14-1284 | Omnilex

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Filed with Classified
Information Security Officer

CISO
Nothis

Date
7/14/14

REDACTED / CLEARED FOR PUBLIC RELEASE

# In the United States Court of Appeals Hur the Seventh Circuit

No. 14-1284
UNITED STATES OF AMERICA,

v.
Plaintiff-Appellant,

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

SUPPLEMENTAL CLASSIFIED OPINION DECIDED JULY 14, 2014

Before POSNER, KANNE, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. In our June 16 opinion reversing
the district judge's order to disclose classified materials to
defense counsel, we also held that the government's investi-
gation of the defendant did not violate the Foreign Intelli-
gence Surveillance Act (FISA), 50 U.S.C. §§ 1801 et seq. We
promised to "issue a classified 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 appropriate." This is that opinion.

The FBI's investigation of the defendant was triggered

the FBI's Chicago office immediately began investigating the
defendant. Yahoo responded to a grand jury subpoena
☒
confirming that the account
belonged
to a "Mr. Adel Daoud."

A few days later, an "online covert employee" of the FBI
exchanged emails with
and thereby
obtained his IP address; on
Comcast, responding to
a grand-jury subpoena, confirmed that the IP address was
associated with a residential account at 2317 Westwood
Drive, Hillside, Illinois-the defendant's address, according
to the Illinois Secretary of State Division of Motor Vehicles
database.

The defendant argues that the evidence against him was
"obtained or derived from electronic surveillance" that "was
not lawfully authorized or conducted," 50 U.S.C. § 1806(g),
and should therefore be suppressed. Lacking access to the
warrant applications, he presents several conjectures about
the warrants' possible illegality. We can restrict our analysis
to the first FISA application,

The FISA applications are free of any procedural defects.
The applications were "made by a federal officer and ap-
proved by the Attorney General," 50 U.S.C. § 1805(a)(1),
each of them listing the name and background of the special
agent submitting the application and each of them contain-
ing the signatures of the FBI Director or Deputy Director and
the Assistant Attorney General for National Security. The
government also proposed and followed the required "min-
imization procedures" to ensure that no more information
than necessary was collected from the target of the electronic
surveillance and that the information once obtained would
not be shared with anyone lacking a "need to know" it. 50
U.S.C. § 1805(a)(3); see also § 1801(h). The Foreign Intelli-
gence Surveillance Court has already approved standing
minimization procedures that are incorporated into each
surveillance application.

And finally each of the appli-
cations "contains all statements and certifications required
by section 1804." § 1805(a)(4); see also § 1804(a)(1)-(9).

Like any search warrant, a FISA application must be
supported by probable cause. But FISA doesn't require the
government to show probable cause to believe that the target
of the proposed surveillance may be engaged in criminal ac-
tivity; rather, it requires only probable cause to believe that
the target is an "agent of a foreign power." 50 U.S.C.

§§ 1801(b), 1805(a)(2). The term is somewhat misleading; an
"agent of a foreign power" needn't be a KGB spy. Rather,
anyone-even if a United States citizen-who "knowingly
engages in ... international terrorism, or in activities that are
in preparation therefor, for or on behalf of" a "group en-
gaged in international terrorism" qualifies. 50 U.S.C.
§§ 1801(a)(4), (b)(2)(C); e.g., United States v. Aldawsari, 740
F.3d 1015, 1018-19 (5th Cir. 2014). And anyone who know-
ingly aids, abets, or conspires with an agent in furtherance of
such activities is also deemed an agent of a foreign power. 50
U.S.C. § 1801(b)(2)(E).

The FISA applications contain ample evidence to support
a finding of probable cause.

It would have been irresponsible
of the FBI not to have launched its investigation of the de-
fendant

The defendant suggests that the applications may contain
intentional or reckless material falsehoods, see Franks v. Del-
aware, 438 U.S. 154 (1978), in violation of the Fourth
Amendment. Franks however made clear that "the deliberate
falsity or reckless disregard [for the truth] whose impeach-
ment is permitted today is only that of the affiant, not of any

nongovernmental informant." Id. at 171. So even if the de-
fendant is right to say that the
intelligence that trig-
gered the FBI's investigation may be based on "multiple-
level hearsay, rumor, surmise, and speculation," all that mat-
ters is whether it was unreasonable-in fact reckless-for the
affiant to rely on it. It wasn't.

Next, the defendant suggests that the primary purpose of
the surveillance may have been to obtain evidence of domes-
tic criminal activity, which is not authorized by FISA. See
United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982). The

disposes of this possible objec-
tion.

Finally the defendant suggests that in the spring of 2012
he had been conducting online research for a term paper on
Osama bin Laden, and that this online research-which is
protected by the First Amendment-may have triggered the
government's investigation. If that's the case, then the elec-
tronic surveillance wouldn't have been authorized, because
"no United States person [such as the defendant] may be

considered ... an agent of a foreign power solely upon the
basis of activities protected by the first amendment." 50
U.S.C. § 1805(a)(2)(A). (Relatedly, the defendant suggests
that the surveillance may be illegal for the additional reason
that it would have taken place before the defendant had
turned 18. This is a non sequitur; there's no age restriction in
FISA.

The defendant suggests that at least some of the evidence
against him may have been obtained as a result of surveil-
lance conducted pursuant to the FISA Amendments Act of
2008 (FAA), Pub. L. 110-261, 122 Stat. 2436 (2008), and if so
he's entitled to be notified of that fact. Unlike a traditional
FISA application for electronic surveillance, an application
under the FAA "does not require the Government to
demonstrate probable cause that the target of the electronic
surveillance is a foreign power or agent of a foreign power,"
as long as the surveillance targets "non-U.S. persons located
abroad." Clapper v. Amnesty International USA, 133 S. Ct.
1138, 1144 (2013). The FAA also "eliminated the requirement
that the Government describe to the court each specific tar-
get and identify each facility at which its surveillance would
be directed, thus permitting surveillance on a programmatic,
not necessarily individualized, basis." Id. at 1156 (dissenting

opinion); see also 50 U.S.C. § 1881a(g). In short, it's easier for
the government to conduct lawful electronic surveillance
under the FAA than under the traditional FISA provisions.

Since as we said the government has met FISA's tougher
standard,

The defendant's challenge relies primarily on a Decem-
ber 27, 2012 Senate floor speech by Senator Feinstein, who
said: "There have been 16 individuals arrest[ed] just this
year alone. Let me quickly just review what these plots were.
And some of them come right from this program [meaning,
the FAA]. The counter-terrorism come[s]-and the infor-
mation came right from this program. And again, if mem-
bers want to see that, they can go and look in a classified
manner. ... Fourth, a plot to bomb a downtown Chicago bar
" www.c-span.org/video/?c4467868 (emphasis added)
(visited July 11, 2014).

The referenced "plot" is obviously the defendant's, and
because the Senator used the examples to support the reau-
thorization of the FAA, the defendant not unreasonably in-
terpreted her remarks to mean that the FAA had been used

in his case. But an equally reasonable interpretation of the
Senator's remarks is that she was merely saying that the de-
fendant was one of the 16 individuals who had been arrested
in 2012, some of whom had been arrested on the basis of such
information. The Senate's Legal Counsel confirmed in a let-
ter to defense counsel that "Senator Feinstein did not state,
and did not mean to state, that FAA surveillance was used in
any or all of the nine cases she enumerated, including [the
defendant's] case, in which terrorist plots had been stopped.
... Rather, her purpose in reviewing several recent terrorism
arrests was to refute the 'view by some that this country no
longer needs to fear attack.""

We asked the government after the classified oral argu-
ment to tell us whether "any FAA information play[ed] any
role, no matter how minimal, in the investigation of [the de-
fendant] or the decision to pursue an investigation of [the
defendant],

We close with a word on disclosure of the FISA material
to defense counsel, which the Attorney General swore in an
affidavit would "harm the national security of the United

States." As we pointed out in our June 16 opinion, counsel's
obligation to zealously represent the defendant comes with a
real risk of inadvertent or mistaken disclosure; the risk is
particularly worrisome in a case involving sensitive infor-
mation

. The FISA applications in this case also revealed

the se-
crecy of which is unquestionably important to maintain.

To summarize, the FISA applications in this case are
supported by probable cause to believe that the defendant
was an "agent of a foreign power," as FISA defines that
term, and the information collected from the resulting sur-
veillance should therefore not be suppressed.

Filed with Classified Information Security Officer CISO Nothis Date 7/14/14 REDACTED… v. Plaintiff-Appellant, ADEL DAOUD

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