On Monday, the government submitted unclassified and classified motions asking Magistrate Judge John O’Sullivan to reconsider his order that the government defend the constitutionality of the FISA Amendments Act in their case against Raees and Sheheryar Qazi, two Pakistani Americans charged with conspiring to use a WMD. While the government admits there was never a real plot, Raees was allegedly reaching out to al Qaeda and the FBI found batteries and Christmas lights in Sheheryar’s place, where Raees lived, which the government claims were to be used to make a bomb.
I’ll get into the long, ongoing dispute about the FAA in this case.
But before I do, note that in August 2013, over 8 months after the brothers had been arrested and 4 months after the older brother, Sheheryar, had demanded notice if the government had used FISA Amendments Act against him, the government obtained warrants; the government provided those warrants while handing over content obtained under a warrant from Yahoo and Hotmail, precisely the kind of content the government obtains under PRISM using Section 702 authority.
While I can’t know whether the government obtained warrants for content originally obtained under FAA, O’Sullivan permitted a constitutional challenge to FAA even without notice from the government that it had been used against the brothers (though last July the government did submit an response to Sheheryar’s challenge to FISA that discussed 3 different authorities; see section IB).
You do the math.
As I said, this challenge goes back some time, to April 2013, in the wake of both Dianne Feinstein’s naming of the brothers in a speech defending the reauthorization of the FAA and the Amnesty v. Clapper decision ruling that judged the plaintiffs didn’t have standing, but that defendants who did would be accorded the opportunity to challenge the constitutionality of the law.
Of particular interest, after the government originally refused to give notice to the brothers on whether it had used FAA to get them, Sheheryar asked specifically whether the government used 702 information in the affidavit to obtain the content and physical search FISA warrants used against the brothers (probably targeted, as I said, at Raees). The government reacted particularly aggressively to that affidavit request, as if Sheheryar struck close to the bone.
Which brings us to the argument the government is now making to Sheheryar’s constitutional challenge. The government says that Sheheryar Qazi should not be able challenge the constitutionality of the FISA Amendments Act because it will not introduce any FAA-derived information against him at trial.
Thus, in order for a defendant to move to suppress FISA or FAA-obtained or derived evidence, the defendant must be: ( 1) “a person against whom evidence obtained or derived from” (2) “an electronic surveillance” [or physical search] (3) “to which he is an aggrieved person” (4) “is to be, or has been, introduced or otherwise used or disclosed” (5) in a “trial, hearing or other proceeding.”
Because the government has not and does not intend to use or disclose in trial any evidence obtained or derived from FAA-authorized surveillance as to which Movant is an aggrieved person, Movant cannot demonstrate any sort of concrete, particularized and actual or imminent injury, much less an injury “fairly traceable” to the FAA. Movant also cannot possibly demonstrate that any resolution of the constitutionality of the FAA would redress any injury.
It says this even as it is working on a separate theory why Sheheryar’s brother, Raees, against whom the primary traditional FISA warrant was almost certainly targeted, cannot challenge FAA’s constitutionality, either. The government appears to be less sure that they can argue with a straight face that none of the evidence they’ll submit at trial against Raees derived from FAA.
But that motion is due after a May 9 hearing in which the judge will consider whether Sheheryar’s counsel, Ronald Chapman, must withdraw as counsel because he witnessed an alleged altercation between the brothers are two Marshals in a SCIF on April 8 (Chapman just submitted a statement that he has no conflict under FL Bar rules). That same day, April 8, Raees joined in his brother’s demand on the constitutionality of FAA, and I wouldn’t be surprised if the government argued Raees improperly joined his brother’s request because of that meeting.
The government suggests it may file additional charges against the brothers for the alleged altercation. At which point they’ll probably drop these flimsy terrorism charges, bust the brothers for assault, and avoid having to reveal the shell game by which they came to arrest the brothers in the first place.
2010: Raees identified by security guard at Miami airport
2011: Raees returns home; FISA-authorized surveillance begins
November 29, 2012: Raees arrested upon return from NYC
November 30, 2012: Raees indicted along with his older brother, Sheheryar
December 6, 2012: Both brothers given identical notice of intent to use FISA-derived evidence
December 27, 2012: Dianne Feinstein names the brothers in speech supporting renewal of FISA Amendments Act
February 26, 2013: Ruling in Amnesty v. Clapper
April 7, 2013: Sheheryar moves for review of FISA
April 8, 2013: Robert Scola refers FISA motion to magistrate John O’Sullivan
April 15, 2013: Government asks for extension on FISA response
April 18, 2013: Raees files unopposed motion to join on FISA challenge
April 22, 2013: Sheheryar moves motion for advance notice of FAA
April 23, 2013: Raees files unopposed motion to join on FAA notice
April 25, 2013: Government files motion claiming FAA notice is moot because of prior FISA notice
May 2, 2013: In reply to government opposition, Sheheryar restates the question, asks whether FISA affidavits relied on FAA
May 6, 2013: Judge grants motion
May 9, 2013: Government moves for reconsideration
May 14, 2013: Sheheryar responds citing Clapper
May 25, 2013: Sheheryar response
June 5, 2013: First Snowden documents; O’Sullivan stays order on notice on FAA pursuant to government filings on FISA
July 8, 2013: Raees calls to reconsider stay
July 16, 2013: Government moves for extension on FISA
July 17, 2013: Judge grants extension
August 21, 2013: Government obtains warrants for Yahoo, Hotmail
September 10, 2013: Sheheryar responses to FISA related motions
October 23, 2013: Sheheryar notices Savage article on DOJ debates over FAA notice
March 14, 2014: Scola refers FAA unconstitutional motion to O’Sullivan
March 28, 2014: O’Sullivan orders government to provide substantive memo of law on FAA constitutionality
April 8, 2014: Raees moves to adopt constitutional challenge; Raees and Sheheryar allegedly assault 2 deputy Marshals in a SCIF, with Sheheryar lawyer present
April 10, 2014: Government asks for extension, in part because of assault
April 28, 2014: Government submits motion to reconsider, along with sealed motion
April 30, 2014: Scola calls May 9 hearing on whether Chapman can continue to represent Sheheryar