Mohammed Zazi Requests Disclosure of FISA Evidence Used Against Him

Mohammed Zazi, father of Najibullah Zazi, remains on bond in Colorado where he is charged with lying to federal agents about conversations he had with Iman Ahmad Wais Afzali of Queens, NY. (Complaint here.)

The grand jury in Colorado hasn't met yet, and until they do, Zazi is entitled to a preliminary hearing. It was set for October 9, but on September 21, the Government filed a notice that it intends to use information against Zazi that was obtained by FISA wiretaps and electronic and physical searches.

Zazi's federal public defender, Ed Harris, filed a motion Friday seeking disclosure of major categories of information. If the matters are sensitive to national security, he is requesting the Judge review them. He's also asking that the preliminary hearing set for Oct. 9 be transferred from the Magistrate Judge to the District Court Judge. [More...]

The Government's notice, filed September 21, stated:

The United States intends to offer into evidence, or otherwise use or disclose in any proceedings in the above-captioned matter, information obtained and derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829.

Here are some selected parts of his motion (available via PACER):

On how the FISA information relates to the false statement case:

First, the proof of the alleged falsity of the statement charged in the Complaint lies in telephone call(s) obtained, on information and belief, via a FISA wiretap. Second, proof of the materiality of the statement to the investigation referenced in the Complaint is dependant upon, on information and belief, information obtained through FISA wiretaps and searches.


FISA prescribes a specific sequence of events which are governed by statute – not the Federal Rules of Criminal Procedure. 50 U.S.C. § 1806 and 50 U.S.C. § 1825. These events are triggered when, as here, either the government gives notice of its intent to use “FISA evidence,” or an aggrieved person, like Mr. Zazi, moves to suppress that evidence.

FISA dictates that before the government can use “FISA evidence” in a proceeding, it must give notice. 50 U.S.C. § 1806© and 50 U.S.C. § 1825(d). Once such notice is given, an aggrieved person, such as Mr. Zazi, may move to suppress such evidence “before the trial, hearing or other proceeding” in which the evidence will be used. 50 U.S.C. § 1806(e) and § 1825(f). If the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm national security, the court must conduct an in camera review and determination concerning the evidence and any suppression issues. 50 U.S.C. §§ 1806(f) and 1825(g).

The court must determine both the lawfulness of the evidence acquisition and the motion to suppress. Pursuant to §§ 1806(g) and 1825(h), the outcome of the court’s determination may require suppression of the evidence. Further, the court’s determination is a final order as a matter of law.

At an earlier hearing, the Court ruled:

“ The government must provide, no later than 10/5/09, notice to the court and to defense counsel, indicating the extent of information that they obtained under the Foreign Intelligence Surveillance Act. Preliminary hearing set for 10/9/2009 01:30 PM in Courtroom A 201 before Magistrate Judge Craig B. Shaffer. Defendant is remanded, to be released after processing.” Id.

Harris responds:

Counsel appreciates the information provided pursuant to the Court’s Order. However, he seeks disclosure not just of the “extent” of FISA information, but also the substance of the FISA evidence. Specifically, this court should order disclosure not only of all fruits of FISA surveillance and searches, such as recordings of surveillance and phone wiretaps, transcripts, and summaries of intercepted calls, but it should also order disclosure of papers submitted by the government applying for 5 orders under FISA and all court orders pursuant to the Foreign Intelligence Surveillance Act. In fact, FISA permits disclosure of the government’s application papers and Foreign Intelligence Surveillance Court (“FISC”) orders where, as here, it is “necessary to make an accurate determination of the legality of the [surveillance or search].” 50 U.S.C. §§ 1806(f) and 1825(g).

In short, the government should be ordered to produce in advance of any hearing, (a) all authorizations, orders, disclosure statements, and other documents and items necessary to assess the validity of FISA activity, and (b) a detailed recitation of FISA evidence obtained in this matter.

Harris is also challenging the Magistrate Judge's ability to hold the hearing. He wants the case transferred to the District Court judge at the earliest opportunity:

This Court’s Local Rules simply do not permit a Magistrate Judge to make the necessary determinations concerning the use of FISA evidence at a preliminary hearing. Magistrate Judges cannot issue final orders on foreign intelligence matters “binding on all courts of the United States” as contemplated by FISA. See §§ 1806(g)and 1825(i). Nor, under existing Local Rules, can they hear and determine motions to suppress. Given the need for a timely determination of the FISA issues, this matter must be transferred to a District Judge.

As to why he is filing the motion now:

As for the timing of this motion, it is filed now for two reasons – first, to prevent any contention or claim which may be asserted in the future with respect to trial or other proceedings in this matter that Mr. Zazi waived his statutory rights, and, second, because the applicable statutes seem to require that such motion be filed at this time.

Here are a few of the motion's many grounds for suppression:

f. Information acquired by FISA means was disclosed to New York police and local officials without a simultaneous statement that information may be used in a criminal proceeding only with the advance authorization of the Attorney General – which information led directly to events on which the false statement claim is based herein; and

g. The FISC application papers fail to demonstrate that a “significant purpose” of the searches and surveillance was to obtain “foreign intelligence information;”

h. The FISC application papers fail to demonstrate probable cause to believe that Mr. Zazi or any other target of interceptions was a “foreign power” or an “agent of a foreign power;”

i. The FISC application papers fail to demonstrate probable cause to believe that any electronic information concerning or modes of electronic transmission used by Mr. Zazi or any target of intercepted calls were owned, used or possessed by a “foreign power” or an “agent of a foreign power;”

j. The FISC application papers fail to demonstrate probable cause to believe that anything to which Mr. Zazi or any target of intercepted calls had a privacy interest and was subjected to electronic surveillance was being used or was about to be used by a “foreign power” or an “agent of a foreign power;

The last allegation is:

The FISC application papers contain false statements, recklessly made, in violation of Franks v, Delaware, 438 U.S. 154 (1978).

In a footnote, Harris writes:

Not having had the chance to review the FISA applications, Mr. Zazi is hampered in any effort to show a Franks violation. This inherent secrecy surrounding the FISA process should not innoculate the government from Franks concerns.

Mr. Zazi should not be penalized by denial of a Franks hearing because he lacks access to facts that are solely in the government’s control. Further, even absent a more particularized showing, counsel asks the Court to note the government’s track record of submitting FISA applications with intentionally or recklessly false statements or materials omissions.

Indeed, in at least seventy-five instances, it has confessed error relating to “misstatements and omissions of material facts” that it had made in its FISA applications. ....Thus, although Mr. Zazi does not know whether any of the FISA applications in this case are among those that the DOJ has identified as containing false statements, there is no assurance that they are not.

Harris further explains how having to file the motion without seeing the evidence puts Zazi at a disadvantage:

Of course, with respect to suppression issues, counsel is at a severe disadvantage moving so early to suppress evidence. He still does not know exactly what the evidence is and must rely upon the government’s summary of the evidence

For example, although he knows that the government refers to at least one intercepted telephone call, he does not know what language that intercepted telephone call was in, the number of calls intercepted, the length of the entire conversations, or whether transcripts exist. Likewise, he does not yet know the nature of physical searches conducted under FISA authority, or many other important details. Yet, given the statute’s express terms, he must move now or risk losing that right.

Bottom Line: Zazi is asking Harris asks for (1) full disclosure of FISA evidence (2) transferring the case from the Magistrate Judge to the District Court Judge before the preliminary hearing and (3) the suppress of evidence obtained under FISA.

If the grand jury returns the indictment against Zazi before the preliminary hearing, there will be no prelim and a district court judge would then be assigned automatically, and the Magistrate Court case would be terminated.

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