Can the Government Use FISA to Get Evidence of Past Criminal Activities?

A terror support case due to start in NYC in December seems to present some interesting questions about the use of EO 12333 and FISA evidence. Ahmed Mohammed El Gammal was arrested last year on charges he helped someone else — who apparently got killed in Syria — travel to and train for ISIL. After almost a year and several continuations, the government provided notice they intended to use material gathered under a FISA physical surveillance order (but not an electronic surveillance order). The case clearly involves a ton of Internet communications; the defense proposed voir dire questions ask if potential jurors are familiar with Twitter, Tango, Whatsapp, Cryptocat, Viber, Skype, Surespot or Snapchat, and asks how much potential jurors use Facebook.

After the government submitted the FISA notice, El Gammal’s lawyers submitted three filings: one seeking access to CIPA information, one seeking to suppress the FISA material, and one asking where all the other surveillance came from.

The FISA complaint, aside from the standard challenge, appears to stem from both the delay in notification and some concerns the government did not adhere to minimization procedures (in the defense reply, they noted that the government had already released minimization procedures but refused to do so here). In addition, the FISA challenge suggests the government used FISA to “was to gather evidence of his past criminal activity,” which it argues is unlawful. His lawyers also seem to question whether there was no other way to obtain the information (which is particularly interesting given the delayed notice).

In addition, the government’s response describes some of the reasons El Gammal’s lawyers suspect the government used some kind of exotic (probably 12333) surveillance against him (some of which are partly or entirely redacted in the defense filings).

The defendant’s motion speculates that the Government relied upon undisclosed techniques when it (1) “appears to have sought information about El Gammal from at least two entities—Verizon and Yahoo—before his identity seems to have become known through the criminal investigation,” (Def. Memo. 3) (2) “seems to have learned about El Gammal before receiving, in the criminal investigation, the first disclosure that would necessarily have identified him,” (Def. Memo. 5) and (3) appeared to have “reviewed the contents of [CC-1’s] [social media] account before [the social media provider] made its Rule 41 return” (Def. Memo. 5). This speculation is baseless. The Government has used a number of investigative techniques in this case. Not all of those techniques require notice or disclosure at this (or any) stage of the investigation.2 And the Government has complied with its notice and disclosure obligations to date.

2 Additional background regarding this investigation is provided in Section IV.A. of the Government’s September 23, 2016 Classified Memorandum in Opposition to the Defendant’s Pretrial Motion to Suppress, and for the Disclosure of the FISA Order, Application, and Related Materials.

It appears that the government had obtained Facebook material (the primary social media involved here) either under Section 702 or EO 12333, then parallel constructed it via warrant. And it appears to suggest the involvement of some kind  of programmatic Verizon and Yahoo collection that may not have been disclosed (El Gammal was in custody before the end of the old phone dragnet).

Particularly given the timing (in the wake of FBI obtaining a way to get into Syed Rezwan Farook’s phone), I had thought the physical search might have been to decrypt El Gammal’s iPhone, but it appears the government had no problems accessing the content of multiple Apple devices.

There’s no reason to think El Gammal will have any more luck obtaining this information than previous defendants seeking FISA and 12333 information have been.

But his lawyers (SDNY’s excellent public defenders office) do seem to think they’re looking at something more programmatic than they’ve seen before. And they do seem to believe those techniques are being parallel constructed.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

5 replies
  1. bmaz says:

    In answer to the title question, Ima hazard a guess…..yes. Should be a fascinating motion argument, but can’t see the court disallowing it. Hope we get to see more, rather than less, of the argument and resulting order.

  2. Evangelista says:

    This looks like it could have been a really good test-case to query the legal propriety of Federales Fishing in the FISA (or Phederales Phishing in the PHISA?) rain barrel.

    But now, with the Syrians, with the aid of the Russians, kicking the Rebels’ ISIS in Aleppo and so phorcing the United States Government to have to openly and actively engage in the exact same activities primarily charged on the original allegation against “Jammie” Gammal, to wit, aiding and abetting in transporting and training inductees into, to and through foreign terrorist organizations, the case will have to be thrown out, dropped, or dismissed, won’t it? And we lose our one best chance to legal-decision-wise find out! Damn!

    The alternative is, since Gammal did the deed ahead of the USG, going through the Gammal case and so providing a precedent. Soon as that happens, of course, somebody (Gammal? If he’s in the can he’ll have a flotilla of jail-house lawyers at his back) will file a Citizen’s Complaint against the USG, if the Feddies balk at going cannibal and so won’t pick up the ball. Whoever files, it will be the USG getting wrung through the same wringer it where it just wrang “Jammie” G..

    Any chance at all of that? Keep in mind the possibility of cascade-effect, since a result could be putting some more lawyers in the can, for more jail-house lawyers at “Jammie” Gammal’s back…

    [I was going to do another paragraph here, expressing hopes and fears, but I’m having trouble with too many typos for holding my fingers crossed. I’ll have to go and practice and then return…]

  3. martin says:

    quote: And they do seem to believe those techniques are being parallel constructed. “unquote

    If Chairman Trump were to be elected, parallel construction will become SOP for political prosecution in the United States of Trump..
    [edited for comment formatting]

  4. Hieronymus Howard says:

    Can the perpetrators of (alleged) parallel construction be rooted out, exposed & prosecuted?  Shouldn’t that be illegal?  He asked naively.

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