FBI Tactics Criticized by Federal Court Ruling on Warrantless Spying in the U.S.

By Gene J. Koprowski

February 3, 2025

FBI Tactics Criticized by Federal Court Ruling on Warrantless Spying in the U.S.

2.3.2025

By Gene J. Koprowski

A federal judge in the Eastern District of New York last week released a redacted version of her order declaring that government spying on a New York City resident by a domestic intelligence agency, based on its review of a National Security Agency database, without a warrant, was unconstitutional.

Judge LaShann Moutique DeArcy Hall wrote that the defendant, Agron Hasbajrami, was arrested by federal agents on Sept. 6, 2011, as he tried to board a flight to Turkey at John F. Kennedy International Airport, in her memorandum and order for the case of United States v. Hasbajrami, 945 F.Jd 641, 645 (2d Cir.2019).

The government charged Hasbajrami with attempting to provide “material support to a terrorist organization,” claiming he intended to travel to Pakistan, where he wanted to join a known terrorist organization, receive training, and fight against U.S. forces and allies in Afghanistan and Pakistan.

During the proceedings, the government disclosed that it had collected the defendant’s electronic communications under the Foreign Intelligence Surveillance Act of 1978 (“FISA”), Pub. L. No. 95-511, 92 Stat. 1783 (1978), codified at 50 U.S.C. § 1801 et. seq., and that it would introduce FISA-derived evidence at trial.

Hasbajrami avoided trial when he pleaded guilty to attempting to provide material support to terrorists in violation of 18 U.S.C. § 2339A, and was sentenced to 180 months’ imprisonment.

After Hasbajrami “was already serving his sentence,” the government disclosed for the first time that some of the evidence it had previously disclosed from FISA surveillance was the “fruit of earlier information obtained without a warrant” pursuant to Section 702 of the FISA Amendments Act, 50 U.S.C. § 1881a et seq. (“Section 702”), her honor wrote.

“The law does not approve individual targeting decisions,” based on database searches, Judge DeArcy Hall wrote.

The FBI, for example, uses “next generation identification technology,” AI, to scour databases, both public and classified, to identify subjects, but the agency’s own servers have been hacked.

The judge did not, however, require the government to provide anything in addition to the summaries of its FISA searches that it already disclosed, nor provide any other relief requested by the defendant, and indicated the unconstitutional search of some of the information used to secure the guilty plea did not void the defendant’s conviction.

President Trump’s nominee to head the FBI, Kash Patel, called for “reform” of the FISA Act in his confirmation hearing last week.

 

 

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