PATRIOT Games

United States v. Abu-Jihaad, No. 09-1375-cr (2d Cir. December 20, 2010) (Raggi, Hall, Chin, CJJ)

Defendant Hassan Abu-Jihaad, whose birth name was Paul R. Hall, was convicted of communicating national defense information about the movement of a Navy battlegroup to unauthorized persons. On appeal, his primary challenge was to the use of evidence that the government obtained pursuant to the Foreign Intelligence Surveillance Act (“FISA”). The circuit affirmed.

Background

Despite changing his last name from “Hall” to “Abu-Jihaad,” which, according to the court, means “Father of Jihad,” the defendant enlisted in the Navy in January of 1998 without any trouble. For the next four years he was cleared to receive classified national defense information. But a chain of circumstantial evidence revealed that, in 2001, he passed classified information about the movement of Navy ships headed for the Persian Gulf to other jihad supporters.

The investigation of Abu-Jihaad began after the 2003 search of the bedroom of one Babar Ahmad, a London-based individual with ties to Azzam publications, an organization that in 2001 maintained several pro-jihad websites. Authorities found a computer disc containing a file with a three-page document describing the anticipated spring 2001 deployment of ten Navy ships carrying about 15,000 people from the Pacific coast to the Persian Gulf.

The evidence proving that Abu-Jihaad had been the source of this information was strong, even if circumstantial. First, he had access to the information – out of hundreds of potential individuals, he was one of only forty with access to the relevant transit plan. Second, he had communicated with Azzam via email during the relevant period, and in those communications had revealed his personal support for jihad, even against the United States. Third, in 2006, he made statements in wiretapped telephone conversations in which he all but admitted what he had done.

After a jury trial, Abu-Jihaad was convicted and sentenced to the statutory maximum of ten years’ imprisonment.

The Appeal

On appeal, Abu-Jihad challenged the use of evidence obtained through court orders issued under FISA. He argued primarily that the statute, 50 U.S.C. 1801, et seq., as amended by the PATRIOT Act, was unconstitutional on its face.

FISA permits a special FISA court to authorize electronic surveillance “for the purpose of obtaining foreign intelligence information.” As originally enacted in 1978, FISA required a high-ranking executive branch official to certify that this was “the purpose” of the warrant. Courts, including the Second Circuit, noted that FISA intended for the gathering of foreign intelligence information to be the “primary” objective of the surveillance. But the 2001 PATRIOT Act changed this standard. Under the PATRIOT Act’s amendments to FISA, foreign intelligence gathering need no longer be the “primary” purpose of the requested surveillance; it need only be “a significant purpose.”

Abu-Jihad argued the “primary purpose” requirement was essential to the constitutionality of FISA surveillance under the Fourth Amendment, but the circuit disagreed. All the Fourth Amendment’s warrant requirement demands is a “showing of probable cause reasonable to the purpose being pursued.” But if multiple purposes are being pursued – such as both foreign intelligence gathering and a criminal investigation – the Fourth Amendment “does not require the government to identify a primary purpose or limit its ability to secure a warrant to satisfaction of the standards for that purpose.” Rather, the government may “secure a warrant under the probable cause standards applicable to any purpose that it pursues in good faith.”

The PATRIOT Act did not modify the standards underlying FISA’s warrant requirement. It only changed the degree to which foreign intelligence gathering must be the purpose of the surveillance. The change from certifying foreign intelligence gathering as a “significant” rather than a “primary” purpose of the surveillance is not unreasonable under the Fourth Amendment. Indeed, when the circuit first identified the “primary purpose” standard it was identifying Congress’ intent in enacting FISA, not creating a constitutional mandate.

But, in any event, there is no constitutional problem with the “significant purpose” requirement, because it sufficiently protects against the possibility that the government will be able to obtain surveillance warrants for criminal investigations without demonstrating probable cause. The Fourth Amendment does not require the government to segregate foreign intelligence gathering from law enforcement efforts. As long as foreign intelligence gathering is a “bona fide” purpose of the surveillance the Fourth Amendment is satisfied.