On January 13, 2014 in United States v. Mohamed Osman Mohamud, Case No.3:10-CR-00475-KI (D. Or. filed Nov. 29, 2010), the defense filed a memorandum in support of its motion for full discovery of (i) the circumstances pertaining to the government’s belated disclosure of the warrantless surveillance conducted under Sec. 1881a and (ii) all surveillance in the case, including, but not limited to, Sec. 1881a surveillance, collection and accessing of telephone and Internet metadata, and surveillance conducted under any other programs revealed since the trial in the case. On February 3, 2014, the government filed a response, to which the defense replied on February 27.
On March 19, 2014, Judge Garr King denied the discovery motion. Although he acknowledged that “[d]efendant raises strong policy reasons” for “discard[ing] FISA ex parte procedures in favor of adversarial proceedings,” Judge King was “not persuaded that there is a need to go beyond that procedure outlined in FISA’s Section 1806 or that I have the authority to do so.” The judge ruled that he would “not order disclosure to the defense team of any materials relating to the surveillance unless, after reviewing the upcoming motion to suppress, I decide the disclosure ‘is necessary to make an accurate determination of the legality of the surveillance.’ Sec. 1806(f).” At 8.
After the defense filed an alternative motion on April 4, 2014 for suppression of the evidence or a new trial based on the government’s introduction of evidence obtained through unlawful electronic surveillance, and the parties briefed both the discovery and suppression issues, Judge King returned to the discovery issue and again ruled against the defense. In his Opinion and Order of June 24, 2014, 2014 WL 2866749, Judge King stated that the district court in Daoud was the only court to ever rule in favor of granting disclosure of FISA applications and materials to the defense, and that the Seventh Circuit had overruled that decision. In declining to follow the district court in Daoud, Judge King acknowledged that, “Obviously it would be helpful to the court to have defense counsel review the material prior to making arguments [about the legality of the surveillance in the case].” Employing semantics, however, the judge reasoned that, “Congress, however, did not put ‘helpful’ in the statute; it chose necessary. I interpret ‘necessary’ to be much closer to ‘essential’ than to helpful.” At 55. In going to state that, “I do not find disclosure to the defense is necessary for me to make an accurate determination of the legality of the surveillance” (id.), Judge King failed to acknowledge the fundamental premise of the adversary system: judges cannot known in advance when opposing parties’ input is necessary for accurately resolving disputes.
In accord with Seventh Circuit Judge Rovner’s concurrence in Daoud, Judge King acknowledged that the denial of disclosure makes it virtually for the defense to obtain a Franks hearing on whether misrepresentations by the government were the basis for a probable cause finding and subsequent issuance of a warrant. On Judge King’s view, however, the impossibility of obtaining a Franks hearing is simply a fact of life for FISA defendants. “Defendant’s position has not changed since the pretrial FISA suppression motion – he can only speculate about false statements or omissions. This is insufficient to qualify as a substantial preliminary showing [necessary for obtaining a Franks hearing]. I realize the difficult position the defense team is in, but the denial of a Franks hearing is commonplace in the FISA context and goes hand-in-hand with the ex parte judicial review process.” At 53.