73: yee also Keith,
407 U.S, at 310, 92 $. Cl. at 2133 (recognizing that the “President of the United States has the
fundamental duty, under Art. IL, $1, of the Constitution, to ‘preserve, protect and defend the
Constitution of the United States’ and [i}mplicit in that duty is the power to protect our
Government against those who would subvert or overthrow it by unlawful means”); Duggan. 743
¥.2d at 72 (before Congress enacted MISA “virtually every court that had addressed the issue had
concluded that the President had the inherent power to conduct warrantless electronic
surveillance to collect foreign intelligence information”); United States v, Ehrlichman, 546 F.2d
910, 936 (D.C, Cir, 1976) (noting in dicta that “no court has ruled that the President dues not
have [the prerogative to authorize warrantless foreign intelligence collection] in a case involving

foreign agents or collaborators with a forcign power”); cf’ United States v. Curtiss- Wright, 299

-21-


but that was not the case when the FBI searched Ashqar’s residence."” Accordingly. the FBI
scarch, which complied with the procedures that were properly in place at the time of the search,
falls within the foreign intelligence exception to the Fourth Amendment's general warrant
requirement and the search, for the reasons explained in Section 1A above, was reasonable in

light of the FISA court’s findings.

a ‘The Court does not need to and is not addressing the distinct issue of whether or
to what extent the “foreign intelligence” exception applics to physical searches (or electronic
surveillance) since FISA’s cnactment.

-27-


exist); Duggan, 743 F.2d at 77. These are (he same determinations, in essence,’ that the FISA
court would have had to make if FISA had covered physical searches ut the time of the FBI's
search, see 50 U.S.C, §1824(a); 50 U.S.C, §1804(a), and they are determinations that, in turn,
would establish the reasonableness of a PISA search for purposes of the Fourth Amendment.
Nicholson, 955 F. Supp. at 591 (further noting that “the physical searches in question here are
constituionally indistinguishable from the lISA-authorized electronic surveillance unanimously
upheld by federal courts”); Global Relief Kound,, 207 i. Supp. 2d at 807 (same); see also Bin
Laden. 126 F. Supp. 2d at 285 (the cases that have “consider|edj the relative intrusiveness of
residential searches and electronic surveillance, generally seem to conclude that neither
automatically merils greater protection from the Fourth Amendment.”). In addition, alter
carelully reviewing i camera the two FISA applications and the Executive Order 12,333
application, the Court finds that the government presented even more evidence in su pport of ils
application to the Attorney General under 12,333 than [or the PISA orders that already have been
upheld. The Court sces no reason why the lack of FISA procedures for physical searches would
ronder the physical search here unreasonable when cxecutive officers, in the time period
immediately preceding the physical search, twice properly brought before a FISA judge the proof!”

necessary to establish a reasonable search under the current statutory scheme. Nicholson, 955 ¥.

' The only difference is that for physical searches the executive official must certify

that “the premises or property to be searched is owned, used, possessed by .. . an agent of a
foreign power or a foreign power” 50 U.S.C. § 1824(a)(3)(B), rather than that “the facilities or
places at which the electronic surveillance is directed is being used... by... an agent ola
foreign power,” $0 U.S.C. § [805(a)(3)(B). This distinction is not critical here, The FISA court
and the Seventh Circuit have concluded that executive officers established probable cause that
Delendant is an “agent of a foreign power,” and Defendant in his motion concedes that he
“owned, used, or possessed” 7 Rubin Drive, Oxford, Mississippi as his personal residence. (R.
196-1, Def.’s Motion at 41.)

-23-


be proportioned to the wrong-doing that they punish”). In this regard, the Seventh Circuit

recognizes that application of the exclusionary rule involves “competing interests.” Espinoza,
256 [3d at 724-25. “[T]he underlying purpose of the exclusionary rule [is] to deter illegal police
conduct by punishing the behavior and removing the incentive for its repetition,” but “[o]n the
other side of the ledger, . . . [t]he exclusionary rule by definition deprives courts and juries of
probative evidence of a crime, and thereby offends the important societal interest in prosecuting,
punishing, and deterring criminal conduct.” /d, (internal quotation and citation omitted); see also
United States v. Payner, 447 U.S. 727, 734, 100 S, Ct, 2439, 2445, 65 L, Fd, 2d 468 (1980)
(Our cases have consistently recognized that unbending application of the exclusionary sanction
to enforce ideals of governmental rectitude would impede unacceptably the truth-finding
functions of judge and jury.”). Accordingly, application of the exclusionary rule “has been
restricted to those areas whore its remedial objectives are thought most efficaciousty served”
because “it is well-recognized that indiscriminate application of the exclusionary rule may well
generate disrespect for the law and administration of justice.” Espinoza, 256 F.3d at 724-25
(internal quotation and punctuation omitted). .

Because l'ISA now prescribes the methods through which the government may seck
physical searches pursued for forcign intelligence purposes, exclusion would not further the
deterrence rationale of the exclusionary rule. The Court finds persuasive the reasoning of the
Second Circuit, which has addressed this issue. In United States v. Ajlouny, the Second Circuit
considered the constitutionality of a warrantless foreign intelligence clectronic surveillance that
took place prior lo Congress’s enactment of FISA. 629 F.2d 830, 840 (24 Cir, 1980), Without

rcaching the issue of constitutionality, the Ajlouny court held that suppression would not further

~18-


foreign power of 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) cach of the facilities or places at which the clectronic surveillance is directed
is being used, or is about to be used, by a foreign power or an agent of a foreign
power,

(4) the proposed minimization procedures meet the definition of minimization procedures
under section 1801(h) of this title; and

(5) the application which has been filed contains all statements and ceftifications required
by section | 804 of this title and, if the target is a United States person, the certification or
certifications are not clearly erroneous on the basis of the statement made under section
1804(a)(7)(E) of this title and any other information furnished under s¢ction |804(d) of

States persons; or (6) an entity that is directed and controlled by a foreign government or
governments,

Pub. T.. 95-511 (1978): 50 U.S.C. §1805(a), In addition, FISA defines “agont of a foreign power”
to mean:

(1) any person other than a United States person, who (A) acts in the United States as an
officer or employee of a forcign power, or as a member ola foreign power as defined in
subsection (a)(4); (B) acts for or on behalf of a foreign power which engages in
clandestine intelligence activities in the United States contrary to the imterests of the
United States, when the circumstances of such person's presence in thé United States
indicate that such person may engage in such activitics in the United States, or when such
person knowingly aids or abets any person in the conduct of such activities or knowingly
conspires with any person to engage in such activities; or

(2) any person who (A) knowingly engages in clandestine intelligence pathering activities
for or on behalf of a foreign power, which activities involve or may involve a violation of
the criminal statues of the United States; (B) pursuant to the direction of an intelligence
service or network of a foreign power, knowingly engages in any other clandestine
intelligence activities for or on behalf of such foreign power, which activities involve or
are about to involve a violation of the criminal statutes of the United States; (C)
knowingly engages in sabotage or international terrorism, or activities that are in
preparation therefor, for or on behalf of a foreign power; or (D) knowingly aids or abets
any person in the conduct of activities described in subparagraph (A), (B), or (C) or
knowingly conspires with any person to engage in activities described in subparagraph
(A), (B), or (C).

Pub. L, 95-511 (1978); 50 U.S.C. §1801(b). whee

-10-


I

required under FISA, if they do not meet the minimum Fourth Amendment warrant standards,
certainly come close. We, therefore, believe firmly. . . that FISA as amended is constitutional
because the surveillances it authorizes are reasonable”); ¢f United States v. Spanjol, 720 F. Supp.
535, 58 (E.D, Pa, 1989) (“ISA's procedure for obtaining judicial authorization of the
Government’s electronic surveillance for foreign intelligence purposes interposes a neutral and
detached judicial officer between the Government and the target of the surveillance. As such, it
satisfies the warrant requirements of the Fourth Amendment.”). Such is the case, courts have
reasoned, because “the procedures fashioned in FISA [arc] a constitutionally adequate balancing
of the individual’s Fourth Amendment rights against the nation’s need to obtain foreign
intelligence information.” Duggan, 743 1'.2d at 73; Cavanagh, 807 F.2d at 790 (FISA’s probable
cause standard satisfies Fourth Amendment’s reasonableness requirement); United States v.
Falvey, 540 F. Supp. 1306, 1313 (L.D.N.Y. 1982) (finding “that the FISA probable cause
standard fully satisfies the Fourth Amendment requirements.” “[i]t provides an effective external
control on arbitrary executive action and is a fundamental saleguard for the ¢ivil liberties of the
individual because it requires that a federal district court judge — not the Executive branch -
make a finding of probable cause to believe that the targel of surveillance is‘an agent of a foreign
power” (internal quotation omitted)).
ANALYSIS

‘Lhe government contends that it meets its burden of establishing the’ legality of the FBI
search in a number of ways. Foremost, the government contends that the Warrants Clause of the
Kourth Amendment does nol require the Executive Branch to obtain a warrant prior to directing

foreign intelligence collection against agents of foreign powers. ‘This exception rests, the

“Je. 4


pursuant to 4 warrant, the Supreme Court has recognized certain exceptions to that rule. Sve

Griffin v. Wisconsin, 483 U.S, 868, 873, 107 S, Ct. 3164, 3168, 97 L, Ed. 2d 709 (1987) (citing
authorities); see also Illinois y, Rodriguez, 497 U.S. 177, 183, 110 8, Ct. 2793, 2799, 1111. Ed.
2d 148 (1990) (“[w]hat [a person] is assured by the Fourth Amendment . . , is not that no
government search of his house will occur unless he consents; but that no such search will occur
that is ‘unreasonable.’”); cf Payton y, New York, 445 U.S. 573, 586, 100 S, Ct. 1371, 1380, 63 L.
Fad. 2d 639 (1980) (“[i]t is a basic principle of Fourth Amendment law that searches and seizures
inside a home without a warrant are presumptively unreasonable” (internal quotation omilted)).
Vor cxample, “several cases have permitted home entries, without warrants, where a special need
of the government is shown.” United States vy, Bin Laden, 126 F. Supp. 2d 264, 274-76
(S.D.N.Y. 2000) (holding that the foreign intelligence exception allows warrantless physical
scarches conducted abroad in part because “there is presently no statutory basis lor the issuance
ofa warrant to conduct scarches abroad”). In addition, several cases have held that FISA’s
statutory procedures (discussed more fully below) satisfy the Fourth Amendment's
reasonableness requirement, United States v. Pelton, 835 F.2d 1067, 1075 (4" Cir, 1987)
(“FISA’s numerous safeguards provide sufficient protection for the rights guaranteed by the
Fourth Amendment within the context of foreign intelligence activities.”}; United States y,
Cavanagh, 807 F.2d 787, 790 (9" Cir, 1987) (“FISA satisfies the constraints the Fourth
Amendment places on foreign intelligence surveillance conducted by the government.”); United
States v. Nicholson, 955 I’. Supp, 588, 591 (iD. Va. 1997), even if an order issued by a FISA
court does not constitute a “warrant” for Fourth Amendment purposes. Jn re Sealed Caye. 310

V.3d 717, 746 (VISA Ct. App. 2002) (“we think the procedures and government showings

-6-


the purposes of the exclusionary rule:

[T]he need to apply the exclusionary rule to achieve deterrence has been virtually
eliminated by the significant clarification of standards that occurred with the enactment in
October, 1978 of [FISA]. FISA now requires that the Government obtaining of a court
order before foreign intelligence surveillance may be conducted. ‘Though the surveillance
of Ajlouny, occurring prior to the Act's effective date, was not subject to this or any other
statutory warrant requirement, passage of the Act substantially reduced the importance of
deciding in this case whether the Constitution independently requires the obtaining of a
warrant for foreign intelligence electronic surveillance. Though the exclusionary rule
remains available in the event the new statutory requirements are not observed, there is
litle if any need to apply the rule to a possible Fourth Amendment violation now that
agents’ conduct in the future will normally be guided and measured by statutory
standards. Application of the exclusionary rule in this case is therefore inappropriate.

Ajlouny, 629 F.2d at 841-42. Similarly, the deterrent rationale of the exclusionary rule would not
be furthered here because Congress has expanded FISA to include a specific method for Federal
agents to obtain authorization for conducting physical searches to obtain foreign intelligence.
Congress amended FISA shortly after the FBI executed the search at Ashqar’s residence.

Accordi

y, for this reason, the Court denies Ashyar’s motion to suppress.
B. — The Good Faith Exception
The good-faith exception to the exclusionary rule — an “offshoot of the deterrence

analysis,” Bin Laden, 126 PF. Supp. 2d ut 283 — also provides a basis to deny Defendant’s motion

to suppre

See Leon, 468 US, at 924-25, 104 8. Ct at 3421-22. In Leon, the Supreme Court
held that the exclusionary rule should not operate to suppress evidence obtained by a police
olficer whose reliance on a search warrant issued by a neutral magistrate was objectively
reasonable, even though the warrant ultimately was found to be detective. The Leon court
reasoned that “even assuming that the rule effectively deters some police mistonduct and

provides incentives for the law enforcement profession as a whole to conduct itself’ in accord

-19-


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. §1804(a)(3)(A), (B); (3) “a detailed 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)(6); and (4) “that the certifying official deems the information sought to be foreign
intelligence information.” 50 U.S.C. §1804(a)(7)(A); Duggan, 742 F.2d at 77.

Upon review of the application, the IISA court “shall enter an ex parte order as
requested... approving the electronic surveillance” if the court finds that:

(1) the President has authorized the Attorney General to approve applications for
electronic surveillance for forcign intelligence information;

(2) the application has been made by a Federal officer and approved by the Attorney
General;

(3) on the basis of the facts submitted by the applicant there is probable cause to believe
that —

(A) the target of the clectronic surveillance is a foreign power: or an agent of a
foreign power*: Provided, [t]hat no United States person may be considered a

4 FISA defines “foreign intelligence information” to mean: “(1') information that

relates to... the ability of the United States to protect against, (A) actual or potential attack or
other grave hostile acts of a forcign power or an agent of a foreign power; (B) sabolage or
international terrorism by a foreign power or an agent ofa foreign power; or (C) clandestine
intelligence activities by an intelligence service or network of a forcign power or by an agent ala
foreign power; or (2) information with respect to a forcign power or foreign territory that relates
to... (A) the national defense or the security of the United States; or (B) the conduct of the
foreign affairs of the United States.” Pub. 1.. 95-511 (1978); 50 U.S.C. § 1801(e).

: FISA defines “foreign power” to mean: ' a

(1) a foreign government or any component thereol, whether or not recognized by the
United States; (2) a faction of a foreign nation or nations, not substantially composed of
United States persons; (3) an entity that is openly acknowledged by a foreign government
or governments to he directed and controlled by such foreign government or
governments; (4) a group engaged in inlernational terrorism or activities in preparation
therefor; (5) a foreign-based political organization, not substantially composed of United

-9-


418, 426 (5" Cir. 1973), cert. denied, 415 U.S. 960, 94 8. Ct, 1490, 39 L. Ed. 2d 575 (1974); ef
Zweibon v. Mitchell, 516 F.2d 594, 651 (D.C. Cir, 1975) (en bane), cert. denied, 425 U.S, 944.
96 §. Ct. 1684, 48 L, Ed. 2d 187 (1976) (noting in dicta warrantless forcign intelligence
surveillance is unlawful), In general, these courts concluded that this exception to the warrant
requirement arises from “the President’s constitutional duty to act for the United States in the
field of forcign relations...” Brown, 484 F.2d at 426 (“[rlestrictions upon the President's power
which are appropriate in cases of domestic security become artificial in the context of the
international sphere”); Butenko, 494 12d at 605 (“the efficient operation of the Executive's
foreign policy-making apparatus depends on a continuous Now of information. A court should
be wary of interfering with this flow.”). For example, as the Fourth Circuit explained in Truong.

_

the “foreign intelligence” exception that existed pre-VISA recognized that “the needs of the
executive are so compelling in the area of foreign intelligence, unlike the area of domestic
security, that a uniform warrant requirement would, following Keith, ‘unduly frustrate’ the
President in carrying out his foreign affairs responsibilities.” 629 F.2d at 913. Specifically, the
Truong court held that “foreign intelligence” searches are distinguishable from “national
security” searches at issuc in Keith because: (1) “a warrant requirement would add a procedural
burdle that would reduce the flexibility of executive foreign intelligence initiatives” (2) “the
exvoutive possesses unparalleled expertise lo make the decision whether to conduct foreign
intelligence surveillance, whereas the judiciary is largely inexpericnced in making the delicate
and complex decisions that lie behind foreign intelligence surveillance;” and (3) the executive

branch is “constitutionally designated as the pre-eminent authority in forciga affairs.” Jd. al 913-

14 (“[bjecause of the need of the executive branch for flexibility, its practical experience, and its

-25-


IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,

v. No. 03 CR 0978
MOUSA MOHAMMED ABU MARZOOK,
MUHAMMAD HAMID KHALIL.

SALAH, and ABDELHALEEM

IIASAN ABDELRAZIO ASHQAR,

Delendants.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

On August 19, 2004, a Grand Jury returned a multiple-count, Second ‘Superseding
Indictment (the “Indictment”) against Defendant Abdelhaleem Hasan Abdelraziq Ashgar
(Ashgar” or “Defendant”) and his co-defendants, Mousa Mohammed Abu Marzook
(“Marzook”) and Muhammad Hamid Khalil Salah (“Salah”). Currently before the Court is
Ashqar's Motion to Suppress (the “Motion”) wherein Ashqar urges the Court to suppress certain
materials and documents that the government obtained during a physical scarch — conducted
pursuant to the Attorney General's finding thal the search was aimed at obtaining forcign
intelligence - of his home in December 1993. For the reasons stated below, the Court denies
Ashqar’s motion because the current facts do not warrant application of the exclusionary rule. In
light of the current FISA statutory scheme, which now specifically outlines the procedures for
conducting physical searches against agents of a foreign power, no deterrent value would be

gained by excluding the materials at issue here. Even assuming that the exclusionary rule applies


searched. 50 U.S.C. §§ 1823(a)(4)(C), Upon reviewing the application, the FISA court “shall

enter an ex parte order as requested or as modified approving the physical search if the judge

finds that:”

(1) the President has authorized the Atlomey General to approve applications lor physical
searches lor foreign intelligence purposes;

(2) the application has been made by a Federal officer and approved by the Attorney
General;

(3) on the basis of the facts submitted by the applicant there is probable cause to believe
that

(A) the target of the physical search is a foreign power or an agent of a forcign
power, except that no United States person may be considered jan agent of a
foreign power solely upon the basis of activities protected by the first amendment
to the Constitution of the United States; and

zs

(B) the premises or property to be searched is owned, used, possessed by, or is in
transit to or from an agent of a foreign power or a foreign power:

(4) the proposed minimization procedures meet the definition of minimization contained
in this subchapter; and

(5) the application which has been filed contains all statements and cettifications required
by section 1823 of this title, and, if the target is a United States person, the certification or
certifications are not clearly erroneous on the basis of the statement made under section

823(a)(7){L) of this title and any other information furnished under section 1823(c) of
this title.

50 U.S.C. §1824(a),* As the text of this section (and its electronic surveillande counterpart)

makes clear, “[t]he PISA court, in reviewing the application, is not to second-guess the executive

branch official's certifications.” Jn re Grand Jury Proceedings, 347 F.3d at 208 (citing Duggan,

8 As is the case with electronic surveillance, the Attorney General. in certain

circumstances, can authorize a warrantless physical search, including in “an emergency
situation.” 50 U.S.C. §§1805(1, 1824(¢) (further requiring the Attorncy General to inform the
FISA court of the emergency order immediately and to submit promptly an application to the
PISA court for an order validating the emergency investigation),

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this title.
SOUS.C. § 1805(a); see also In re Grand Jury Proceedings, 347 F.3d at 204. “By enacting
FISA, Congress sought to resolve doubts about the constitutionality of warrahtless, foreign
security surveillance and yet protect the interests of the United States in obtaining vital
intelligence about foreign powers.” ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 461 (D.C.
Cir. 1991), “FISA thus created a ‘secure framework by which the Executive Branch may
conduct legitimate electronic surveillance for foreign intelligence purposes within the context of
this Nation’s commitment to privacy and individual rights.’” Barr, 952 F.2d at 460-61 (quoting
S. Rep. 95-604 (1977)); United States y. Squillacote, 221 V.3d 542, 552 (4" Cir, 2000) (same).

As originally drafted, FISA did not provide a protocol for obtaining permission to
conduct physical searches to obtain foreign intelligence. In 1994, however, Congress amended
FISA to encompass physical searches conducted for foreign intelligence purposes. Pub. L.

103-359 §§301-09 (1994). In essence, the government bears the same burden as that for

obtaining electronic surveillance. A federal officer secking approval of a physical search under
FISA must submit an application to a FISA court. Like the certification needed for electronic
surveillance. the Attorney General must certify that such an application contains certain
information, including: (1) “the identity, if known, or a description of the target of the search,
and a delailed description of the premises or property to be searched,” 50 USC. §1823(a)(3); (2)
the basis for the government’s belicf that the target of the physical search is a “foreign power” or
an “agent of a foreign power,” 50 U.S.C. §1823(a)(4)(A); (3) the information sought is foreign
intelligence information, 50 U.3.C. §1823(a)(7)(A); (4) the property lo be searched contains

foreign intelligence, 50 U.S.C. §1823(a)(4)(3); and (5) that the target controls the property to be

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government contends, on the President’s broad authority in the field of foreign affairs. In the
alternative, the government argues that, cven if the search was unconstitutional, the exclusionary
rule does not apply because suppression would not yield any deterrent value and because the FBI
conducted the search in “good faith.”
I. The Authority for Foreign Intelligence Searches

A. FISA

In 1978, Congress enacted FISA, “[a]n Act to authorize clectronic surveillance to obtain
foreign intelligence information.” P.L. 95-511 (1978); 50 U.S.C. § 1802(b); United States v.
Duggan, 743 F.2d 39, 7 (2° Cir. 1984) “PISA permits federal officials to obtain orders
authorizing electronics surveillance for the purpose of obtaining foreign intelligence
information” (internal quotation omitted). The initial version of that statute (which Congress
subsequently has amended several times) designated seven district court judges from seven
circuits to “constitute a court which shall have jurisdiction to hear applicatiqns for and grant
orders approving clectronic surveillance anywhere within the United States under the procedures
set forth [in FISA].” Pub, L. 95-311 (1978); ef. 50 U.S.C. §1803(a) (2006). To obtain
authorization for electronic surveillance under FISA, a federal officer must submit an application
to the FISA court certifying that the Attorney General approves the application and has found
that it satisfies FISA’s “criteria and requirements,” including, among other things: (1) “the
identity, if known, or a description of the specilic target of the electronic surveillance, 50 U.S.C.
§1804(a)(3); (2) “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

-8-



U.S. 304. 320, 57 8. Cl. 216, 221, 81 1. Ed. 255 (1936) (the President's power over foreign
alfairs, “like every other governmental power, must be exercised in subordination to the
applicable provisions of the Constitution.”). The |'BI, that is, ful illed its responsibility of
obtaining approval for a foreign intelligence physical search through procedures that were not
“clearly unconstitutional” and, in turn, the application of the exclusionary rule, as Krul/ instructs,
would not have any significant deterrent effect. Thus, the “good-faith” exception to the
exclusionary rule applies here and suppression would be inappropriate.

Hl, The FBI's Search Was Reasonable

A. Prior To the Search of Ashqar’s Residence, ‘The FISA Court Essentially Had
Made The Findings Necessary Tu Establish Reasonableness

The FBI's physical scarch satisfies the Fourth Amendment’s reasonableness requirement.
As an initial matter, much of Defendant's cited authority is rendered inapposite because this case
is not a typical “warrantless” search case, Prior to conducting the physical scarch of Ashqar’s
residence, the FBI twice received FISA court approval for foreign intelligence-electronic
surveillance, and the Seventh Circuit already has held “that the FISA court praperly granted the
applications.” Jn re Grand Jury Proceedings, 347 3d at 205. The Seventh Circuit, that is, has
upheld the PISA court’s determination that probable cause existed to believe (1) that “the target
of the electronic surveitlance is a foreign power or an agent ol'a foreign power,” and (2) “that
cach of the facilities or places at which the electroni¢ surveillance is directed ig being uscd, or is
about to be used, by a foreign power or an agent of a foreign power.” See ie. (the FISA court

must limit its review to determining whether probable cause to believe that these two factors


CONCLUSION
Vor these reasons, the Court finds that the government has met its burden of establishing
the legality of the physical search of Defendant's Ashqar’s residence on December 26, 1993,

Accordingly, the Court denies Defendant Ashqar’s motion to suppress.

Dated: June 22, 2006 ENTERED

An. €

AMY Q\IVE
United States District Court Judge


1600 pages of documents and copied computer files. (/d.) In 2002, as part ofa grand jury
investigation, government prosecutors were permitted to review the materials obtained during the
physical search and thereafter received permission to use these materials as purt of the
investigation and prosecution of this case. (/¢.) In the course of discovery in this case, the
government has tendered this material to Ashqar, and the government intends lo introduce some
or all of these documents into evidence at trial, (R. 196-1, Def.’s Motion at 92.) Ashqar moves
to suppress the items obtained from the 1993 physical search of his residence, arguing that the
VBI's warrantless search violated his rights under the l'ourth Amendment. (/i. at {{5.)
LEGAL STANDARD

I, Motions To Suppress

Federal Rule of Criminal Procedure 41(h) provides that “[a] defendant may move to
suppress evidence in the court where trial will occur, as Rule 12 provides,” Fed. R. Crim, Pro,
4)(h), and Rule 12, in turn, provides that suppression motions must be made’ before trial, See
Fed. R. Crim. P. 12(b)(3)(C).. When a defendant’s motion to suppress raises a l’ourth
Amendment challenge to a warrantless search, the government bears the burden of establishing
legality. See United States v. Rosselli, 506 F.2d 627, 629 (7" Cir. 1974) (“The burden of
justifying a warrantless, forcible entry into a private home is, of course, uport the government.”);
see also United States v. Longmire, 761 F.2d 411, 417 (7" Cir. 1985) (*[t]hose seeking to invoke
an exception to the warrant requirement bear the burden of establishing that the circumstances

required dispensing with that requirement”).


2.4 Collection Techniques. Agencies within the Intelligence Community shall use the
least intrusive collection techniques leasible within the United States or directed against
United States persons abroad. Agencies are not authorized to use such techniques as
electronic surveillance, unconsented physical search, mail surveillance, physical
surveillance, or monitoring devices unless they are in accordance with! procedures
established by the head of the agency concerned and approved by the Attorney General.
Such procedures shall protect constitutional and other legal rights and-limit use of such
information to lawful governmental purposes.

* + +

2.5 Attorney General Approval. The Attorney General hereby is delegated the power to
approve the use for intelligence purposes, within the United States or against a United
States person abroad, of any technique for which a warrant would be required if
undertaken for law enforcement purposes, provided that such techniques shall not be
undertaken unless the Attorney General has determined in each case that there is probable
cause to believe that the technique is directed against a foreign power or an agent of a
foreign power, Electronic surveillance, as defined in the Foreign Intelligence
Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this
Order.
Lixee, Order 12,333, §§ 2.4, 2.5, 46 FR 59941 (1981). Before President Reagan issued this
Mxecutive Order in 1981, other Presidents had issued executive orders lo similar effect, See
Exee. Order 12,036, 43 FR 3674 (1978) (issued by President Carter and subsequently revoked by
President Reagan’s order, prohibiting warrantless physical searches cither conducted in the
United States or directed against United States persons abroad “unless the President has
authorized the type of activity involved and the Attomey General has both approved the
particular activity and determined that there is probable cause to believe that the United States
person is an agent of a forcign power”); Exec. Order 11,905, 41 FR 7703 (1976) (issued by

President Ford and subsequently revoked by President Carter’s order, prohibiting intelligence ~

agencies from conducting “unconsented physical searches within the United States; or


“The exclusionary rule prevent} 8] the use of evidence obtained in violation of [the
Fourth] [A]mendment [and] protects [the Fourth Amendment's] guarantees by deterring lawless
conduct by federal officers, and by closing the doors of the federal courts lo any use of evidence
unconstitutionally obtained.” United States v, Fields, 371 F.3d 910, 914 (7 Cir, 2004) (internal
quotation omitted), But because “the Fourth Amendment docs not expressly preclude the use of
evidence obtained through its violation . .. the exclusionary rule ‘operates as a judicially created
remedy .. . rather than a personal constitutional right of the party aggrieved.’ United States v,
Real Property Located at 15324 County Highway E., 332 F.3d 1070, 1076 n.7 (7" Cir. 2003)
(quoting United States v, Leon, 468 U.S, 897, 906, 104 8, Ct. 3405, 3412, 82 L. Ed. 2d 677
(1984)), Accordingly, “[e}xclusion is not automatic but discretionary, turning on ‘a congertes of
factors, including such clements as the deterrent purpose of the exclusionary rule, the importance
of judicial integrity, and the likelihood that admission of evidence would encourage violations of
the Fourth Amendment.” United States y. Mansoori, 304 F.3d 635, 660-61 (7 Cir. 2002)
(quoting United States y. Gaines, 555 V.2d 618, 623-24 (7 Cir. 1977)). “Suppression of
evidence [under the exclusionary rule], however, has always been [a] last resort, not la] first
impulse.” Hudson y, Michigan, 8. Ct, 2006 WL. 1640577, *4 Gune 15, 2006),

A. Delerrence

Because “t]he purpose of suppression of evidence obtained in an unreasonable search is
to deter violations by officers of the Fourih Amendment .. . _ the exclusionary rule should not be
applied when its application will not result in appreciable deterrence,” United States v. Grap, -
403 F.3d 439, 444-45 (7" Cir, 2005) (internal quotation omitted); United States v. Salgado, 807

F.2d 603, 607 (7" Cir, 1986) (“the exclusionary rule is a sanction, and sanctions are supposed to

“17- o



lines in Ashqar’s residence pursuant to FISA, codified at 50 U.S.C. §§ 1801, et seq. (R. 277-1,

Gov't’s Resp. at 1, 5.) Specifically, the FISA court found: (1) probable cause to believe that
Ashgar, who was not a United States person, was an agent of a foreign power, Hamas; (2) that
the targeted telephone and facsimile lines at his home were being, or about lobe used, by an
agent ol'a foreign power; and (3) that the Attorney General had certified that the purpose of the
requested clectroni¢ surveillance was to obtain forcign intelligence pertaining to Ashqar and
Hamas. (/e. at 5.) In late November 1993, the FISA court, pursuant to a second ISA
application, extended the electronic surveillance on the telephone and facsimile lines in Ashqar’s
residence, (/d.) Defendant appealed the FISA court’s findings, and the Seventh Circuit, after
“conduct[ing] a careful in camera and ex parte review of the entire record in this matter,”
“conclude[d] that the 'iSA court properly granted the applications.” Jn re Grand Jury
Proceedings of Special April 2002 Grand Jury, 347 F.3d 197, 205 (7"" Cir. 2003) (“All of the
requisite certifications are in order. The Appellant’s remaining objections (o the legality of the
FISA surveillance (specifically, his claims of wrong-doing or iMegal intent by the Attomey
General) are wholly without basis in the record... . [he MISA surveillance was not illegal...”
(parentheses in original}).

Shortly afier receiving approval of the second l‘ISA application, the Attorney General,
pursuant to Section 2.5 of Executive Order 12,333, approved a request from the I'B31 to execute a
physical search of Ashqar’s residence. (R. 277-1; Gov’t’s Resp. at 6.) At that time, FISA did not
provide for a method to obtain authorization to conduct physical searches, only electronic
surveillance. On December 26, 1993, pursuant to the Attorney General’s approval, the FBI

executed that search when Ashqar’s residence was unoccupied and photographed approximately

ae


time it conduets foreign intelligence surveillance.”). As Defendant and amicé point out, Truong,
and the other circuit cases cited above, considered the constitutionality of foreign intelligence
electronic surveillance conducted in the pre-1{SA context. not physical searches like the one at
issue here. That distinction, however, does not affect the ullimate outcome in this case because
the above-cited cases establish that before Congress expanded ‘ISA to include physical searches
the Exceutive Branch maintained the authority to conduct warrantless forcign intelligence
investigation, which would include physical searches.” Nicholson, 955 F. Supp. at 591 (“the
physical searches in question here are constitutionally indistinguishable from the
FISA-authorized electronic surveillance unanimously upheld by federal courts”); Bin Laden, 126
F, Supp. 2d at 285 (finding that “the forcign intelligence exception to the warrant requirement
applies with equal [orce to residential searches” because courts “considering the relative
intrusiveness of residential searches and clectronic surveillance, generally seem to conclude that
neither automatically merits greater protection {rom the Fourth Amendment”): Global Relief
Found., 207 F, Supp. 2d at 807. ‘To be sure, I'ISA now governs the process for obtaining

authorization for foreign intelligence physical scarches in circumstances similar to the ones here,

° ‘The amici contend that the Supreme Court’s decision in Abel y, United States, 362

U.S. 217, 80 S. Ct. 683, 4 L. Fd. 2d 668 (1960) stands for the proposition that the Fourth
Amendment's “warrant standards” apply to warrantless national security physical searches. The
amici’ reliance on Abed is misplaced, Abel does not address the “foreign intelligence” exception
at all as it deals instead with a search and seizure of evidence “without a search warrant, after an
alien suspected and officially accused of espionage has been taken into custody for deportation,
pursuant to an administrative warrant, bul has not been arrested for the commission ofa crime.”
fei, al 218-19, 80'S. Ct. at 686-87.

26-



on the present facts, the Court concludes that the search at issue nonetheless satisfics the Fourth

Amendment’s reasonableness requirement and falls within the “foreign intelligence” exception to
the Fourth Amendment’s general warrant requirement.'
BACKGROUND

The following facts are not contested by the partics’ and are relevant to the Court’s ruling
on the Motion? In August 2004, at his detention hearing following his arrest on the Second
Superseding Indictment, Ashgar learned for the first time that, in December 1993, the Federal
Bureau of Investigation (“I’BI”) had physically searched his personal residence at 7 Rubin Drive,
Oxford, Mississippi. (R. 196-1, Def.’s Motion at J.) The government did not obtain a warrant

before searching Ashqar’s residence and neither Defendant nor any one cls¢ consented to the

search. (Jel at 93.) Prior to this search, in September 1993, the FBI submitted a classified in
camera ex parte application to the Foreign Intelligence Surveillance Act (“FISA”) court, which

thereafter authorized the FBI to conduct clectronic surveillance on the telephone and facsimile

! In addition to considering the parties’ submissions, the Court also has analyzed

the arguments presented by the American Civil Liberties Union and the Centér lor National
Security Studies in the amicus curiae brief they submitted in support of Defendant's motion. (R.
375-1, Amicus Br.)

Because the facts are not in dispute a hearing on Defendant's suppression motion,
as Defendant himself concedes (R. 382-1, Def.’s Reply at 38 n.16), is not necessary
notwithstanding the amici’s claim that “there is much to be tried.” (R. 375-1, Amicus Br, at 4
(further noting that “[aJmici will not be a participant in such a hearing other than to express their
opinions as amici curiae”).)

; This Opinion assumes familiarity with the Court’s previous Opinion on Ashqar’s
Mation to Dismiss Count I of the Indictment and incorporates the summary of those allegations
here, Uniled States v. Marzook, No. 03 CR 978, 2005 WL 3095543, *1 (N.D. Ill, Nov. 17,
2005). .


743 F.2d at 77). Indeed, once the proper executive branch officials make the requisite
certifications under PISA, the FISA applications are “subjected to only minimal scrutiny by the
courts.” Duggan, 743 F.2d at 77. “Congress deemed it a sufficient check in this regard to
require the FISA Judge (1) to find probable cause to believe that the target of the requested
surveillance is an agent of a foreign power; (2) to find that the application is complete and in
proper form; and (3) when the target is a United States person, to find that the certifications are
not ‘clearly crroneous.’” Jed. (further noting that “Congress intended that, when a person affected
by a PISA surveillance challenges the ISA Court's order, a reviewing court is lo have no greater
authority to second-guess the executive branch’s certifications than has the FISA Judge”), ciled
with approval in In re Grand Jury Proceedings, 347 F.3d at 205.

Courts uniformly have held that ISA procedures satisfy the [ourth Amendment’s
reasonableness requirement, United States v. Johnson, 952 F.2d 565, 573 (1* Cir, 1991) (FISA
satisfies Fourth Amendment’s reasonableness requirement); Cavanagh, 807 F.2d at 790 (“PISA
satisties the constraints (he Fourth Amendment places on foreign intelligence surveillance
conducted by the government.”); Duggan, 743 F.2d at 73 (“We regard the procedures fashioned
in PISA as a constitutionally adequate balancing of the individual’s Fourth Amendment rights
against the nation’s need to obtain foreign intelligence information.”); United States v. Sattar,
No, 02 CR. 395 JGK, 2003 WI. 22137012, *14 (S.D.N.Y. Sept. 15, 2003) (*fFhis Court's ex
parte, in camera review of the ISA applications and orders has made clear that the surveillances
at issue were lawfully authorized and executed. ‘Therefore, those surveillances were performed
in accordance with the statutorily established court authorized procedure that patisfics the Fourth

Amendment.”); see also dn re Grand Jury Proceedings, 347 F.3d at 206 (“All courts to consider

-13-


unconsented physical searches directed against United States persons abroad, ‘except lawful
searches under procedures approved by the Attorney General”); see also United States v. United
States Dist. Court for Eastern Dist, of Mich., Southern Division (Keith), 407 U.S. 297, 310, 92 8.
Ct 2125, 2133, 32 L, Ed. 2d 752 (1972) (“In the discharge of [the] duty [to preserve, protect, and
defend the Constitution], the President — through the Attorney General — may’find it necessary to
employ electronic surveillance to obtain intelligence information on the plans-of those who plot
unlawful acts against the Government. The use of such surveillance in internal securi ty cases has
been sanctioned more or less continuously by various Presidents and Attorneys General since
July 1946."), The Court has reviewed the FBI's application under Executive Order 12,333, and
the Attomey General in fact certified that there was probable cause to believe that the physical
search of Ashqur’s residence was directed against an agent of a foreign power,

fl. The Exelusionary Rule :

Defendant Ashqur secks to suppress the evidence seized from his residence in 1993
pursuant to the exclusionary rule. Contrary to Defendant’s contention, however, even if the
physical search at his residence does not fall within an exception to the Warrahts Clause of the
Fourth Amendment, the exclusionary rule docs nol apply. See also United States v. Lspinoza,
256 F.3d 718, 724 (7" Cir, 2001) (“whether the exclusionary rule is appropriately imposed in a
particular case is an issue separate [rom the question whether the Fourth Amendment rights of
the party seeking to invoke the rule were violated by police misconduct” (internal quotation
omitted); Sutton, 336 F.3d at 553 (“| WJhile a reasonableness determination necessarily depends
on a number of factors, fashioning and applying an appropriate remedy once a’search is deemed

unreasonable presents a different issue.”),

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