REENA RAGGI, Circuit Judge:
United States citizen Hassan Abu-Jihaad, whose birth name is Paul Raphael Hall, appeals from a judgment of conviction entered in the United States District Court for the District of Connecticut (Mark R. Kravitz, Judge) on April 3, 2009, after a jury found him guilty of having communicated national defense information, specifically, the anticipated movements of a United States Navy battlegroup being deployed to the Persian Gulf, to unauthorized persons in violation of 18 U.S.C. § 793(d). Presently serving a ten-year prison term for that crime, Abu-Jihaad contends that (1) inculpatory evidence obtained pursuant to the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et seq., should have been suppressed because (a) that statute is unconstitutional and (b) in any event, was not complied with in this case; (2) erroneous evidentiary rulings deprived him of a fair trial; (3) the trial evidence was insufficient to support conviction; and (4) the district court abused its discretion in entering protective orders pursuant to the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3, §§ 1-16.
We identify no merit in any of these arguments and, accordingly, we affirm the judgment of conviction.
In 1997, defendant Paul Raphael Hall changed his name to "Hassan Abu-Jihaad," the surname of which translates to "Father of Jihad."
The first link in the chain of circumstantial evidence proving Abu-Jihaad's guilt was discovered in London where, on December 2, 2003, British authorities conducted searches of various locations associated with Babar Ahmad, an information technologist at London's Imperial College with ties to Azzam Publications.
London-based Azzam Publications ("Azzam") was an organization that in 2001 maintained a number of websites that glorified martyrdom in the name of jihad and the violent exploits of mujahideen around the world. See United States v. Abu-Jihaad, 600 F.Supp.2d 362, 366 (D.Conn. 2009) (reviewing trial evidence in denying post-verdict motions for judgment of acquittal or new trial).
In the course of searching Babar Ahmad's bedroom on December 2, British authorities discovered a computer disk containing materials related to Azzam.
Gov't Ex. 1.
Immediately beneath this text is a diagram showing a two-column formation in which identified ships in the battlegroup, including the aircraft carrier U.S.S. Constellation
Id. With respect to the Amphibious Readiness Group, the document reveals that three ships were expected to deploy "out of homeport San Diego, March 14 2001" with a port visit in South-East Asia, specifically, in Thailand and Singapore, before heading to the Middle East. Id. Among the ships described is the following:
Id.
The document concludes by identifying the battlegroup's vulnerabilities, highlighting its operation schedule in the Persian Gulf, and then exhorting the recipient to destroy the communication:
Id.
Based on forensic analysis of the totality of evidence obtained in the ensuing investigation, a federal agent testified at trial that the disk containing the Battlegroup Document appeared to have been created by British citizen Syed Talha Ahsan, an Azzam employee who handled product backlog. See United States v. Abu-Jihaad,
In the course of their larger investigation, authorities would recover no other electronic data from any source revealing trace information pertaining to transmittal of the Battlegroup Document, research into United States naval forces generally or the Constellation battlegroup in particular, or any evidence relating to "Jon Greene."
To prove Abu-Jihaad's transmittal of the Battlegroup Document (or the information contained therein) to persons at Azzam, the government relied on evidence showing: (1) defendant's access to the information; (2) his communications with Azzam expressing support for jihad; and (3) his implicit admission in a 2006 recorded statement to having disclosed confidential national security information while in the Navy.
The 2001 deployment of the Constellation battlegroup from San Diego to the Middle East was executed pursuant to a Navy transit plan that went through many drafts beginning on September 29, 2000, and continuing through finalization on February 24, 2001. Each of these iterations highlighted the date April 29, 2001, when, just before midnight, the battlegroup would cross the "change of operation control" ("CHOP") point, i.e., enter into the geographic region controlled by the United States Fifth Fleet. Only the final transit plan referenced a stop in Hawaii by a single vessel, the U.S.S. Benfold, to load ammunition. No version of the transit plan specified the date on which the battlegroup would pass through the Strait of Hormuz.
Each iteration of the transit plan was classified "confidential," which denotes "information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe." Exec. Order No. 12,958, § 1.3(3), 60 Fed.Reg. 19,825 (Apr. 17, 1995); see also United States v. Abu-Jihaad, 600 F.Supp.2d at 377 (noting Navy's operational instructions stating that "precise current or future operational deployment, locations of surface combatant ships, and planned foreign port calls should be classified as `confidential' until after deployment or the visit has been approved by the host government" (some internal quotation marks omitted)). Retired Rear Admiral David C. Hart, Jr.,
Because of these concerns, even among persons assigned to ships in a battlegroup, only those with a "secret" clearance would be given access to a transit plan. Of 300 sailors on board the U.S.S. Benfold, Abu-Jihaad was one of 40 afforded such access by virtue of his status as a signalman who worked alongside quartermasters in the preparation of the ship's navigational charts. He did not, however, have access to the Navy's secure intranet for classified information ("SIPRnet"), which contained information even more sensitive to the national defense than that contained in the transit plan. Significantly, the Battlegroup Document revealed no information for which SIPRnet clearance would have been required, thus limiting the likely source of the information it contained to persons with access only to the transit plan.
Even before United States officials received a copy of the seized Battlegroup Document from their British counterparts, federal agents, acting pursuant to court order, had searched various Azzam-affiliated electronic accounts and discovered therein eleven email exchanges in the time frame of August 21, 2000, to September 3, 2001, between Azzam and a United States sailor serving on the U.S.S. Benfold: the defendant Hassan Abu-Jihaad.
In a July 2001 email sent from Abu-Jihaad's personal email account to qoqaz@ assam.com—the email address to which
United States v. Abu-Jihaad, 600 F.Supp.2d at 372-73 (emphasis and bracketed material added by district court). Abu-Jihaad's Azzam correspondent replied in relevant part:
Id. at 373 (bracketed material added by district court).
In the last of the eleven emails recovered by the government, Abu-Jihaad praised Azzam's coverage of the Taliban in Afghanistan, but opined that the Taliban were too lenient in failing to execute foreign aid workers who converted Muslims to other faiths.
None of Abu-Jihaad's recovered emails referenced the Battlegroup Document or the information contained therein.
In 2006, by which time Abu-Jihaad had been out of the Navy for four years and was living in Phoenix, Arizona, Abu-Jihaad's telephone conversations with his friend Derrick Shareef and a confidential informant were intercepted by a court-authorized wiretap. In excerpts of four calls from late 2006 that were played for the jury, Abu-Jihaad revealed his familiarity with Azzam's websites, see Gov't Ex. 141c, and his high degree of concern with "tapped" telephones, Gov't Ex. 141e. Abu-Jihaad stated an intent to "secur[e] myself" to avoid "hand[ing] myself to a Kafir [infidel]." Gov't Ex. 141f. He cautioned those with whom he spoke not to refer to associates by their real names, see Gov't Ex. 141g, and he frequently employed code, referring to jihad as "J" or "7,"
In a November 11, 2006 conversation, Abu-Jihaad stated that he no longer had current logistics information: "Now `L' for me is like a cold meal. `Cuz it ain't fresh.... If it ain't fresh, it's un-fresh and it, it's un-beneficial to you—just put it that way." Gov't Ex. 141g. He repeated this point in a subsequent conversation with Shareef and the confidential informant the same day:
Gov't Ex. 141h at 1-2. The informant testified that when Abu-Jihaad said he had not "been on that job," the informant understood Abu-Jihaad to mean he was no longer in the Navy. By contrast, the informant understood the "Mexican" to be a reference to Miguel Colon, a man who had left the Marine Corps only recently in September 2006.
Still later on November 11, 2006, Abu-Jihaad spoke with Colon about Shareef's wish to procure military intelligence:
Gov't Ex. 141k at 7. At trial, the government argued that, by explaining his present inability to provide military intelligence by reference to the fact that he had not been "working ... in the field of making meals" for four years, Abu-Jihaad was effectively admitting that he had leaked military intelligence while in the Navy.
Based on the evidence summarized, on March 5, 2008, the jury found Abu-Jihaad
This appeal followed.
In securing Abu-Jihaad's conviction, the prosecution relied on certain recorded evidence intercepted pursuant to court orders issued under the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. § 1801 et seq. Abu-Jihaad submits that the district court erred in refusing to suppress this evidence because (1) on its face, FISA violates the Fourth Amendment; and (2) in any event, the statute's requirements were not satisfied in this case. We identify no merit in either argument.
Enacted in 1978, FISA permits the Chief Justice of the United States to designate eleven federal judges as the Foreign Intelligence Surveillance Court ("FISA Court"), see id. § 1803(a)(1), with jurisdiction to entertain ex parte executive applications for electronic surveillance
As originally enacted, FISA required a high-ranking member of the executive branch to certify that "the purpose" for which a warrant was being sought was to obtain "foreign intelligence information." 50 U.S.C. § 1804(a)(7)(B) (Supp. V 1981).
In 2001, Congress amended FISA as part of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ("PATRIOT Act"), Pub.L. No. 107-56, 115 Stat. 271 (2001). Among other things, Congress indicated that it did not, in fact, require foreign intelligence gathering to be the primary purpose of the requested surveillance to obtain a FISA warrant. Rather, upon satisfaction of all other FISA requirements, Congress authorized FISA Court judges to issue warrants upon executive certification that acquisition of foreign intelligence information is "a significant purpose" of the requested surveillance. See id. § 218, 115 Stat. at 291 (codified as amended at 50 U.S.C. § 1804(a)(6)(B)) (emphasis added).
Because neither Duggan nor Stewart considered FISA's constitutionality in light of the statute's amendment by the PATRIOT Act, Abu-Jihaad submits that
In support of his challenge, Abu-Jihaad cites Mayfield v. United States, 504 F.Supp.2d 1023 (D.Or.2007) (holding FISA in violation of Fourth Amendment). That district court decision, however, has now been vacated by the Ninth Circuit on standing grounds. See Mayfield v. United States, 599 F.3d 964, 973 (9th Cir.2010). Meanwhile, all other courts that have considered the issue, both before and after enactment of the PATRIOT Act, have rejected constitutional challenges to FISA. See United States v. Ning Wen, 477 F.3d 896, 898 (7th Cir.2007); United States v. Damrah, 412 F.3d 618, 625 (6th Cir.2005); In re Sealed Case, 310 F.3d at 742-46; United States v. Johnson, 952 F.2d 565, 573 (1st Cir.1991); United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir.1987); United States v. Cavanagh, 807 F.2d 787, 790-92 (9th Cir.1987); United States v. Kashmiri, No. 09 Cr. 830-4, 2010 WL 4705159, at *3-5 (N.D.Ill. Nov.10, 2010); United States v. Warsame, 547 F.Supp.2d 982, 993 (D.Minn.2008); United States v. Mubayyid, 521 F.Supp.2d 125, 135-41 (D.Mass.2007); United States v. Holy Land Found. for Relief & Dev., No. 04 Cr. 240, 2007 WL 2011319, at *5-6 (N.D.Tex. July 11, 2007); United States v. Jayyousi, No. 04 Cr. 60001, 2007 WL 851278, at *1 (S.D.Fla. Mar.15, 2007); United States v. Benkahla, 437 F.Supp.2d 541, 554 (E.D.Va. 2006); United States v. Marzook, 435 F.Supp.2d 778, 786 (N.D.Ill.2006); United States v. Nicholson, 955 F.Supp. 588, 590-91 (E.D.Va.1997); In re Kevork, 634 F.Supp. 1002, 1014 (C.D.Cal.1985); United States v. Falvey, 540 F.Supp. 1306, 1312 (E.D.N.Y.1982). We do the same here.
As we discuss more fully in this opinion, the Fourth Amendment warrant requirement demands a showing of probable cause reasonable to the purpose being pursued. Thus, identification of purpose is necessary to assess the reasonableness of the probable cause standards at issue. Where multiple purposes are significant to an investigation, however, 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.
To explain the basis for our decision, we begin by noting that the "primary purpose" requirement urged by Abu-Jihaad was originally formulated to address a constitutional concern not present in this case: the scope of presidential authority to conduct warrantless foreign intelligence surveillance. In United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), the Supreme Court rejected a claim of inherent executive authority to conduct warrantless domestic security surveillance, while specifically not deciding the scope of executive authority to conduct surveillance "with respect to activities of foreign powers or their agents," id. at 321-22, 92 S.Ct. 2125 (emphasis added). The Fourth Circuit addressed that question in United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir.1980), a case involving warrantless foreign intelligence surveillance conducted before enactment of FISA, and resolved it favorably to the executive: "the Executive Branch need not always obtain a warrant for foreign intelligence surveillance," id. at 913. At the same time, however, the court ruled that the executive's power to act without a warrant was cabined by the Article II authority over foreign affairs from which it derived. Thus, Truong held that warrantless foreign intelligence surveillance was constitutionally authorized only with respect to "a foreign power, its agent or collaborators" and when "conducted `primarily' for foreign intelligence reasons." Id. at 915. Some twenty-eight years later, however, the FISA Review Court declined to impose a comparable primary purpose requirement on the warrantless surveillance provisions of the PAA, applicable to foreign powers or agents of foreign powers reasonably believed to be located outside the United States. See In re FISA Section 105B Directives, 551 F.3d at 1010-12 (holding that "more appropriate consideration" is whether "programmatic purpose of the surveillances . . . involves some legitimate objective beyond ordinary crime control").
We have no occasion here to consider these warrantless surveillance decisions. We note simply that there is an important distinction between warrantless surveillances premised exclusively on executive authority, and surveillances pursuant to warrants issued by courts in compliance with standards enacted by Congress. The former require identification of an exception to the Fourth Amendment's warrant requirement. See United States v. Duggan, 743 F.2d at 72 (collecting cases recognizing such exception); see also In re FISA Section 105B Directives, 551 F.3d at 1011-12. By contrast, the latter implement that requirement. Whatever purpose limits might be placed on the president's authority to conduct warrantless surveillance to ensure that the exception does not extend beyond the constitutional ground for its recognition, it does not follow that the Fourth Amendment demands the same limitation when, as under FISA, the powers of all three branches of government—in short, the whole of federal authority—are invoked in determining when warrants may reasonably be sought and issued for the purpose of obtaining foreign intelligence information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring).
As this court has recognized, the Constitution's warrant requirement is "flexible," so that "different standards may
The considerations that the Supreme Court identified in Keith as distinguishing domestic security surveillance from the surveillance of "ordinary crime" and, therefore, as supporting different warrant standards, pertain equally to foreign intelligence surveillance:
Id. at 322, 92 S.Ct. 2125. Also noteworthy is Keith's recognition of Congress's particular competence to weigh these considerations and to establish reasonable warrant requirements for security surveillance, as distinct from those already prescribed for specified crimes in Title III. See id. at 322-23, 92 S.Ct. 2125.
The benchmark for judicial review of the constitutionality of warrant requirements established by Congress is reasonableness: "Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens." Id. at 322-23, 92 S.Ct. 2125. Consistent with this pronouncement, the Court in Keith observed that Congress might well judge that the application and affidavit showing probable cause for security surveillance "need not follow the exact requirements of [18 U.S.C.] § 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court . . .; and that the time and reporting requirements need not be so strict as those in § 2518." Id. at 323, 92 S.Ct. 2125.
This discussion in Keith informed our decision in United States v. Duggan, 743 F.2d at 72-74, upholding the warrant standards established by Congress in FISA for court-ordered surveillance to obtain foreign intelligence information. The PATRIOT Act did not modify the standards FISA applies to warrant applications for the purpose of obtaining foreign intelligence. Rather, it modified the degree to which foreign intelligence gathering must be the purpose of the surveillance. Thus, we need not here reconsider Duggan's holding as to the reasonableness of FISA's warrant standards for the purpose of obtaining foreign intelligence information.
In concluding that the "significant purpose" certification requirement does not raise constitutional concerns, we note that when, in Duggan, we construed FISA's original reference to electronic surveillance for "the purpose" of obtaining foreign intelligence information," as a "requirement that foreign intelligence information be the primary objective of [any court-ordered] surveillance," id. at 77 (emphasis added), we were identifying Congress's intent in enacting FISA, not a constitutional mandate, see generally W.R. Grace & Co.-Conn. v. Zotos Int'l, Inc., 559 F.3d 85, 88 (2d Cir.2009) (recognizing obligation "to look to the plain language of the statute to effectuate the intent of Congress"). This is evident from the fact that we articulated this construction in the context of determining whether the surveillance at issue in Duggan was conducted in accordance with
In considering Congress's decision to allow FISA standards to be triggered by a showing of a "significant" rather than "primary" purpose of obtaining foreign intelligence information, we may properly consider the "practical considerations" informing that choice. See Keith, 407 U.S. at 322, 92 S.Ct. 2125 (observing that different standards may be compatible with the Fourth Amendment in light of the "different policy and practical considerations" at issue); see also United States v. Duggan, 743 F.2d at 72. The relevant background is discussed in detail in In re Sealed Case, 310 F.3d at 722-29. We summarize it here only as necessary to highlight two considerations that emerged from years of Justice Department experience trying to satisfy the "primary purpose" requirement and that informed Congress's amendment of FISA's purpose certification provision: (1) if intelligence and law enforcement officials coordinate efforts in pursuing national security inquiries, it can be difficult, if not impossible, to identify whether their "primary" purpose is to obtain foreign intelligence information or evidence of a crime; and (2) the segregation of intelligence and law enforcement officials to ensure the executive's ability to certify a "primary" foreign-intelligence-gathering purpose can compromise national security.
FISA's original purpose certification requirement was not uniformly construed by the courts. Although we thought it clear that the statute's original reference to "the purpose" to obtain foreign intelligence information referenced the primary purpose, United States v. Duggan, 743 F.2d at 77, the First Circuit construed the requirement in the negative, holding that "the investigation of criminal activity cannot be the primary purpose" of a surveillance order under FISA, United States v. Johnson, 952 F.2d at 572. Meanwhile, the Ninth Circuit hesitated to define FISA's purpose requirement "to draw too fine a distinction between criminal and intelligence investigations," noting that "`[i]nternational terrorism,' by definition, requires the investigation of activities that constitute crimes." United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir.1988). The FISA Review Court echoed this concern in In re Sealed Case, questioning the soundness of any purpose certification standard that assumed "that the government seeks foreign intelligence information (counterintelligence)
In United States v. Duggan, we had "emphasize[d]" this same point, even though we construed "the purpose" requirement of FISA to mean "primary purpose":
743 F.2d at 78. We concluded that where information sought through FISA surveillance "involved international terrorism[,]. . . the fact that domestic law enforcement concerns may also have been implicated did not eliminate the government's ability to obtain a valid FISA order." Id.
In the years after our decision in Duggan, this important point became muddled, if not lost. In 1995, the Justice Department not only committed itself to satisfying the primary purpose test but, "[a]pparently to avoid running afoul" of that test, it adopted procedures limiting contacts between intelligence and law enforcement officials. See In re Sealed Case, 310 F.3d at 727-28 (noting that procedures "eventually came to be narrowly interpreted within the Department of Justice" so as to erect a "wall" to "prevent the FBI intelligence officials from communicating with the Criminal Division regarding ongoing [intelligence] investigations"); see also The Nat'l Comm'n on Terrorist Attacks Upon the U.S., The 9/11 Commission Report 78-80 (2004) (discussing constraints imposed by "primary purpose" requirement on sharing of intelligence information between prosecutors and intelligence agents). Moreover, as the FISA Court became aware of these Justice Department procedures for segregating intelligence and criminal investigative officials, it "adopted elements of them" into certain of its orders. In re Sealed Case, 310 F.3d at 728.
As the FISA Review Court observed, these practices imposed a cost on national security. See id. at 744 & n. 29 (citing congressional hearings indicating that practices implemented to segregate intelligence from law enforcement officials to avoid running afoul of primary purpose test "may well have contributed, whether correctly understood or not, to the FBI missing opportunities to anticipate the September 11, 2001 attacks"). In the aftermath of September 11, 2001, the executive asked Congress to substitute "a purpose" for "the purpose" requirement of FISA so as to allow it to dismantle the wall between intelligence and law enforcement personnel erected to ensure that the primary purpose of any FISA surveillance or search was to obtain foreign intelligence information and not evidence of crime. Id. at 732.
147 Cong. Rec. S10591 (Oct 11, 2001) (quoted in In re Sealed Case, 310 F.3d at 732-33).
To address these practical considerations—i.e., the difficulty in identifying the primary purpose when surveillance is pursued jointly by intelligence and law enforcement officials, and the importance of such joint efforts to protect national security—Congress in the PATRIOT Act amended FISA to provide that, upon satisfaction of all other statutory requirements, FISA warrants could be issued on certification "that a significant purpose of the surveillance is to obtain foreign intelligence information." See Pub.L. No. 107-56, § 218, 115 Stat. at 291 (codified as amended at 50 U.S.C. § 1804(a)(6)(B)). In a separate amendment, Congress expressly authorized federal officers conducting surveillance with the aim of obtaining foreign intelligence information to coordinate their activities with law enforcement officers. See id. § 504, 115 Stat. at 364 (codified as amended at 50 U.S.C. § 1806(k)(1)) ("Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State . . . to coordinate efforts to investigate or protect against [, inter alia, actual or potential attack by a foreign power or agent of a foreign power, sabotage, international terrorism, or other clandestine intelligence activities by a foreign power or agent of a foreign power]."). In so doing, Congress made clear that such coordination would preclude neither a finding that FISA's "significant purpose" certification requirement was met, nor the entry of an order of approval under § 1805. See 50 U.S.C. § 1806(k)(2).
Abu-Jihaad does not dispute the considerations prompting Congress's adoption of the "significant purpose" amendment. Rather, he argues that if FISA's probable cause standards are applied without a "primary" government purpose to obtain foreign intelligence information, the executive will be able to manipulate FISA to obtain surveillance warrants for criminal investigations without demonstrating the probable cause required by Title III for that purpose. Because we conclude that the required certification of "a significant purpose" to obtain foreign intelligence information adequately protects against this possibility, we reject Abu-Jihaad's constitutional challenge to this language.
As Congress and the courts have recognized, government investigations relating to national security frequently pursue more than one purpose. See United States v. Duggan, 743 F.2d at 78 (stating that, in enacting FISA, "Congress recognized that in many cases the concerns of the government with respect to foreign intelligence will overlap those with respect to law enforcement"); see also In re FISA Section 105B Directives, 551 F.3d at 1011 ("A surveillance with a foreign intelligence purpose often will have some ancillary criminal law purpose."). Indeed, multiple purposes may be inevitable given FISA's definition of "foreign intelligence information" and "agent of a foreign power" by reference to serious criminal conduct. See In re Sealed Case, 310 F.3d at 724 (observing that "foreign intelligence information" as defined in FISA "`can include evidence of certain crimes relating to sabotage, international terrorism, or clandestine intelligence activities'" (quoting H.R.Rep. No. 95-1283, at 49 (1978)) (emphasis omitted)); see also 50 U.S.C. § 1801(b) (defining "agent of foreign power" by reference to involvement in, inter alia, clandestine intelligence gathering, sabotage, and international terrorism). In such circumstances, intelligence and law enforcement purposes "`tend to merge,'" making it difficult to identify one as primary. See In re Sealed Case, 310 F.3d at 724-25 (quoting S.Rep. No. 95-701, at 10-11, 1978 U.S.C.C.A.N. 3904, 3911-12 (1978)). Indeed, as experience has taught, if the executive is required to certify that its "primary" purpose in conducting surveillance is to obtain foreign intelligence information, it may well have to exclude law enforcement officials from playing any part in the surveillance. Such a segregation of purposes makes no sense in terms of protecting national security. See id. at 727 ("[I]f one considers the actual ways in which the government would foil espionage or terrorism it becomes apparent that criminal prosecution analytically cannot be placed easily in a separate response category."). More important for our purposes, it is not compelled by the Fourth Amendment.
For Fourth Amendment purposes, the critical question is not whether the executive can certify that obtaining foreign intelligence information is its "primary" purpose, but whether it can certify that it is a bona fide purpose of the surveillance.
We need not here decide at what point a purpose advanced by the executive might be so trivial as to preclude it from being pursued in good faith. Congress adequately safeguarded against that possibility in FISA by demanding certification of "a significant purpose" to obtain foreign intelligence information, rather than simply "a purpose" as originally requested by the executive. Moreover, the FISA Review Court, whose rulings bind the FISA Court in issuing surveillance warrants under the statute, has construed the significant purpose standard to require "that the government have a measurable foreign intelligence purpose, other than just criminal prosecution of even foreign intelligence crimes." Id. at 735.
The FISA Review Court has also plainly ruled that the government's certified purpose in seeking a FISA warrant is subject to judicial review. See id. at 735-36 (recognizing FISA Court's authority to seek more information pertaining to government's purpose). While "a significant purpose standard" eliminates "any justification for the FISA Court to balance the relative weight the government places on criminal prosecution," if the court determines that the government's sole objective is "merely to gain evidence of past criminal conduct—even foreign intelligence crimes—to punish the agent rather than halt ongoing espionage or terrorist activity, the application should be denied." Id. at 735. Thus, the FISA Review Court has ruled that to satisfy the significant purpose test, it must appear that "the government entertains a realistic option of dealing" with the target of the FISA surveillance "other than through criminal prosecution." Id.
We do not here decide which, if any, of these FISA Review Court conclusions are constitutionally compelled. We conclude simply that FISA's "significant purpose" requirement, so construed, is sufficient to ensure that the executive may only use FISA to obtain a warrant when it is in good faith pursuing foreign intelligence gathering, the purpose for which that statute's warrant standards apply. The fact that the government may also be pursuing other purposes, including gathering evidence for criminal prosecution, compels no different conclusion.
Accordingly, we reject Abu-Jihaad's argument that FISA is unconstitutional because it does not require certification of a primary purpose to obtain foreign intelligence information. Rather, we hold that
Abu-Jihaad submits that, even if FISA is not unconstitutional on its face, his conviction must be vacated because the statute's conditions were not satisfied in securing some of the evidence supporting his conviction. Specifically, Abu-Jihaad contends that the government's application for a surveillance order (a) failed to satisfy the "significant purpose" requirement of 50 U.S.C. § 1804(a)(6)(B); (b) failed to demonstrate probable cause to believe that he was an agent of a foreign power or that his telephones were being used or about to be used by a foreign power or agent of such a power, see id. § 1804(a)(3)(A)-(B); (c) included "clearly erroneous" § 1804(a)(6) certifications; and (d) was based on false statements, requiring a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Moreover, he faults the district court for deciding these questions against him without affording him access to the FISA warrant application papers and an adversarial hearing.
In FISA, Congress expressly provided that where, as here, the Attorney General certifies that "disclosure [of FISA materials] or an adversary hearing would harm the national security of the United States," a district court must "review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted." 50 U.S.C. § 1806(f). While the district court retains authority to order disclosure of FISA materials "under appropriate security procedures and protective orders," it may do so "only where such disclosure is necessary to make an accurate determination of the legality of the surveillance." Id. Where the court "determines that the surveillance was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure." Id. § 1806(g). Mindful of these provisions, we have concluded that disclosure of FISA materials "is the exception and ex parte, in camera determination is the rule." United States v. Stewart, 590 F.3d at 129 (internal quotation marks and brackets omitted).
Here the district court found that "review of the FISA materials in this case [was] relatively straightforward and not complex." United States v. Abu-Jihaad, 531 F.Supp.2d 299, 310 (D.Conn.2008). Further, while keeping "the requirements of the Constitution, the statute, and Duggan fixed firmly in mind[,]" the district court determined that disclosure and an adversary hearing were unnecessary because its in camera, ex parte review permitted it to assess the legality of the challenged surveillance and the requirements of due process did not counsel otherwise. Id. at 311 & n. 11. Upon our own review of the materials supporting the challenged FISA orders, we reach the same conclusions. Accordingly, we identify no denial of due process in the district court's decision not to order disclosure of FISA materials to the defendant, or to conduct a preliminary hearing to rule on Abu-Jihaad's challenge to FISA's implementation in this case.
In considering Abu-Jihaad's claims that the government failed to satisfy the significant purpose, probable cause, and certification requirements of FISA, and proffered false information warranting a Franks hearing, we have conducted a careful in camera review of the challenged FISA orders, the government's applications for those orders, and the classified materials submitted in support of those applications. We have similarly reviewed the government's classified Memorandum in Opposition to the Defendant's Motion for Suppression of FISA Evidence and Motion for Disclosure of FISA Applications, Orders and Related Materials and an Adversary Hearing; the classified declaration of Joseph Billy, Jr., Assistant Director of the Counterterrorism Division of the FBI; and the FBI's classified declaration regarding its compliance with minimization procedures applicable to the challenged orders. Like the district court, we conclude that there is no merit to any of Abu-Jihaad's challenges to the government's compliance with FISA requirements in this case, nor any basis for a Franks hearing.
FISA warrant applications are subject to "minimal scrutiny by the courts," both upon initial presentation and subsequent challenge. United States v. Duggan, 743 F.2d at 77. Of course, even minimal scrutiny is not toothless. Cf. Wilson v. C.I.A., 586 F.3d 171, 185 (2d Cir. 2009) (observing in non-FISA context that "[d]eferential review" of classification challenge "does not equate to no review" (citing John Doe, Inc. v. Mukasey, 549 F.3d 861, 881 (2d Cir.2008))). In reviewing a warrant application, the FISA Court properly considers whether (1) the application makes the probable cause showing required by FISA, i.e., that the target of the warrant is a foreign power or agent thereof and that the facilities or places to be searched or surveilled are being used or about to be used by a foreign power or its agent; (2) the application is otherwise complete and in the proper form; and (3) when the target is a United States person, the application's certifications are not "clearly erroneous." United States v. Duggan, 743 F.2d at 77. Further, as the FISA Review Court has now clarified, in deciding whether to grant a warrant application, the FISA Court may also request more information—including information as to purpose—as necessary to make these discrete determinations. See In re Sealed Case, 310 F.3d at 736 ("[I]f the FISA court has reason to doubt that the government has any real non-prosecutorial purpose in seeking foreign intelligence information it can demand further inquiry into the certifying officer's purpose."). In considering challenges to FISA Court orders, however, "the representations and certifications submitted in support of an application for FISA surveillance should be presumed valid" by a reviewing court absent a showing sufficient to trigger a Franks hearing. United States v. Duggan, 743 F.2d at 77 n. 6.
Although the established standard of judicial review applicable to FISA warrants is deferential, the government's detailed and complete submissions in this case would easily allow it to clear a higher standard of review. While we are necessarily circumspect in our discussion of these materials, like the district court, we observe that they "described at length the facts supporting the Government's assertion that there was probable cause to believe that the target of the FISA surveillance"—who was "described with particularity"—"was an agent of a foreign
This record convincingly satisfies FISA's purpose and probable cause requirements, and further reveals no clear error in the certifications by high-ranking executive officials. See id. at 312. We therefore reject Abu-Jihaad's conclusory claims to the contrary as without merit. Further, because nothing in the record before this court—which includes the full trial record—provides any basis to think that the FISA application contained any false statement, much less one made "knowingly and intentionally, or with reckless disregard for the truth," Franks v. Delaware, 438 U.S. at 155, 98 S.Ct. 2674, we identify no error in the district court's decision not to hold a Franks hearing.
In sum, because we identify no constitutional infirmity in Congress's decision to allow FISA warrants to issue on certification of a "significant purpose" to obtain foreign intelligence information, and because we conclude that the record—without need for further disclosure or hearing—convincingly demonstrates that all FISA warrant requirements were satisfied in this case, we conclude that the district court correctly denied Abu-Jihaad's motion to suppress FISA-derived evidence.
Abu-Jihaad asserts that evidentiary errors deprived him of his due process right to a fair trial. Specifically, he submits that (1) recordings of telephone conversations in which he participated in 2006 were not relevant to the charged 2001 communication of national defense information, see Fed.R.Evid. 401, and, in any event, more prejudicial than probative, see Fed.R.Evid. 403; and (2) videos obtained from and materials available on Azzam's websites should also have been excluded under Rule 403. The district court ruled to the contrary in two detailed written decisions. See United States v. Abu-Jihaad, 553 F.Supp.2d 121 (D.Conn.2008) (ruling on videos and website materials); United States v. Abu-Jihaad, No. 07 Cr. 57, 2008 WL 282368 (D.Conn. Jan.31, 2008) (ruling on 2006 recordings).
We review a district court's evidentiary rulings deferentially, mindful of its superior position to assess relevancy and to weigh the probative value of evidence against its potential for unfair prejudice. See United States v. Royer, 549 F.3d 886, 901 (2d Cir.2008). We will reverse an evidentiary ruling only for "abuse of discretion," see United States v. Quinones, 511 F.3d 289, 307 (2d Cir.2007), which we will identify only if the ruling was "arbitrary and irrational," United States v. Dhinsa, 243 F.3d 635, 649 (2d Cir.2001) (internal quotation marks omitted). That is plainly not this case.
A review of the recorded conversations confirms the district court findings that therein Abu-Jihaad demonstrated his familiarity with Azzam as an organization sympathetic to jihad and admitted his own correspondence with Azzam through its websites, specifically in an email discussing the bombing of the U.S.S. Cole. See United States v. Abu-Jihaad, 2008 WL 282368, at *4. In the conversations, Abu-Jihaad further demonstrated an obsession with secrecy in discussing matters related to jihad. Not only did he routinely employ
To be relevant, evidence need not be sufficient by itself to prove a fact in issue, much less to prove it beyond a reasonable doubt. See Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 927 (2d Cir.1977) ("Evidence need not be conclusive in order to be relevant."). Rather, evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401; see United States v. Schultz, 333 F.3d 393, 416 (2d Cir.2003) ("Nonconclusive evidence should still be admitted if it makes a proposition more probable than not." (internal quotation marks omitted)).
Abu-Jihaad's discussions of Azzam, its websites, and his email communications with that organization were relevant because they linked him to the recipient of the Battlegroup Document. This fact made it more probable that, among the discrete group of persons with knowledge of the classified information at issue, Abu-Jihaad was the source of the unauthorized disclosure to Azzam. Although Abu-Jihaad endeavored to reduce this likelihood by offering evidence that some transit plan information was more widely available than the Navy maintained, see infra at 136-37, such evidence would have affected only the weight, not the admissibility, of the recorded conversations. See United States v. Schultz, 333 F.3d at 416 (observing that "factors which make evidence less than conclusive affect only weight, not admissibility" (internal quotation marks omitted)).
Similarly, the recordings demonstrating Abu-Jihaad's keen concern with secrecy were relevant both generally in demonstrating consciousness of guilt and specifically in explaining why there was no evidence on Azzam websites about transmittal of the Battlegroup Document or the information contained therein. As for Abu-Jihaad's recorded discussion of why he could not provide current military intelligence—"I ain't been working ah in, in the field of making meals and or, you know . . . [i]n a, in a long time. I've been out of that for, ah, over ah, quatro years you know," Trial Tr. at 989-90; Gov't Ex. 141k at 7—the statement permitted an inference that, four years earlier, Abu-Jihaad had been engaged in "making meals," i.e., providing military intelligence, an admission highly probative of his commission of the charged crime. That the statement might be construed more innocently was a matter properly addressed through cross-examination and argument to the jury, not a ground for excluding the evidence as irrelevant.
Rule 403 warrants no different conclusion. As we observed in United States v. LaFlam, 369 F.3d 153 (2d Cir. 2004), when we review a district court's evaluation of evidence under Rule 403, we "generally maximize its probative value and minimize its prejudicial effect," id. at 155 (internal quotation marks and brackets omitted). Applying this standard, we conclude that the recorded discussions were both highly probative of the charged crime and, to the extent they referenced uncharged
The district court instructed the jury that (a) "Abu-Jihaad [was] not . . . charged with anything based on the conversations. . . from 2006," (b) "the events that form[ed] the basis of the charges against . . . Abu-Jihaad in this case occurred in 2001, not 2006," and (c) the jury was "not to speculate about what was the nature of the investigation" involving Shareef and the confidential informant or "whether or if any charges resulted from that investigation." Trial Tr. at 992. Abu-Jihaad does not challenge the adequacy of these instructions. Thus, his contention that the 2006 recordings permitted the jury to speculate about Shareef's plans reduces to a challenge to the presumption that jurors follow the instructions they are given. See United States v. Downing, 297 F.3d 52, 59 (2d Cir.2002) ("Absent evidence to the contrary, we must presume that juries understand and abide by a district court's limiting instructions."). Because Abu-Jihaad points to nothing in the record to undermine this presumption, we identify no merit in his argument, and we conclude that the district court acted well within its discretion in admitting the 2006 recordings.
We reach the same conclusion with respect to the admitted Azzam website materials, which consisted of (a) excerpts from three videos purchased by Abu-Jihaad from Azzam, and (b) other materials marketed and/or posted on Azzam's websites. Abu-Jihaad concedes the relevancy of these materials to an understanding of Azzam's operations and to his own mens rea. Nevertheless, he contends that the evidence should have been excluded under Rule 403. We are not persuaded.
With respect to the videos, which we briefly describe supra at 113 & n. 12, the district court determined that the pro-jihadist contents of the videos were relevant to understanding Abu-Jihaad's motive and intent in communicating information that could have resulted in the destruction of the very ship on which he served. See United States v. Abu-Jihaad, 553 F.Supp.2d at 127-28. At the same time, the district court was conscientious in ensuring against unfair prejudice. See United States v. Salameh, 152 F.3d 88, 110 (2d Cir.1998). It reviewed the films in their entirety before approving only selected excerpts for display to the jury. Although these excerpts included depictions of violence, as was necessary not to distort the sense of the films as a whole, the depictions were limited and, as the district court accurately observed, less gruesome than many seen on "nightly news dispatches from Baghdad." United States v. Abu-Jihaad, 553 F.Supp.2d at 128.
The district court also allowed the jury to view various materials, including Osama bin Laden's 1996 fatwa against the United States, that were marketed or posted on Azzam's websites in or around 2001. The government could not prove that Abu-Jihaad saw a particular posting, only that he visited the site during times when the postings were available. See United States v. Abu-Jihaad, 553 F.Supp.2d at 128-29. The court acknowledged that such materials had the potential to "inflame a juror's passions." Id. at 129. Nevertheless, it concluded that the risk of such prejudice did not outweigh the probative value of the materials to the jury's assessment of Abu-Jihaad's intent and motive in communicating with Azzam. In reaching this conclusion, the court emphasized that it had gone to "extraordinary lengths" to select jurors who would not let passion or bias infect their consideration of evidence and who would conscientiously follow appropriate limiting instructions. Id. On this record, we identify no abuse of discretion in admission of the Azzam website materials.
Abu-Jihaad argues that the district court erred in denying his motion for acquittal on the 18 U.S.C. § 793(d) count of conviction because the trial evidence was insufficient to prove guilt. See Fed.R.Crim.P. 29. The rule of constitutional sufficiency derives from the Due Process Clause and instructs that no conviction may be obtained "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime . . . charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). While we review de novo the denial of a Rule 29 sufficiency challenge, see United States v. Pizzonia, 577 F.3d 455, 462 (2d Cir.2009), we apply the same deferential standard as the district court in assessing the trial evidence, i.e., we view that evidence in the light most favorable to the government, assuming that the jury resolved all questions of witness credibility and competing inferences in favor of the prosecution, see United States v. Burden, 600 F.3d 204, 214 (2d Cir.2010); United
The thrust of Abu-Jihaad's sufficiency challenge is that the government's case rested entirely on circumstantial evidence. Direct evidence, however, is not constitutionally required to support a conviction. The law is well established that the government may secure conviction based solely on circumstantial evidence, provided it is sufficient to prove the elements of the charged crime beyond a reasonable doubt. See United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir.2008). To convict Abu-Jihaad of the § 793(d) crime with which he was charged, the government was required to prove beyond a reasonable doubt that he (1) lawfully had possession of, access to, control over, or was entrusted with information relating to the national defense; (2) had reason to believe that such information could be used to the injury of the United States or to the advantage of any foreign nation; (3) willfully communicated, delivered, transmitted, or caused to be communicated, delivered, or transmitted such information; and (4) did so to a person not entitled to receive it. See 18 U.S.C. § 793(d); see also United States v. Abu-Jihaad, 600 F.Supp.2d at 384 (quoting jury charge).
Abu-Jihaad does not—and cannot— challenge the sufficiency of the evidence to establish the first, second, and fourth elements of the crime. The trial evidence convincingly showed that, as a member of the U.S.S. Benfold's navigation division with a "secret" security clearance, Abu-Jihaad had access to the Constellation battlegroup's transit plan and the classified information contained therein. Further, because the transit plan was classified as "confidential" and contained information about the anticipated movements of Navy ships into areas of heightened vulnerability to attack, there can be no question that this information related to the national defense. See Gorin v. United States, 312 U.S. 19, 28, 61 S.Ct. 429, 85 L.Ed. 488 (1941) (construing phrase "national defense" in context of Espionage Act as "generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness" (internal quotation marks omitted)); United States v. Heine, 151 F.2d 813, 815-17 (2d Cir.1945) (L. Hand, J.) (construing "information relating to the national defense" to include only information
Thus, Abu-Jihaad's sufficiency challenge is reasonably understood to focus on the third element of the crime. He submits that the trial evidence was insufficient to permit any rational jury to find beyond a reasonable doubt that he was the person who willfully made the charged disclosure of national defense information. Although the district court observed that this challenge was not "insubstantial" given that the supporting evidence for this element was largely circumstantial, see United States v. Abu-Jihaad, 600 F.Supp.2d at 365, upon careful review of the record, it concluded that the evidence was sufficient to permit the jury to find the third element proved beyond a reasonable doubt. Upon our own review of the record, we reach the same conclusion. From circumstances indicating that (1) the information in the Battlegroup Document communicated to Azzam came from a Navy insider, (2) Abu-Jihaad was an insider with access to that information and the only identified member of the Navy who communicated support for jihad to Azzam in the relevant time period, and (3) Abu-Jihaad admitted disclosing military intelligence while in the Navy, a reasonable jury could conclude beyond a reasonable doubt that Abu-Jihaad was, in fact, the person who had willfully disclosed the classified information in the Battlegroup Document to Azzam.
The contents of the Battlegroup Document, specifically, its identification of significant dates referenced in the classified transit plan—notably March 20, 2001, for an ammunition stop in Hawaii; April 6, 2001, for a port call in Sydney; and April 29, 2001, for passage through the Strait of Hormuz (in fact, the date for crossing the CHOP point)—strongly supported an inference that the source of the information contained therein had to have been a Navy insider. In urging otherwise, Abu-Jihaad relies on arguments that he unsuccessfully made to the jury: that the Battlegroup Document contained so much publicly available information and so many errors that it could just as easily, if not more likely, have been transmitted by someone outside the Navy. The jury's rejection of this argument was hardly irrational.
To the extent the defense adduced evidence in the public domain about movements
Similarly unavailing is Abu-Jihaad's reliance on errors in the Battlegroup Document to argue that the source of its information could not have been a Navy insider. To the extent the errors involve misspelling of Navy terms, the jury would have seen that Navy insider Abu-Jihaad routinely misspelled ordinary words in his emails with Azzam. Insofar as defendant points to the Battlegroup Document's misidentification of April 29, 2001, as the date for transit through the Strait of Hormuz (when in fact it was the date for crossing the CHOP point) and March as a tax-free month (when in fact it was April), a reasonable jury could have concluded that the errors were either inadvertent, introduced after the information was originally conveyed, or reflective of a Navy insider conveying information outside his particular area of responsibility. Indeed, a jury might reasonably have rejected the coincidence of anyone other than an insider selecting the same date (April 29, 2001) for transiting the Strait of Hormuz as had been emphasized in each iteration of the transit plan for crossing the CHOP point, particularly as the latter event would take place only a short time before the ships entered the Strait of Hormuz, an easily identified natural geographic reference compared to the CHOP point, which was defined only by degrees of latitude and longitude. Moreover, a jury was entitled to consider that the Battlegroup Document concluded with the instruction: "Please destroy message." Gov't Ex. 1. A person transmitting publicly available information would have less reason to include such an instruction than a Navy insider transmitting classified information.
That Abu-Jihaad was the insider who transmitted classified information about the Constellation battlegroup's transit plan was established, in part, by evidence of his opportunity and motive to do so. Abu-Jihaad does not seriously dispute that, as a signalman with a secret-level security clearance, he had access to the transit plan and, thus, the opportunity to transmit it to an unauthorized person. See United States v. Abu-Jihaad, 600 F.Supp.2d at
Instead, Abu-Jihaad submits that any inference that he transmitted classified information to Azzam was undermined by his open display of jihadist sympathies in the Navy, as evidenced by his sharing Azzam videos with shipmates and his use of a Navy-monitored email account to communicate with Azzam. While Abu-Jihaad was free to make this argument to the jury, it was hardly compelled to accept it and to return a verdict of not guilty. The jury could have determined that if Abu-Jihaad used his military account to convey national defense information, he did so prior to the battlegroup's March 15, 2001 deployment and, thus, at a time when his Navy email was not being monitored. Alternatively, the jury could have found that Abu-Jihaad likely used his personal email account to transmit classified information. That, after all, was the account he used to send his Cole email to Azzam praising the murderous bombing of a Navy ship as a "martyrdom operation." See Gov't Ex. 19.
In urging otherwise, Abu-Jihaad observes that in the Cole email, sent in July 2001, he introduced himself as a United States sailor, an unnecessary action if he had previously disclosed military intelligence to Azzam. The Cole email, however, was sent to an Azzam email account specifically designated for the general public to send emails of support. A rational jury might well have concluded that Abu-Jihaad sent the classified information to a different Azzam email address, with or without introducing himself.
In sum, even if the email evidence could have supported inferences more favorable to Abu-Jihaad, it was nevertheless sufficient to support a reasonable inference that Abu-Jihaad was the only person shown to have had both the opportunity and motive to transmit the classified transit plan information to Azzam. See United States v. Burden, 600 F.3d at 226 (reiterating established rule that it is for jury to choose among competing inferences supported by evidence).
In addition to evidence establishing Abu-Jihaad's opportunity and motive to disclose classified information, the jury heard recorded statements in which Abu-Jihaad effectively admitted to having actually done so. In a series of conversations intercepted in 2006, which we detail in our discussion of the facts, see supra at 115-16, Abu-Jihaad repeatedly discussed providing Shareef, a suspected terrorist sympathizer, with "meals." A confidential informant who participated in some of the conversations testified at trial that "meals" was a code for military intelligence. Thus, while generally promising Shareef support, Abu-Jihaad explained that he had been out of the Navy too long to have any current intelligence to convey: "I haven't been on that job, so I don't—you know what I'm saying, I haven't been there . . . to see . . . what the fresh meal is." Gov't Ex. 141h at 1. Abu-Jihaad nevertheless encouraged Shareef to speak with "the Mexican," identified at trial as Miguel Colon, who had been discharged from the Navy only two months earlier: "[H]e can give you a fresh meal `cuz . . . he just finished his job, there, less than a month ago. . . ." Id. at 1-2. Then, in a conversation
Although Abu-Jihaad suggests that the statement only indicated that he was not in a position to secure current intelligence because he had been out of the Navy for four years, a reasonable jury could have construed the statement as an admission of past intelligence disclosures. Abu-Jihaad did not, after all, state simply that he had never worked "in the field of making meals," i.e., providing military intelligence. Rather, he stated that he "ain't been working uh, in, in, in the field of making meals and or, you know . . . in a long time." Implicit in a statement that one has not done something "in a long time" is an admission to having done that thing at some time in the past, in Abu-Jihaad's case, "working . . . in the field of making meals," i.e., providing military intelligence, some four years ago when he was in the Navy and held a security clearance to access certain classified information.
While Abu-Jihaad's implicit admission is general, making no specific reference to the Battlegroup Document, on a sufficiency challenge, we review pieces of evidence not in isolation, but in conjunction. See United States v. Rigas, 490 F.3d 208, 230 (2d Cir.2007); United States v. Miller, 116 F.3d 641, 676 (2d Cir.1997). Here the totality of the evidence permitted the jury to find, inter alia, that: classified information about Navy operations was transmitted to Azzam, an organization sympathetic to violent jihad; the source of the disclosed classified information was a Navy insider; Abu-Jihaad was a Navy insider with access to the classified information at issue; defendant was in regular communication with Azzam at and about the time relevant to the charged disclosure; although some of Abu-Jihaad's communications had been deleted, those that were retrieved revealed his strong support for jihad, even when directed against his own country; no other member of the United States military had such a record of communication with Azzam; and Abu-Jihaad essentially admitted in recorded conversations to disclosing classified information during his service in the Navy. These findings, in turn, were sufficient to support a finding beyond a reasonable doubt that Abu-Jihaad was the person who communicated national defense information pertaining to the 2001 transit plan for the Constellation battlegroup to persons at Azzam in violation of 18 U.S.C. § 793(d). Accordingly, we conclude that Abu-Jihaad's challenge to the sufficiency of the evidence supporting his conviction is without merit.
In his final challenge, Abu-Jihaad contends that the district court erred not only in granting the government's motions for protective orders pursuant to Section 4 of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3, §§ 1-16, but also in considering ex parte whether the classified materials—submitted and reviewed in camera—were discoverable. The district court set forth its reasons for issuing the challenged orders in two opinions. See United States v. Abu-Jihaad, No. 07 Cr. 57, 2008 WL 346121 (D.Conn. Feb.4, 2008); United States v. Abu-Jihaad, No. 07 Cr. 57, 2008 WL 596200 (D.Conn. Feb.22, 2008). Nevertheless, because neither Abu-Jihaad nor his counsel
We review for abuse of discretion a district court's decision to issue a protective order pursuant to Section 4 of CIPA, including its determination whether evidence is helpful or material to the defense and whether unclassified summaries or admissions are properly substituted for classified information. See United States v. Stewart, 590 F.3d at 131; United States v. Aref, 533 F.3d 72, 80 (2d Cir.2008). We detect no such abuse here.
CIPA, which establishes certain procedures for the handling of classified information in criminal cases, is designed "to protect[ ] and restrict[ ] the discovery of classified information in a way that does not impair the defendant's right to a fair trial." United States v. Aref, 533 F.3d at 78 (alterations in original; internal quotation marks omitted); see also United States v. Pappas, 94 F.3d 795, 799 (2d Cir.1996) (observing that purpose of CIPA is to "establish procedures to harmonize a defendant's right to obtain and present exculpatory material upon his trial and the government's right to protect classified material in the national interest" (internal quotation marks omitted)). CIPA defines "[c]lassified information" as "any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security." 18 U.S.C. app. 3, § 1(a). In regulating the discovery of such information, Section 4 of CIPA instructs as follows:
Id. app. 3, § 4. As we have recently observed, "[t]his section clarifies district courts' power under Federal Rule of Criminal Procedure 16(d)(1) to issue protective orders denying or restricting discovery for good cause, which includes information vital to the national security." United States v. Stewart, 590 F.3d at 130 (internal quotation marks omitted).
To be clear, CIPA does not confer on the government a privilege to refrain from disclosing classified information; it merely presupposes one. See id. The privilege it presupposes has its origins in the common-law privilege against disclosure of state secrets, see id.; United States v. Aref, 533 F.3d at 78, which "allows the government to withhold information from discovery when disclosure would
Having carefully reviewed the classified materials that are the subject of the challenged protective orders, we reach the same conclusion as the district court: that the government has demonstrated a reasonable danger that disclosure would jeopardize national security. Again, our discussion of the classified information is necessarily circumspect. Nevertheless, we conclude that the affidavits submitted by government officials satisfactorily identify specific facts that (a) render the materials here at issue classified and (b) support the conclusion that disclosure of those materials would pose a risk to national security.
We further conclude that the challenged protective orders did not deny Abu-Jihaad evidence that was either helpful or material
While the district court concluded that four of the six categories of information at issue in the government's second motion for a protective order were either undiscoverable or not "helpful or favorable to the defense," it determined that the remaining two categories contained discoverable information. United States v. Abu-Jihaad, 2008 WL 596200, at *2-4. Nevertheless, because one of the categories was cumulative of information already provided to Abu-Jihaad in the course of discovery, the district court determined that the government had no obligation to disclose such information. See id. at *3. As for the second category, the district court found the government's disclosure obligation satisfied by its production of various letters, FBI reports, and other discovery to the defense. See id. at *2-3.
Upon our own in camera review of the underlying materials and the sealed records preserved for appeal, including a detailed comparison of original discoverable documents with the unclassified summaries approved by the district court, we conclude that the district court's rulings with respect to the discoverable nature of the classified materials and the government's compliance with any extant discovery obligations manifest no abuse of discretion. Indeed, we commend the district court's careful discharge of its CIPA obligations, particularly its effective protection of Abu-Jihaad's rights despite the defense's limited ability to participate in the CIPA proceedings.
Insofar as Abu-Jihaad faults the district court for entertaining the government's
In sum, because we conclude that the government's submissions fully support the district court's entry of the challenged CIPA orders, that the district court acted well within its discretion in reviewing those submissions ex parte and in camera, and that the orders did not deny Abu-Jihaad any information helpful or material to his defense, we identify no basis in CIPA for vacating the conviction.
To summarize, we conclude that:
1. Evidence obtained pursuant to FISA warrants was properly admitted into evidence against defendant because FISA was not rendered unconstitutional by a PATRIOT Act amendment that allows surveillance warrants to issue upon certification by the executive of a "significant" rather than "primary" purpose to obtain foreign intelligence information. Such a certification, together with FISA's other requirements, strikes a reasonable balance between the government's interest in obtaining foreign intelligence information and the protection of individuals' Fourth Amendment rights.
2. Inculpatory evidence obtained pursuant to FISA warrants was properly admitted into evidence against defendant because all FISA requirements were complied with in this case, and due process did not demand disclosure of FISA applications to defendant or an adversarial hearing.
3. The district court acted within its discretion in admitting into evidence (a) recorded telephone conversations from 2006 in which defendant participated, (b) excerpts of three videos purchased from Azzam by defendant, and (c) other materials marketed and/or posted on the Azzam websites in or around 2001.
4. The trial evidence was sufficient to support defendant's conviction for disclosing national defense information to persons not entitled to receive it in violation of 18 U.S.C. § 793(d).
Accordingly, the judgment of conviction is AFFIRMED.
50 U.S.C. § 1801(e).
As amended in 2001, FISA requires an application for a surveillance warrant to include, inter alia, a certification from a high-ranking executive official:
Id. § 1804(a)(6). As discussed infra, subsection (B)—the "significant purpose" clause—is at the core of Abu-Jihaad's constitutional challenge to FISA.
50 U.S.C. § 1801(a).
Id. § 1801(b).
Similarly, the fact that FISA authorizes surveillance for a longer period than Title III, compare 50 U.S.C. § 1805(d)(1) (authorizing surveillance of U.S. person for up to 90 days) with 18 U.S.C. § 2518(5) (authorizing surveillance for up to 30 days), is not unreasonable in light of "the nature of national security surveillance, which is `often long range and involves the interrelation of various sources and types of information,'" In re Sealed Case, 310 F.3d at 740 (quoting Keith, 407 U.S. at 322, 92 S.Ct. 2125). Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), relied on by Abu-Jihaad, is not to the contrary. In invalidating New York's wiretap statute on Fourth Amendment grounds, Berger cast doubt, inter alia, on the law's 60-day duration provision. See id. at 59, 87 S.Ct. 1873. Although "Title III was enacted, in large part, to meet the restrictions imposed on electronic surveillance practices and procedures by Berger," United States v. Figueroa, 757 F.2d 466, 471 (2d Cir.1985), Berger's focus was on the proper bounds of surveillance in an ordinary criminal case. As the Supreme Court subsequently recognized in Keith, to address national security concerns, Congress could constitutionally enact surveillance legislation in which "the time and reporting requirements" might "not be so strict" as those in Title III. See 407 U.S. at 323, 92 S.Ct. 2125. Thus, we conclude that Congress's decision to permit FISA surveillance of a U.S. person to be authorized for up to 90 days is reasonable in light of the purpose being pursued.
