United States v. Adel Daoud

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1284
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
ADEL DAOUD,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 723 — Sharon Johnson Coleman, Judge.
____________________
ARGUED JUNE 4 & JUNE 9, 2014 * — DECIDED JUNE 16, 2014
* The fact that we heard oral argument twice before issuing our decision
is unusual and requires explanation. By inadvertence the device that
makes a sound recording of the oral arguments of our cases was not
turned on for the public argument in this case on June 4. (That argument
was followed by a classified argument, which was recorded stenograph-
ically by a court reporter who has the necessary security clearance. Our
present opinion pertains only to the public argument.) Recording,
whether aural or stenographic, of oral arguments is not required by law;
and the recordings are not required to be made public. Until our record-
ing equipment was installed some years ago, no record was made by the
court of the oral arguments. And initially the recordings were available
only to the judges. Eventually the court decided to make them available
to the public as well. Although under no legal obligation to conduct a
second oral argument in this case, we decided to do so because the acci-
2 No. 14-1284
____________________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The defendant, Adel Daoud, was
indicted first in September 2012 for attempting to use a
weapon of mass destruction and attempting to damage and
destroy a building by means of an explosive, in violation of
18 U.S.C. §§ 2332a(a)(2)(D) and 844(i), and next in August
2013 for having, in addition, later solicited a crime of vio-
lence, murder for hire, and witness tampering, in violation
of 18 U.S.C. §§ 373(a), 1958(a), and 1512(a)(1)(A), respective-
ly.
The first indictment arose out of an investigation that be-
gan in May 2012 when Daoud, an 18-year-old American citi-
zen and resident of Hillside, Illinois, a suburb of Chicago,
joined an email conversation with two undercover FBI em-
ployees posing as terrorists who had responded to messages
that he had posted online. The ensuing investigation, based
in part on a series of surveillance warrants, yielded evidence
that Daoud planned “violent jihad”—terrorist attacks in the
name of Islam—and had discussed his plans with “trusted
brothers.” He expressed interest in committing such attacks
in the United States, utilizing bombmaking instructions that
he had read both in Inspire magazine, an organ of Al Qaeda
that is published in English, and through internet searches.
One of his FBI correspondents put him in touch with an
undercover agent (a “cousin”) whom the correspondent rep-
resented to be a fellow terrorist. After meeting six times with
dental failure to record the argument occurred in a high-profile case in-
volving serious criminal charges.
No. 14-1284 3
the “cousin,” Daoud selected a bar in downtown Chicago to
be the target of a bomb that the agent would supply him
with. The agent told him the bomb would destroy the build-
ing containing the bar, and warned him that it would kill
“hundreds” of people. Daoud replied: “that’s the point.”
On September 14, 2012, Daoud parked a Jeep containing
the bomb in front of the bar. In a nearby alley, in the pres-
ence of the agent, he tried to detonate the bomb. Nothing
happened, of course, because the bomb was a fake. Daoud
was immediately arrested. It was while in jail a month later
that, according to the second indictment, he tried to solicit
someone to murder the undercover agent with whom he had
dealt.
The government notified the defendant, pursuant to 50
U.S.C. §§ 1806(c) and 1825(d)—sections of the Foreign Intel-
ligence Surveillance Act (FISA), 50 U.S.C. §§ 1801 et seq.—
that it intended to present evidence at his trial derived from
electronic surveillance that had been conducted under the
authority of the Act. Daoud responded through counsel with
a motion seeking access to the classified materials submitted
in support of the government’s FISA warrant applications.
Counsel hoped to show that the “evidence obtained or de-
rived from such electronic surveillance” had been based on
“information [that] was unlawfully acquired” or that “the
surveillance was not made in conformity with an order of
authorization or approval,” 50 U.S.C. § 1806(e), both being
grounds for suppression.
The government filed two responses: a heavily redacted,
unclassified response, accessible to Daoud and his lawyers,
and a classified version, accessible only to the district court,
accompanied by an unclassified statement by the Attorney
4 No. 14-1284
General that disclosure of the classified material, or an ad-
versarial hearing with respect to it, “would harm the nation-
al security of the United States”; the harm was detailed in a
classified affidavit signed by the FBI’s Acting Assistant Di-
rector for Counterterrorism.
The district judge studied the classified materials to de-
termine whether they should be shown to the defendant’s
lawyers, who have security clearances at the level at which
these materials are classified. The judge noted that counsel
was seeking “disclosure of classified documents that are or-
dinarily not subject to discovery,” that “no court has ever
allowed disclosure of FISA materials to the defense,” and
that a court may order such disclosure only where “neces-
sary” for “an accurate determination of the legality of the
surveillance,” 50 U.S.C. § 1806(f), or of the “physical search”
if that was how the FISA materials were obtained. § 1825(g).
Nevertheless, remarking that “the adversarial process is in-
tegral to safeguarding the rights of all citizens,” that the
Sixth Amendment presupposes “the right of the accused to
require the prosecution’s case to survive the crucible of
meaningful adversarial testing,” and that “the supposed na-
tional security interest at stake is not implicated where de-
fense counsel has the necessary security clearances,” the
judge ruled that “the probable value of disclosure and the
risk of nondisclosure outweigh the potential danger of dis-
closure to cleared counsel.” And so she ordered the materi-
als sought by defense counsel turned over to them. The or-
der, though interlocutory, was appealable immediately, and
the government appealed. 50 U.S.C. § 1806(h); 18 U.S.C.
App. III § 7.
No. 14-1284 5
She acknowledged that the Attorney General’s submis-
sion—stating that disclosure of the classified material, or an
adversarial hearing with respect to it, “would harm national
security”—had “trigger[ed] an in camera, ex parte procedure
[in the district court] to determine whether the surveillance
of the aggrieved person [Daoud] was lawfully authorized
and conducted.” FISA is explicit about this. It provides that
“if the Attorney General files an affidavit under oath that
disclosure or an adversary hearing would harm the national
security of the United States, [the court shall] review in cam-
era and ex parte the application, order, and such other mate-
rials relating to the surveillance as may be necessary to de-
termine whether the surveillance of the aggrieved person
was lawfully authorized and conducted. In making this de-
termination, the court may disclose to the aggrieved person,
under appropriate security procedures and protective or-
ders, portions of the application, order, or other materials
relating to the surveillance only where such disclosure is neces-
sary to make an accurate determination of the legality of the sur-
veillance.” 50 U.S.C. § 1806(f) (emphasis added).
So first the district judge must, in a non-public (“in cam-
era”), nonadversarial (“ex parte”) proceeding, attempt to de-
termine whether the surveillance was proper. If in attempt-
ing to determine this the judge discovers that disclosure to
the defendant of portions of the FISA materials is “neces-
sary,” the judge may order disclosure, provided there is ad-
equate security. The defendant’s brief tries to delete the stat-
utory requirement of sequential ex parte in camera district
court analysis by a cropped quotation from the statute: “the
court must review the FISA application, order, and related
materials ex parte and in camera, unless ‘disclosure [to the de-
fendant] is necessary to make an accurate determination of
6 No. 14-1284
the legality of the surveillance.’” The defendant’s misreading
of the statute would permit the district judge to avoid con-
ducting an ex parte review if the defendant’s lawyers be-
lieved disclosure necessary, since if the judge does not con-
duct the ex parte review she will have no basis for doubting
the lawyers’ claim of necessity. The statute requires the
judge to review the FISA materials ex parte in camera in every
case, and on the basis of that review decide whether any of
those materials must be disclosed to defense counsel. The
judge did not do that. She did not find that disclosure was
necessary, only that it “may be necessary.” Although she
read the FISA materials and concluded that she was “capa-
ble of making such a determination [an ‘accurate’ determina-
tion, as is apparent from a previous sentence in her order] of
the legality of the surveillance,” she refused to make the de-
termination, which if she was right in thinking she could
make an accurate determination would have obviated the
necessity for—and therefore the lawfulness of—disclosure of
the classified materials to defense counsel.
The judge appears to have believed that adversary pro-
cedure is always essential to resolve contested issues of fact.
That is an incomplete description of the American judicial
system in general and the federal judicial system in particu-
lar. There are ex parte or in camera hearings in the federal
courts as well as hearings that are neither or both. And there
are federal judicial proceedings that though entirely public
are nonadversarial, either partly or entirely. For example, a
federal district judge presiding over a class action is required
to determine the fairness of a settlement agreed to by the
parties even if no member of the class objects to it. Eubank v.
Pella Corp., 2014 WL 2444388, at *2 (7th Cir. June 2, 2014).
And when in a criminal case the prosecutor and the defend-
No. 14-1284 7
ant agree on the sentence to recommend, the judge must
make an independent determination whether the sentence is
appropriate. If, though it is within the range fixed by Con-
gress, he thinks the agreed-upon sentence too harsh or too
lenient, he is empowered (indeed required) to reject the
agreed-upon sentence and impose a different one within the
statutory range. United States v. Siegel, 2014 WL 2210762, at
*5 (7th Cir. May 29, 2014). Another familiar example of non-
adversarial federal procedure involves the “Anders brief”—a
brief in which a criminal defendant’s lawyer states that the
appeal is frivolous and therefore moves to be allowed to
withdraw from representing the defendant. See Anders v.
California, 386 U.S. 738 (1967). If the appellate court agrees,
his motion is granted and the appeal dismissed. Unless the
defendant expresses disagreement with the position taken
by his lawyer in the Anders brief (the court always invites the
defendant to respond to the brief but defendants often do
not), there is no adversary process. Yet the court proceeds to
make its own determination whether an appeal would be
frivolous. If the court disagrees, it denies the lawyer’s mo-
tion to withdraw and so retains the appeal.
Not only is federal judicial procedure not always adver-
sarial; it is not always fully public. Child witnesses, especial-
ly in sexual abuse cases, are often allowed to testify behind a
screen. Criminal defendants typically are allowed to conceal
from the jury most or even all of their criminal history. (No-
tice that in such a case, and in many other cases, secrecy in-
ures to the defendant’s benefit.) Objections to questions to
witnesses when sustained keep from the jury evidence that
jurors might be very interested in. Documents placed in evi-
dence may be redacted to conceal embarrassing material.
Trade secrets—and classified materials are a form of “trade
8 No. 14-1284
secret”—are routinely concealed in judicial proceedings.
And of course judicial deliberations, though critical to the
outcome of a case, are secret.
The propriety of government confidentiality is not lim-
ited to judicial proceedings. Though the Freedom of Infor-
mation Act provides broad access to information collected
by or generated within government, it has many exceptions.
5 U.S.C. § 552(b). The government’s records of people’s fi-
nances, collected by the Internal Revenue Service and other
agencies, are secret. So are medical records of persons en-
rolled in Medicaid, Medicare, and the Veterans Administra-
tion’s hospital system. Employment files for the millions of
federal employees are secret, as are public school teachers’
evaluations of children, government social workers’ judg-
ments about their clients, and deliberations of a wide range
of government officials, not limited to judges—for example,
the doctrine of executive privilege shields many of the inter-
nal communications of executive-branch officials. The meth-
ods used by police to audit and investigate, to decide where
to set up roadblocks and hide plainclothes officers, are se-
cret, as are their communications with and the names of
their confidential informants unless the informants testify.
Everyone recognizes that privacy is a legally protectable
interest, and it is not an interest of private individuals alone.
The Foreign Intelligence Surveillance Act is an attempt to
strike a balance between the interest in full openness of legal
proceedings and the interest in national security, which re-
quires a degree of secrecy concerning the government’s ef-
forts to protect the nation. Terrorism is not a chimera. With
luck Daoud might have achieved his goal of indiscriminately
killing hundreds of Americans—whom he targeted because,
No. 14-1284 9
as he explained in an email, civilians both “pay their taxes
which fund the government’s war on Islam” and “vote for
the leaders who kill us everyday.”
Conventional adversary procedure thus has to be com-
promised in recognition of valid social interests that compete
with the social interest in openness. And “compromise” is
the word in this case. Daoud was first indicted almost two
years ago. Defense counsel have been conducting discovery
and have submitted extensive factual allegations to the dis-
trict court. Those allegations—made in an extensive proffer
by the defendant—were before the district judge when she
was considering whether to disclose any of the classified
FISA materials to defense counsel, along with the factual al-
legations made by the government as the result of its inves-
tigation. It was her obligation to evaluate the parties’ allega-
tions in light of the FISA materials to determine whether she
could assess the legality of those materials herself, without
disclosure of them to Daoud’s lawyers.
The defendant’s lawyers place great weight on the diffi-
culty of conducting a Franks hearing to determine the legali-
ty of a warrant to conduct FISA surveillance. Franks v. Dela-
ware, 438 U.S. 154 (1978), held that a defendant can challenge
a search or arrest warrant on the ground that it was pro-
cured by a knowing or reckless falsehood by the officer who
applied for the warrant. Id. at 155–56. Defense counsel
would like to mount such a challenge in this case. But that’s
hard to do without access to the classified materials on
which the government relied in obtaining a warrant to ob-
tain access to Daoud’s communications. The drafters of the
Foreign Intelligence Surveillance Act devised a solution: the
judge makes the additional determination, based on full ac-
10 No. 14-1284
cess to all classified materials and the defense’s proffer of its
version of events, of whether it’s possible to determine the
validity of the Franks challenge without disclosure of any of
the classified materials to the defense. The judge in this case
failed to do that.
She seems to have thought that any concerns about dis-
closure were dissolved by defense counsel’s security clear-
ances. She said that “the government had no meaningful re-
sponse to the argument by defense counsel that the sup-
posed national security interest at stake is not implicated
where defense counsel has the necessary security clearanc-
es”—as if disclosing state secrets to cleared lawyers could
not harm national security. Not true. Though it is certainly
highly unlikely that Daoud’s lawyers would, Snowden-like,
publicize classified information in violation of federal law,
they might in their zeal to defend their client, to whom they
owe a duty of candid communication, or misremembering
what is classified and what not, inadvertently say things that
would provide clues to classified material. Unless and until
a district judge performs his or her statutory duty of at-
tempting to determine the legality of the surveillance with-
out revealing any of the fruits of the surveillance to defense
counsel, there is no basis for concluding that disclosure is
necessary in order to avert an erroneous conviction.
It’s also a mistake to think that simple possession of a se-
curity clearance automatically entitles its possessor to access
to classified information that he is cleared to see. (The levels
of classification differ; someone cleared for Secret infor-
mation is not entitled to access to Top Secret information.)
There are too many leaks of classified information—too
much carelessness and irresponsibility in the handling of
No. 14-1284 11
such information—to allow automatic access to holders of
the applicable security clearances. More than a million and a
half Americans have security clearances at the Top Secret
level, which is the relevant level in this case. Office of Man-
agement and Budget, “Suitability and Security Processes Re-
view: Report to the President,” Feb. 2014, p. 3,
www.whitehouse.gov/sites/default/files/omb/reports/suitabi
lity-and-security-process-review-report.pdf (visited June 14,
2014). Like the Fifth Circuit in United States v. El-Mezain, 664
F.3d 467, 568 (5th Cir. 2011), “we are unpersuaded by the de-
fendants’ argument that the Government’s interest [in confi-
dentiality] is diminished because defense counsel possess
security clearance to review classified material.”
So in addition to having the requisite clearance the seeker
must convince the holder of the information of the seeker’s
need to know it. If the district judge’s threshold inquiry into
whether Daoud’s lawyers needed any of the surveillance
materials revealed that they didn’t, their security clearances
would not entitle them to any of those materials. The statute
says that disclosure of such materials to them must be “nec-
essary”; even without that word (the vagueness of which in
legal contexts is legendary, as lucidly explained in Cellular
Telecommunications & Internet Ass’n v. FCC, 330 F.3d 502,
509–12 (D.C. Cir. 2003)), the judge in this case would have
had to determine the lawyers’ need for the materials—more
precisely, her need for them to have access to the materials
so that she could make an accurate determination of the le-
gality of the challenged surveillance. Rather than asserting
such a need, she affirmed her capability of making an accu-
rate determination without disclosing any classified materi-
als to defense counsel. Because she was “capable” of making
the determination, disclosure was not “necessary” under any
12 No. 14-1284
definition of that word. We conclude regretfully that the
judge thus disobeyed the statute.
Our own study of the classified materials has convinced
us that there are indeed compelling reasons of national secu-
rity for their being classified—that the government was be-
ing truthful in advising the district judge that their being
made public “would harm the national security of the Unit-
ed States”—and that their disclosure to the defendant’s law-
yers is (in the language of section 1806(f)) not “necessary”
for “an accurate determination of the legality of the surveil-
lance.” So clear is it that the materials were properly with-
held from defense counsel that there is no need for a remand
to enable the district judge to come to the same conclusion,
because she would have to do so.
Not only do we agree with the district judge that it is
possible to determine the legality of the government’s inves-
tigation of Daoud without disclosure of classified materials
to his lawyers; our study of the materials convinces us that
the investigation did not violate FISA. We shall issue a clas-
sified opinion explaining (as we are forbidden to do in a
public document) these conclusions, and why therefore a
remand to the district court is neither necessary nor appro-
priate.
One issue remains to be discussed. After the first oral ar-
gument, we held a brief in camera hearing at which questions
were put by the panel to the Justice Department’s lead law-
yer on the case concerning the classified materials. Only
cleared court and government personnel were permitted at
that hearing. The defendant’s lawyers, before leaving the
courtroom as ordered, objected to our holding such a hear-
ing and followed up their oral objection with a written mo-
No. 14-1284 13
tion. Their objecting to the classified hearing was ironic. The
purpose of the hearing was to explore, by questioning the
government’s lawyer on the basis of the classified materials,
the need for defense access to those materials (which the
judges and their cleared staffs had read). In effect this was
cross-examination of the government, and could only help
the defendant.
Defense counsel’s written motion cites no authority for
forbidding classified hearings, including classified oral ar-
guments in courts of appeals, when classified materials are
to be discussed. We don’t think there’s any authority it could
cite. The propriety of such hearings was confirmed in United
States v. Sedaghaty, 728 F.3d 885, 891 and n. 2 (9th Cir. 2013);
cf. American Civil Liberties Union v. Department of Justice, 681
F.3d 61, 66, 70 (2d Cir. 2012). But we are granting the request
of the defendant’s lawyers for a redacted transcript of our
classified hearing.
Finally, for future reference we suggest that when a dis-
trict judge is minded to disclose classified FISA materials to
defense counsel—a decision bound to precipitate an appeal
by the government—the judge issue a classified statement of
reasons, as it probably will be impossible to explain in an
unclassified opinion all the considerations motivating her
decision. In this case, however, our review of the materials
persuades us both that there was no basis for disclosure and
that a remand would be of no value.
The order appealed from is
REVERSED.
14 No. 14-1284
ROVNER, Circuit Judge. concurring. I join the court’s opinion
in full. I write separately to address the difficulty of reconciling
Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676
(1978), with a proceeding in which the defense has no access to
the FISA application that resulted in court-authorized surveil-
lance of the defendant. As the court has recognized, ante at 9,
this is one of the principal arguments that Daoud made in
support of his request for disclosure of the FISA application.
Franks holds that a search warrant must be voided and the
fruits of the search excluded from evidence when (1) a defen-
dant proves by a preponderance of the evidence that the
affidavit on which the search warrant was based contained
false statements that were either deliberately or recklessly
made, and (2) the court determines that the remainder of the
affidavit was insufficient by itself to establish probable cause.
Id. at 155-56, 98 S. Ct. at 2676. The Franks framework applies to
misleading omissions in the warrant affidavit (so long as they
were deliberately or recklessly made) as well as to false
statements. E.g., United States v. McMurtrey, 704 F.3d 502, 508-
09 (7th Cir. 2013) (collecting cases).
Daoud asserted that the government’s FISA application
might contain material misstatements or omissions; but, of
course, because the application is classified and his counsel has
not seen it, he could present this only as a possibility. He
therefore made a pro forma request for a Franks hearing, but
argued principally that, without access to the FISA application,
he could not make the preliminary showing that is ordinarily
required before the court will conduct such a hearing. R. 52 at
18-19.
In making a blind request for a hearing and relief under
Franks, Daoud is presented with the same conundrum that
No. 14-1284 15
every defendant charged on the basis of FISA-acquired
evidence encounters. A Franks motion is premised on material
misrepresentations and omissions in the warrant affidavit; but
without access to that affidavit, a defendant cannot identify
such misrepresentations or omissions, let alone establish that
they were intentionally or recklessly made. As a practical
matter, the secrecy shrouding the FISA process renders it
impossible for a defendant to meaningfully obtain relief under
Franks absent a patent inconsistency in the FISA application
itself or a sua sponte disclosure by the government that the
FISA application contained a material misstatement or omis-
sion. To date, courts have either overlooked the problem or
acknowledged it without being able to identify a satisfactory
work-around.
I believe it is time to recognize that Franks cannot operate in
the FISA context as it does in the ordinary criminal case. To
pretend otherwise does a disservice to the defendant and to the
integrity of the judiciary. We must recognize both that the
defendant cannot make a viable Franks motion without access
to the FISA application, and that the court, which does have
access to the application, cannot, for the most part, independ-
ently evaluate the accuracy of that application on its own
without the defendant’s knowledge of the underlying facts.
Yet, Franks serves as an indispensable check on potential
abuses of the warrant process, and means must be found to
keep Franks from becoming a dead letter in the FISA context.
The responsibility for identifying a solution lies with all three
branches of government, but as the branch charged with
applying Franks, the duty falls to the judiciary to acknowledge
the problem, make such accommodations as it can, and call
upon the other branches to make reforms that are beyond our
power to implement.
16 No. 14-1284
Toward that end, I think it useful to devote some attention
to the holding and rationale of Franks, what it requires of the
defendant in the ordinary criminal case, what courts have said
about Franks in the FISA context, how ex parte, in camera
proceedings hobble the Franks inquiry, and possible solutions
to the problem.
1.
It was in Franks that the Supreme Court first acknowledged
the right of a criminal defendant to attack the veracity of the
affidavit underlying a search warrant and to have the fruits of
the search suppressed if the warrant would not have issued but
for misrepresentations made in the affidavit. Prior to that
holding, although a majority of courts had come to the conclu-
sion that such challenges should be permitted, there remained
a division of authority on this point at both the federal and
state levels. See id. at 159-60 nn.3-4 & App. B, 98 S. Ct. at 2678
nn.3-4 & App. B; (collecting conflicting rulings). In Franks itself,
the Delaware Supreme Court had altogether foreclosed
impeachment of the warrant affidavit, reasoning in part that it
was “the function of the issuing magistrate to determine the
reliability of information and credibility of affiants in deciding
whether the requirement of probable cause has been met” and
that “[t]here has been no need demonstrated for interfering
with this function.” Franks v. State, 373 A.2d 578, 580 (Del.
1977), rev’d, 438 U.S. 154, 98 S. Ct. 2674. The United States
Supreme Court resolved the conflict in favor of permitting
impeachment, holding that where a defendant can establish
that the warrant affiant made intentional or reckless material
misstatements to the issuing judge, the results of the search
must be suppressed if the remainder of the warrant would
No. 14-1284 17
have been insufficient to establish probable cause. Id. at 155-56,
98 S. Ct. at 2676.
The Franks Court rested its holding on the Warrant Clause
of the Fourth Amendment:
In deciding today that, in certain circumstances,
a challenge to a warrant’s veracity must be
permitted, we derive our ground from language
of the Warrant Clause itself, which surely takes
the affiant’s good faith as its premise: “[N]o
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation … .” Judge
Frankel … put the matter simply: “[W]hen the
Fourth Amendment demands a factual showing
sufficient to comprise ‘probable cause,’ the
obvious assumption is that there will be a truth-
ful showing” (emphasis in original). This does
not mean “truthful” in the sense that every fact
recited in the warrant affidavit is necessarily
correct, for probable cause may be founded upon
hearsay and upon information received from
informants, as well as upon information within
the affiant’s own knowledge that sometimes
must be garnered hastily. But surely it is to be
“truthful” in the sense that the information put
forth is believed or appropriately accepted by the
affiant as true. It is established law that a warrant
affidavit must set forth particular facts and
circumstances underlying the existence of proba-
ble cause, so as to allow the magistrate to make
an independent evaluation of the matter. …
Because it is the magistrate who must determine
18 No. 14-1284
independently whether there is probable cause,
it would be an unthinkable imposition upon his
authority if a warrant affidavit, revealed after the
fact to contain a deliberately or reckless[ly] false
statement, were to stand beyond impeachment.
438 U.S. at 164-65, 98 S. Ct. at 2681 (citations omitted). Later in
its opinion, in the course of addressing Delaware’s objections
to any after-the-fact inquiry into the veracity of the warrant
affidavit, the Court explained further why it rejected a rule that
would foreclose any attempt to challenge the accuracy of the
affidavit:
[A] flat ban on impeachment of veracity could
denude the probable-cause requirement of all
real meaning. The requirement that a warrant
not issue “but upon probable cause, supported
by Oath or affirmation,” would be reduced to a
nullity if a police officer was able to use deliber-
ately falsified allegations to demonstrate proba-
ble cause, and, having misled the magistrate,
then was able to remain confident that the ploy
was worthwhile. It is this specter of intentional
falsification that, we think, has evoked such
widespread opposition to the flat nonimpeach-
ment rule from the commentators, from the
American Law Institute in its Model Code of Pre-
Arraignment Procedure, from the federal courts
of appeals, and from state courts.
438 U.S. at 168, 98 S. Ct. at 2682-83 (citations & footnote
omitted).
2.
No. 14-1284 19
Although Franks allows a defendant to challenge the
truthfulness of a warrant affidavit, he must surmount a
significant threshold before the court is obliged to conduct an
evidentiary hearing and to decide whether the search warrant
was the product of an intentionally or recklessly false or
misleading affidavit. In his Franks motion, the defendant must
make a “substantial preliminary showing” that he is entitled to
relief. Id. at 155, 98 S. Ct. at 2676. This requires him to do much
more than point out inaccuracies in the warrant affidavit.
There is, of course, a presumption of validity
with respect to the affidavit supporting the
search warrant. To mandate an evidentiary
hearing, the challenger’s attack must be more
than conclusory and must be supported by more
than a mere desire to cross-examine. There must
be allegations of a deliberate falsehood or of
reckless disregard for the truth, and those allega-
tions must be accompanied by an offer of proof.
They should point out specifically the portion of
the warrant affidavit that is claimed to be false;
and they should be accompanied by a statement
of supporting reasons. Affidavits or sworn or
otherwise reliable statements of witnesses should
be furnished, or their absence satisfactorily
explained. Allegations of negligence or innocent
mistake are insufficient. The deliberate falsity or
reckless disregard whose impeachment is per-
mitted today is only that of the affiant, not of any
nongovernmental informant. Finally, if these
requirements are met, and if, when material that
is the subject of the alleged falsity or reckless
disregard is set to one side, there remains suffi-
20 No. 14-1284
cient content in the warrant affidavit to support
a finding of probable cause, no hearing is re-
quired. On the other hand, if the remaining
content is insufficient, the defendant is entitled,
under the Fourth and Fourteenth Amendments,
to his hearing. Whether he will prevail at that
hearing is, of course, another issue.
Id. at 171-72, 98 S. Ct. at 2684-85 (footnote omitted).
The “substantial preliminary showing” that Franks requires
of the defendant is thus an onerous one. See, e.g., McMurtrey,
704 F.3d at 509; United States v. Johnson, 580 F.3d 666, 670 (7th
Cir. 2009); United States v. Swanson, 210 F.3d 788, 790 (7th Cir.
2000). Consequently, although Franks motions are standard
fare in criminal cases, evidentiary hearings are granted
infrequently. Nonetheless, hearings do occur with a modicum
of regularity. See, e.g., United States v. Spears, 673 F.3d 598, 602-3
(7th Cir.), cert. denied, 133 S. Ct. 232 (2012); United States v.
Clark, 668 F.3d 934, 938-39 (7th Cir. 2012); United States v.
Wilburn, 581 F.3d 618, 621-22 (7th Cir. 2009); United States v.
Merritt, 361 F.3d 1005, 1010-11 (7th Cir. 2004), cert. granted &
judgment vacated on other grounds, 543 U.S. 1099, 125 S. Ct. 1024(2005); United States v. Whitley, 249 F.3d 614, 617-19 (7th Cir.
2001). Cases in which a motion to suppress is ultimately
granted after such a hearing are even more uncommon, but
they too occur. See, e.g., United States v. Brown, 631 F.3d 638,
649-50 (3d Cir. 2011) (affirming suppression); United States v.
Foote, 413 F.3d 1240, 1244 (10th Cir. 2005) (noting but not ruling
on partial suppression ordered by district court); United States
v. Wells, 223 F.3d 835, 839-40 (8th Cir. 2000) (affirming suppres-
sion); United States v. Hall, 113 F.3d 157, 159-61 (9th Cir. 1997)
(affirming suppression).
No. 14-1284 21
Despite the high bar to relief that Franks imposes, it has
proven to be more than a lofty statement of principle that is
often recited but in practice never results in relief. My experi-
ence as both a trial and appellate judge has convinced me that
it is a vital part of the criminal process that subjects warrant
affidavits to useful adversarial testing, and occasionally, if not
often, results in the suppression of evidence seized as a result
of the false or misleading warrant application, as Franks itself
envisioned. 438 U.S. at 156, 98 S. Ct. at 2676. (Whether the same
or a different form of relief would be appropriate in a case
involving alleged terrorism is an issue that must be reserved
for a case that presents it: To the best of my knowledge, no
defendant has yet succeeded in getting to a Franks hearing in
a criminal prosecution resulting from FISA surveillance.) And,
no doubt, the prospect of a Franks hearing and the possibility
of suppression serves as a meaningful deterrent to an overzeal-
ous law enforcement official who might be tempted to present
a misleading account of the facts to the judge from whom he
seeks a warrant.
3.
This court’s opinion in United States v. Ning Wen, 477 F.3d
896, 897-98 (7th Cir. 2007), makes clear that a FISA order
qualifies as a warrant for purposes of the Fourth Amendment
even if it authorizes only the interception of electronic commu-
nications as opposed to a physical search; and it has been
widely assumed, if not affirmatively stated, in the decisions of
other courts that Franks applies to FISA applications. See, e.g.,
United States v. El-Mezain, 664 F.3d 467, 570 (5th Cir. 2011), cert.
denied, 133 S. Ct. 525 (2012); United States v. Abu-Jihaad, 630 F.3d
102, 130-31 (2d Cir. 2010); United States v. Damrah, 412 F.3d 618,
624-25 (6th Cir. 2005); United States v. Duggan, 743 F.2d 59, 77
22 No. 14-1284
n.6 (2d Cir. 1984), superseded on other grounds by statute as
recognized in Abu-Jihaad, 630 F.3d at 119-20; United States v.
Hussein, 2014 WL 1682845, at *2 (S.D. Cal Apr. 29, 2014); United
States v. Huang, ___ F. Supp. 2d ___, 2014 WL 1599463, at *8 (D.
N.M. Apr. 22, 2014); United States v. Omar, 2012 WL 2357734, at
*3 & n.1 (D. Minn. June 20, 2012); United States v. Mehanna, 2011
WL 3652524, at *2 (D. Mass. Aug. 19, 2011); United States v.
Kashmiri, 2010 WL 4705159, at *5-*6 (N.D. Ill. Nov. 10, 2010);
United States v. Gowadia, 2009 WL 1649714, at *3 (D. Hi. June 8,
2009); United States v. Mubayyid, 521 F. Supp. 2d 125, 130-31 (D.
Mass. 2007); United States v. Hassoun, 2007 WL 1068127, at *3-*4
(S.D. Fla. Apr. 4, 2007). In this case, the government likewise
assumes that Franks applies to the FISA context; it certainly
does not argue to the contrary. See R. 73 at 43-47 (contending
to district court that Daoud had not made a sufficient showing
to trigger a Franks hearing, but making no argument that
Franks does not apply in the FISA context).
4.
However, notwithstanding the presumed applicability of
Franks to the FISA framework, defendants in FISA cases face an
obvious and virtually insurmountable obstacle in the require-
ment that they make a substantial preliminary showing of
deliberate or reckless material falsehoods or omissions in the
FISA application without having access to the application itself.
Franks, as I have discussed, requires such a showing before the
court is obliged to convene an evidentiary hearing. And the
necessary first step in that showing is to identify specific
portions of the warrant affidavit that the defendant believes
are false or misleading. Franks, 438 U.S. at 171, 98 S. Ct. at 2684.
In the typical criminal case, the defendant has access to the
warrant affidavit. Coupled with his own knowledge of what he
No. 14-1284 23
or his accomplices said and did, the defendant can at least
show that the government’s affiant misstated or omitted facts
pertinent to the probable cause determination—although he is,
of course, required to go further and give the court reason to
believe that the misstatement or omission was deliberate or
reckless, see id. But without access to the FISA application, the
defendant has no idea how the government represented the
facts to the Foreign Intelligence Surveillance Court (“FISC”), let
alone whether and how the government may have misstated
the facts in some way. Practically speaking, the defense can
only make a blind suggestion that there is a possibility that the
FISA application may contain false statements or omissions
and that a Franks hearing may be necessary, and cite this
possibility as a reason for ordering disclosure. That is essen-
tially what Daoud did here.
Some courts have acknowledged the inherent difficulty that
defendants face without access to the FISA application; but
those courts have insisted nonetheless that defendants must
somehow make the same preliminary showing—that the
government presented a distorted set of facts to the judge
issuing the warrant—that Franks would require in the usual
criminal case. The court’s remarks in Kashmiri represent a
thoughtful example:
The Court recognizes the frustrating position
from which Defendant must argue for a Franks
hearing. Franks provides an important Fourth
Amendment safeguard to scrutinize the underly-
ing basis for probable cause in a search warrant.
The requirements to obtain a hearing, however,
are seemingly unattainable by Defendant. He
does not have access to any of the materials
24 No. 14-1284
concerning the FISA application or surveillance;
all he has is notice that the government plans to
use this evidence against him.
Nevertheless, to challenge the veracity of the
FISA application, Defendant must offer substan-
tial proof that the FISC relied on an intentional
or reckless misrepresentation by the government
to grant the FISA order. The quest to satisfy the
Franks requirements might feel like a wild-goose
chase, as Defendant lacks access to the materials
that would provide this proof. This perceived
practical impossibility to obtain a hearing, how-
ever, does not constitute a legal impossibility. If
Defendant obtains substantial proof that the
FISC relied upon an intentional or recklessly
false statement to approve the FISA order, he
could obtain a hearing. …
2010 WL 4705159, at *6. See also United States v. Alwan, 2012 WL
399154, at *9-*10 (W.D. Ky. Feb. 7, 2012) (quoting Kashmiri);
Mehanna, 2011 WL 3652524, at *2 (“The Court recognizes the
defendant's difficulty in making such a preliminary showing
where the defendant has no access to the confidential
FISA-related documents here.”); United States v. Abu-Jihaad, 531
F. Supp. 2d 299, 311 (D. Conn. 2008) (“Since defense counsel
has not had access to the Government's submissions
they—quite understandably—can only speculate about their
contents.”), j. aff’d, 630 F.3d 102; Mubayyid, 521 F. Supp. 2d at131 (see quoted passage below); Hassoun, 2007 WL 1068127, at
*4 (“Defendants admit that their allegations are purely specula-
tive, in that they have not been given the opportunity to review
the classified applications.”).
No. 14-1284 25
I note that in Mubayyid, the court expressly rejected this
difficulty as a ground sufficient to warrant disclosure of the
FISA application to the defense:
The Court obviously recognizes the difficulty of
defendants' position: because they do not know
what statements were made by the affidavit in
the FISA applications, they cannot make any
kind of a showing that those statements were
false. See Belfield, 692 F.2d at 148. Nonetheless, it
does not follow that defendants are entitled
automatically to disclosure of the statements.
The balance struck under FISA—which is in-
tended to permit the gathering of foreign intelli-
gence under conditions of strict secrecy, while
providing for judicial review and other appropri-
ate safeguards—would be substantially under-
mined if criminal defendants were granted a
right of disclosure simply to ensure against the
possibility of a Franks violation.
521 F. Supp. 2d at 131 (citing United States v. Belfield, 692 F.2d
141, 148 (D.C. Cir. 1982) (expressing sympathy for similar
difficulty defendant would have in attempting to show case
was so complex that disclosure of FISA materials is war-
ranted)). The Mubayyid court went on to note that Congress
was aware of the difficulties posed to the defense by a pre-
sumption against disclosure of FISA materials, but nonetheless
“‘chose to resolve them through means other than mandatory
disclosure.’” Id. (quoting Belfield, 692 F.2d at 148).
One tactic that some defendants have attempted in order to
trigger either a Franks hearing, or disclosure of the FISA
materials so that the defense can make a proper preliminary
26 No. 14-1284
showing under Franks, is to cite reports which take note of
various misrepresentations that have been made to the FISC
over the years and which have been confessed by the govern-
ment after the fact. These disclosures, defendants reason,
demonstrate that the possibility of a material misrepresentation
or omission in the FISA application is more than a theoretical
one. Most relevant in this regard is In re All Matters Submitted
to the Foreign Intelligence Surveillance Court, 218 F. Supp.2d 611,
620 (Foreign Int. Surv. Ct. 2002), abrogated by In re Sealed Case,
310 F.3d 717 (For. Intel. Surv. Ct. Rev. 2002), in which the court
recounted the government’s revelation that 75 prior FISA
applications related to major terrorist attacks directed against
the United States contained misstatements and omissions of
material facts (concerning such topics as whether the target of
FISA surveillance was under criminal investigation, whether
overlapping criminal and intelligence investigations were
being appropriately compartmentalized in terms of
information-sharing, and the prior relationship between the
FBI and the FISA target). That disclosure led the FISC to bar
one FBI agent from ever appearing before the court again as a
FISA affiant. 218 F. Supp. 2d at 621. Daoud has relied on this
opinion and others to demonstrate why disclosure of the FISA
application to the defense is warranted for purposes of
assessing the truthfulness of the application and, if discrepan-
cies are found, to make the substantial preliminary showing
that Franks requires. See R. 52 at 24-26.
Pointing to prior instances of falsehoods may be useful as
a means of demonstrating a need for a Franks procedure or an
equivalent in the FISA context, but it is of little use in satisfying
the Franks standard, as it sheds no light on the truth or falsity
of the particular FISA application under review. See, e.g.,
Hassoun, 2007 WL 1068127, at *4. Nor does it substantiate the
No. 14-1284 27
necessity of disclosure of a FISA application in a particular
case, unless there is reason to think that the FISA affiant is one
who has been found to have made misleading applications
before. See id. (noting the government’s representation that the
affiant was not the one who had been barred from appearing
before the FISC).
A potential alternative was addressed by both the govern-
ment and the members of the court at the oral arguments in
this case. Although a defendant may not know what specific
allegations were made in the FISA application, he necessarily
does know what he has done and said. A savvy defense
attorney might be able to surmise from the materials produced
in discovery roughly when FISA surveillance began and what
general types of information the government likely relied on in
its warrant application. Counsel could in turn ascertain from
his client which of his actions and statements—and those of his
accomplices—the government might have known about and
relied on to establish probable cause before the FISC. In theory,
the defense could present that information to the court and the
court could compare the defense information with the repre-
sentations in the FISA application and see if there are any
important differences that might implicate the FISC’s probable
cause determination. Any such discrepancies might be grounds
for disclosure of the FISA application to the defense so that it
might attempt to make a proper Franks showing.
However, there are multiple problems posed by this
scenario. To begin, rather than being able to rebut specific
representations in the application, the defendant would have
28 No. 14-1284
to supply the court with a narrative of his own conduct.1 In
doing so, the defendant would run the risk that he might
disclose inculpatory facts about himself or an accomplice of
which the government was not previously aware.2
Second, it will often be difficult for a defendant to recall and
reconstruct all of the many communications and statements
that the FISA application may have relied on to establish
probable cause. Where it seems obvious that a discrete and
recent event triggered a FISA application (something like the
2013 bombing at the Boston marathon, for example), recollect-
ing and documenting a defendant’s acts and statements before
and after that event may present a straightforward task. But in
the modern era, people have at their disposal an almost
unlimited means of communicating (phone, text, email, and all
manner of social media), and young people like Daoud are
often parties to many dozens of such communications per day.
See, e.g., Amanda Lenhart, Pew Research Center, Teens,
Smartphones & Texting (Mar. 19, 2012) (“The median number of
texts … sent on a typical day by teens [was] 60 in 2011.”),
available at http://pewinternet.org/Reports/2012/Teens-and-
smartphones.aspx (last visited June 12, 2014). Recalling
everything that one might or might not have said in the vast
universe of his electronic chatter—and likewise what his
accomplices have said—would pose a daunting task for
anyone not gifted with total recall.
1
I am assuming that, as with a defendant’s testimony in support of a
motion to suppress, the defendant’s narrative could not be introduced
against him at trial on the issue of guilt over his objection. See Simmons v.
United States, 390 U.S. 377, 394, 88 S. Ct. 967, 976 (1968).
2
Permitting the defendant to submit his narrative ex parte for review by
the court in camera presumably would resolve that problem.
No. 14-1284 29
Third, a narrative-based approach allows for manipulation
of the court, by giving the defense an incentive to present the
most exculpatory (and incomplete) version of his actions and
statements in order to maximize the chances that the court will
order disclosure of the FISA application. If the defendant’s
threshold burden is to convince the court simply that the
application may not have accurately described the defendant’s
actions, then his best shot at carrying that burden is to present
the most self-serving version of events that he can without
outright lying to the court. Balance and candor would work
against him, because the more inculpatory things he acknowl-
edges, the more likely it is that the court will conclude there is
no material factual dispute justifying disclosure of the FISA
application—that the gist of the FISA application is consistent
with the gist of the defendant’s factual narrative.
Setting that point aside, let us suppose that a defendant in
good faith presents a counter-narrative of the facts that
convinces the court that disclosure of the FISA application is
appropriate so that defense counsel may further pursue a
Franks claim. It should be noted that producing the application
to security-cleared defense counsel would pose the same risk
of inadvertent disclosure to the defendant, and possible injury
to national security, that the government has cited in challeng-
ing the disclosure that was ordered in this case.
More to the point, putting a copy of the FISA application in
the defense counsel’s hand would not necessarily enable a
truly adversarial and robust Franks process. The defendant’s
attorney would not be authorized to disclose any classified
material to his or her client; so the attorney would not be able
to examine each material statement in the FISA application and
discuss with the client whether it is accurate from the client’s
30 No. 14-1284
perspective. Even by asking the client generic, non-leading
questions, counsel might inadvertently tip off the client to the
classified evidence or sources the government may have relied
on in the FISA application. And yet it would be difficult, if not
impossible, for counsel to test the accuracy of the FISA applica-
tion without disclosing the classified material to the client. In
the end, the defense might be just as hamstrung in pursuing a
Franks motion with disclosure of the FISA application to
defense counsel as it would be without such disclosure.
Finally, even if it were possible for a defendant to make a
preliminary Franks showing despite these obstacles, in cases
involving sensitive information (which is most FISA cases, I
would think), one wonders whether there could realistically be
the sort of full-fledged, adversarial Franks hearing that takes
place in a more typical criminal case, cf. United States v. Whitley,
supra, 249 F.3d at 617-19 (recounting the extensive testimony
bearing on defendant’s Franks motion), even if the hearing
were conducted in secrecy. Such a hearing would potentially
expose the government’s sources and methods of investigation
to scrutiny that might jeopardize national security.
5.
Without access to the FISA application, it is doubtful that a
defendant could ever make a preliminary showing sufficient to
trigger a Franks hearing. The court in Kashmiri said that “[t]his
perceived practical impossibility to obtain a hearing … does
not constitute a legal impossibility,” 2010 WL 4705159, at *6,
but it is not clear to me why this is so. It seems to me that only
if the government itself somehow disclosed to the court or to
the defense a material misrepresentation or omission in the
FISA application, the court itself noticed a patent inconsistency
in the application and pursued it, or a court reviewing many
No. 14-1284 31
such applications noticed a suspicious pattern, could that
showing be made. Those instances will be rare indeed, and
they will occur wholly independently of the adversarial
process that Franks envisions.
What courts sometimes say is that they have conducted
their own careful review of the FISA materials and discovered
no material misrepresentations or omissions in the FISA
application. Thus, the Kashmiri court, after noting the difficulty
the defendant would have in making the threshold showing
that Franks requires, noted that it had “already undertaken a
process akin to a Franks hearing through its ex parte, in camera
review of the FISA materials” and detected no basis for further
inquiry under Franks. 2010 WL 4705159, at *6 (citing 50 U.S.C.
§ 1806(f)). See also Gowadia, 2009 WL 1649714, at *3; Abu-Jihaad,
531 F. Supp. 2d at 311-12.
Yet, although a court may be able to discover inconsisten-
cies in the FISA materials, its ability to discover false state-
ments and omissions is necessarily limited, as it has only the
government’s version of the facts. Franks itself recognizes that
an ex parte inquiry into the veracity of the warrant affidavit is
necessarily “less vigorous” than an adversarial hearing, as the
judge “has no acquaintance with the information that may
contradict the good faith and reasonable basis of the affiant’s
allegations.” 438 U.S. at 169, 98 S. Ct. at 2683. The defendant is
in the best position to know whether the government’s version
of events is inaccurate, as the defendant knows what he said
and did, when, where, and to whom, and the defendant will
often know the same about what his accomplices said and did.
If disclosure of the FISA application is to be the exception
rather than the rule, then we must look for a means of ensuring
that FISA affiants act in good faith and that the Fourth Amend-
32 No. 14-1284
ment’s probable-cause requirement is not “denude[d] … of all
real meaning.” Franks, 438 U.S. at 168, 98 S. Ct. at 2682.
6.
I indicated earlier that I view it as mistaken to believe that
a judge will be able on his or her own to ferret out any poten-
tial misrepresentations or omissions in the FISA application,
given that the judge lacks a defendant’s knowledge as to the
facts underlying the application and has only the government’s
version of the facts as a reference point. There may be a subset
of FISA cases, however, in which a judge could make a
meaningful effort to confirm the accuracy of the application
and thus serve the same interest in ensuring truth and candor
in the warrant process that a Franks motion serves. These
would be cases in which the FISA application is based in part
on a defendant’s documented statements. If, for example, the
defendant has communicated his terrorist sympathies or plans
in an email or a text to someone who turns a copy over to the
government, or has posted such thoughts online, as the
criminal complaint in this case notes that Daoud did (see R. 1 at
5 ¶ 7), and those statements are cited in the FISA application,
the court could ask the government to produce complete
copies of those statements for review in camera. Having those
statements in hand would enable the court to verify that they
were fairly recounted in the FISA application—both in the
sense that the defendant was not misquoted and in the sense
that the government did not omit portions of a statement that
were critical for context. Taking that step would permit the
court to conduct something akin to a Franks inquiry albeit
without defense input—perhaps something very much like the
district court in Kashmiri referenced. 2010 WL 4705159, at *6.
No. 14-1284 33
Even such a modest step may strike some as a departure
from the judge’s usual detached role, and indeed it does
require a judge to act as something more than a passive
umpire. But it strikes me as a reasonable measure that respects
both the national security interest as well as the practical
obstacles that the defense faces in pursuing a Franks motion
without access to those materials. As Judge Posner has pointed
out today, there are any number of proceedings which are not
wholly adversarial and which call on the court to exercise its
judgment independently of the arguments presented to it. Ante
at 6-7. To my mind, a Franks motion filed in a case involving
FISA surveillance presents just such a situation, given that the
defense cannot litigate that motion in the usual way. The court,
which has unrestricted access to the FISA application, can
make limited and reasonable efforts to do what the defense
cannot: determine if the face of the FISA application is consis-
tent with whatever documented statements of the defendant
(or his accomplices) that the government might have in its
possession.
There may be other steps that the judge can take to try and
confirm the accuracy of the FISA application, but my essential
point is this: courts cannot continue to assume that defendants
are capable of carrying the burden that Franks imposes when
they lack access to the warrant application that is the starting
point for any Franks inquiry. Courts must do what they can to
compensate for a defendant’s ignorance as to what the FISA
application contains. Otherwise, Franks will persist in name
only in the FISA setting.
Beyond this, it remains for Congress and the Executive
Branch to consider reforms that might address some of the
concerns I have raised here. If, as a pragmatic matter, Franks
34 No. 14-1284
cannot function as a check on potential abuses of the warrant
process in FISA cases, then there may be other institutional
means of addressing the Fourth Amendment and due process
rights that Franks is meant to protect in the standard criminal
setting. Privacy concerns, for example, have resulted in
multiple proposals before Congress calling for the creation of
a “Special Advocate,” with appropriate security clearance,
whose job it would be to serve as a privacy advocate and to
oppose the government in certain FISC proceedings.3 The
practical obstacles to impeaching the veracity of FISA applica-
tions warrant exploration of comparable measures that respect
the spirit, if not the letter, of Franks.
7.
Imagining ways to make Franks workable in a classified
setting is difficult, as the foregoing discussion demonstrates
and as the government’s counsel candidly acknowledged at
oral argument. My purpose in engaging in this discussion has
been to acknowledge a problem that thus far has not been
addressed as deeply as it should be by the judiciary. Thirty-six
years after the enactment of FISA, it is well past time to
3
See, e.g., Steve Vladeck, Judge Bates and a FISA “Special Advocate,”
LAWFARE (Feb. 4, 2014), http://www.lawfareblog.com/2014/02/judge-bates-
and-a-fisa-special-advocate/ (last visited June 12, 2014); The Constitution
Project, The Case for a FISA “Special Advocate,” (May 29, 2014), available at
http://www.constitutionproject.org/wp-content/uploads/2014/05/The-Case-
for-a-FISA-Special-Advocate_FINAL.pdf. (last visited June 12, 2014). The
continuity of such a position might allow the Special Advocate to recognize
patterns of suspect behavior that would otherwise go unnoticed, and bring
them to the court’s attention before they reach the extent noted in In re All
Matters Submitted to the Foreign Intelligence Surveillance Court, supra, 218
F.Supp.2d at 620-21, which came to light only because the government itself
informed the court after the fact.
No. 14-1284 35
recognize that it is virtually impossible for a FISA defendant to
make the showing that Franks requires in order to convene an
evidentiary hearing, and that a court cannot conduct more than
a limited Franks review on its own. Possibly there is no realistic
means of reconciling Franks with the FISA process. But all three
branches of government have an obligation to explore that
question thoroughly before we rest with that conclusion.