1978) (rejecting plaintiffs’ argument that counsel should have been permitted to participate in the in camera proceedings below). Government Defendants’ Opposition to Plaintiffs’ Motion Pursuant to 50 U.S.C. §1806(f) to Discover or Obtain Materials Related to Electronic Surveillance Al-Haramain v. Bush (07-cv-109-VRW) (MDL 06-cv-1791-VRW) -23- “need to know” classified information that might be involved in the case,16/ and courts in similar circumstances have rejected the kind of request for access to classified information that the plaintiffs now make.17/ The Court can and should avoid the inherent risks of disclosure and serious constitutional questions that would be raised in any Section 1806(f) proceeding by finding, as it should, that the public evidence on which plaintiffs seek to rely does not establish their standing under Article 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Government Defendants’ Opposition to Plaintiffs’ Motion Pursuant to 50 U.S.C. §1806(f) to Discover or Obtain Materials Related to Electronic Surveillance Al-Haramain v. Bush (07-cv-109-VRW) (MDL 06-cv-1791-VRW) -24- III. And to the extent the Court concludes that the case should proceed under Section 1806(f), the appropriate course would be to certify the matter for further review to avoid any potential for an improper disclosure of the privileged information and resulting harm to national security. See Defs.

30 DATED: February15, 2013 Respectfully submitted, KAREN L. LEOFFLER United States Attorney ~2~;:'£) Deorah Curtis Trial Attorney Counterespionage Section National Security Division U.S. Department of Justice Attorneys for Plaintiff UNITED STATES OF AMERICA 30 A district court order granting motions or requests under 50 U.S.C. § 1806(g), a decision that electronic surveillance was not lawfully authorized or conducted, and an order requiring the disclosure ofFISA materials is a final order for purposes of appeal. 50 U.S.C. § 1806(h). In the unlikely event that the Court concludes that disclosure of any item within any of the FISA materials or suppression of any FISA-obtained or -derived information may be required, given the significant national security consequences that would result from such disclosure or suppression, the Government would expect to pursue an appeal.

United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005) (alterations in original) (quotation marks omitted). CIPA thus provides this Court with the mechanism to honor Mr. Muhtorov’s due process rights, as required by section 1806(g), without compromising the government’s interest in protecting classified information. If the government declines to declassify the requested materials or produce an adequate unclassified summary, it must provide security clearances to Mr. Muhtorov’s eligible counsel and disclose the materials under an appropriate protective order, as it has done in other prosecutions involving classified information.

Where disclosure is not necessary to make an accurate determination of the legality of the surveillance, FISA prohibits disclosure "except to the extent that due process requires discovery or disclosure." 50 U.S.C. § 1806(g). The due process requirement embraced by FISA is coterminous with the Brady standard.

As noted at the outset, Hasbajrami may properly bring a motion for Section 702-related discovery only if his plea is set aside and he proceeds to motion practice and trial. Title 50 U.S.C. § 1806(e) allows a defendant to move to suppress any evidence obtained or derived from collection as to which he is an aggrieved person that will be used against him in a proceeding in the case. This remedy—setting aside the plea and allowing Hasbajrami to file a pre-trial suppression motion—would put Hasbajrami in the same position as if he had received the Supplemental Notification before entering his plea.13 Here, Hasbajrami does “not dispute that FISA provides for in camera, ex parte consideration of materials relevant to these motions if certain national security considerations exist” (Def.

Case 1:09-cr-10017-GAO Document 195 Filed 07/20/11 Page 44 of 45 42 be maintained under seal by the Court Security Officer or his/her designee; and (5) deny Mehanna’s FISA-related motions.140 Respectfully submitted, CARMEN M. ORTIZ United States Attorney By: __/s/ Aloke Chakravarty_________ ALOKE CHAKRAVARTY JEFFREY AUERHAHN Assistants United States Attorney __/s/ Jeffrey Groharing___________ JEFFREY GROHARING Trial Attorney Counterterrorism Section National Security Division U.S. Department of Justice Dated: July 20, 2011 140 A district court order requiring the disclosure of FISA materials is a final order for purposes of appeal. See 50 U.S.C. §§ 1806(h), 1825(h). In the unlikely event that the Court concludes that disclosure of any item within any of the FISA materials may be required, given the significant national security consequences that would result from such disclosure, the Government would expect to pursue an appeal.

(Exhibit No. 2 submitted herewith). These provisions concern the use of information gathered through electronic10 surveillance, physical searches, or pen register/trap and trace devices, see 50 U.S.C. §§ 1806(a), 1825(a), 1845(a). And the remedy provided against the United States is the “exclusive remedy” for such violations.

Finally, the fourth cabining wall of section 1806(f) is that the court is permitted to review materials relating to the surveillance in camera and ex parte only “as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. § 1806(f). The court must focus on the materials relevant to the objective: determining whether the surveillance was “lawfully authorized and conducted.”

See 50 U.S.C. § 1806(c), (e) & (f). Located within FISA’s provision governing the “[u]se of information” obtained from surveillance (50 U.S.C. § 1806), the procedures of subsection (f) are limited to three situations in which the potential use of surveillance-based information in legal proceedings 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Memorandum of the United States in Support of Motion to Dismiss or for Summary Judgment, MDL No. 06-1791-VRW 41 against an “aggrieved person” requires a judicial determination of whether the underlying surveillance was lawful: (1) the Government provides notice that it “intends to enter into evidence or otherwise use or disclose” surveillance-based information in judicial or administrative proceedings against an aggrieved person, 50 U.S.C. §§ 1806(c), (d); (2) the “aggrieved person” moves in such proceedings to suppress “evidence [or information] obtained or derived from an electronic surveillance,” id. §§ 1806(e), (f); or (3) the “aggrieved person” moves to “discover or obtain” “applications, orders, or other materials relating to electronic surveillance” or “evidence or information obtained or derived from electronic surveillance,” id.

Conclusion Plaintiffs’ motion for partial summary judgment should be granted. DATE: June 29, 2012 Respectfully submitted, s/ Richard R. Wiebe Richard R. Wiebe CINDY COHN LEE TIEN KURT OPSAHL JAMES S. TYRE MARK RUMOLD ELECTRONIC FRONTIER FOUNDATION RICHARD R. WIEBE LAW OFFICE OF RICHARD R. WIEBE THOMAS E. MOORE III THE MOORE LAW GROUP RACHAEL E. MENY PAULA L. BLIZZARD MICHAEL S. KWUN AUDREY WALTON-HADLOCK KEKER & VAN NEST LLP ARAM ANTARAMIAN LAW OFFICE OF ARAM ANTARAMIAN Attorneys for Plaintiffs Case3:08-cv-04373-JSW Document83 Filed07/02/12 Page27 of 29 Case No. 08-CV-4373-JSW A-1 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATUTORY APPENDIX 50 U.S.C. § 1806(f) - In camera and ex parte review by district court. Whenever a court or other authority is notified pursuant to subsection (c) or (d) of this section, or whenever a motion is made pursuant to subsection (e) of this section, or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this chapter, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of