Tuesday, August 28, 2018

Review of FISA Warrant Without Input from Defense Counsel OK

US v. Dhirane: Dhirane and his codefendant was charged with providing material assistance to a terrorist organization (al-Shabaab in Somalia). The evidence against them mostly came from conversations in private internet chat rooms and was obtained pursuant to a FISA warrant. They moved to suppress that evidence “even though they had not reviewed the warrant application and supporting materials due to the fact that they were classified.” Counsel, who had the required security clearance, requested to see the FISA materials. The district court denied the request and, after reviewing the materials in camera, denied the motion to suppress. Dhirane and his codefendant were convicted at trial and sentenced to 132 months and 144 months in prison, respectively.

On appeal, the Fourth Circuit affirmed the convictions and sentences.  The court rejected Dhirane’s argument that the statutory framework for challenging FISA warrants – which does not require adversarial proceedings – violated the Constitution (Dhirane did not directly challenge the district court’s rejection of the motion to suppress). While noting the importance of adversarial proceedings, the court concluded that “Congress did not run afoul of the Constitution when it reasoned that the additional benefit of an unconditional adversarial process was outweighed by the Nation’s interest in protecting itself from foreign threats.” The court also held that it was not necessary for the Government to prove that the people to whom Dhirane gave money were part of al-Shabaab, only that money was solicited, collected, and transmitted “to satisfy al-Shabaab’s express needs” to people “who were associated with al-Shabaab for the sole purpose of funding” the group’s illegal activities.

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