Federal Court Rules FISA Section 702 “Back Door” Searches Unconstitutional
Sometimes when “secret law” is involved—and that is always the case with the Foreign Intelligence Surveillance Act (FISA)—it takes some time before the public learns how badly the government has violated someone’s constitutional rights via the FISA Section 702 program. U.S. v. Hasbajrami is a perfect example of the phenomenon. Although Judge LaShann DeArcy Hall of the Eastern District of New York issued her ruling against the Biden administration on December 2, 2024, the actual decision in the case was not released until late yesterday, January 21, 2025.
In brief, defendant Agron Hasbajrami was arrested on September 6, 2011, before boarding a flight to Turkey to, according to the federal prosecutors, “travel to the Federally Administered Tribal Area of Pakistan, where he expected to join a terrorist organization, receive training, and ultimately fight against U.S. forces and others in Afghanistan and Pakistan.”
Federal authorities used FISA Section 702 evidence to secure Hasbajrami’s conviction, but only after Hasbajrami had been in jail did the Justice Department disclose to the court—for the first time—that “some of the evidence it had previously disclosed from FISA surveillance was itself the fruit of earlier information obtained without a warrant pursuant to Section 702 of the FISA Amendments Act, 50 U.S.C. § 188 1a et seq. (‘Section 702’).”
In this case, the 702 information in question on Hasbajrami was obtained by FBI agents querying the vast FISA Section 702 database, which Democratic and Republican administrations have argued does not require a warrant.
The Second Circuit Court of Appeals denied Hasbarjami’s blanket evidence suppression motion for the exclusion of all FISA Section 702 collection in his case but did not weigh in on whether the warrantless Section 702 database queries were constitutional, instead remanding the case back to Judge Hall for a review of that question. Hall subsequently agreed with Hasbarjami’s argument that “inadvertent acquisition of Defendant’s communications does not automatically permit the government to search among the acquired communications without a warrant.”
If you read Hall’s full opinion, you’ll also see her call out the Justice Department for its “sparse record” of providing data in this case. That’s a polite way of saying that Justice Department and FBI officials were substantially less than candid about the facts of the case. You’ll also see entire pages of the decision are redacted, a reminder that key facts about the case remain hidden from the public.
In commenting on the case, the ACLU’s Patrick Toomey noted, “While the new opinion holds that the FBI’s Section 702 queries violated the Fourth Amendment, the court ultimately denied the defendant’s motion to suppress the resulting evidence on separate grounds.”
Hasbarjami will thus remain behind bars. But his success in this case in getting Judge Hall to rule that FISA Section 702 warrantless “back door” searches violate the Fourth Amendment has reopened the issue.
Will the new Trump administration appeal the decision?
Attorney General nominee Pam Bondi testified under oath at her confirmation hearing that she supported the FISA Section 702 program, though the issue of warrantless “back door” searches did not come up as I recall. Office of Director of National Intelligence (ODNI) nominee Tulsi Gabbard has gone from FISA Section 702 opponent to supporter in record time. Assuming Gabbard gets a confirmation hearing, asking her about Hall’s ruling should be the first question posed to her.