United States v. Nidal Hasan , 535 F. App'x 378 ( 2013 )

Case: 12-50841 Document: 00512303328 Page: 1 Date Filed: 07/10/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2013
No. 12-50841 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
NIDAL M. HASAN,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
U.S.D.C. No. 6:12-CV-195
Before OWEN and HAYNES, Circuit Judges, and LEMELLE, District Judge.*
PER CURIAM:**
Defendant-Appellant Nidal Hasan appeals from the district court’s denial
of his motion to suppress or disclose evidence obtained through the Foreign
Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801, et seq., which may be
relevant to his upcoming court martial trial on numerous counts of murder and
attempted murder at Fort Hood in Texas. We AFFIRM.
*
District Judge of the Eastern District of Louisiana, sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-50841 Document: 00512303328 Page: 2 Date Filed: 07/10/2013
No. 12-50841
As part of the court martial proceeding, the Government gave notice that
it “intends to enter into evidence or otherwise use or disclose . . . information
obtained or derived from electronic surveillance conducted pursuant to [FISA].”
50 U.S.C. § 1806(c). Hasan then moved for that evidence to be either disclosed
to him or suppressed. See id. § 1806(e). The military judge subsequently
transferred consideration of Hasan’s motion to the United States District Court
for the Western District of Texas, as permitted under FISA. See id. § 1806(f).
The Attorney General certified that disclosure and an adversarial hearing here
could harm national security, and the Government invoked FISA’s in camera,
ex parte review procedures. See id. The district court granted the request,
reviewed the challenged materials in camera, and denied Hasan’s motion.
We first conclude that we have jurisdiction to consider Hasan’s appeal.
FISA specifically bestows jurisdiction on the federal district courts to consider
the matters at issue here, which necessarily encompasses appropriate appellate
proceedings. See id. Furthermore, we may exercise jurisdiction under the
collateral order doctrine when, as here, the district court’s FISA ruling would
otherwise be effectively unreviewable.1 See, e.g., United States v. Hamide, 914
F.2d 1147, 1152 (9th Cir. 1990) (collecting cases). Because this court cannot
exercise appellate jurisdiction over Hasan’s court martial, it has jurisdiction to
review the propriety of the district court’s rulings here. See United States v. Ott,
827 F.2d 473, 475-76 (9th Cir. 1987) (exercising jurisdiction over FISA appeal
originating from court martial proceedings).
Turning to the merits, Hasan’s briefing does not clearly challenge the
district court’s evidentiary or procedural rulings. Nor does he ask for an in
1
See generally Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (“This
decision appears to fall in that small class which finally determine claims of right separable
from, and collateral to, rights asserted in the action, too important to be denied review and too
independent of the cause itself to require that appellate consideration be deferred until the
whole case is adjudicated.”).
2
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No. 12-50841
camera examination of the FISA materials reviewed below or a detailed analysis
of any specific district court ruling. To the extent he addresses some of the
evidentiary and procedural objections he raised in the district court, it is in the
context of complaining that FISA prevents him from making more specific
objections.
Hasan’s brief instead raises one overarching due-process objection against
the FISA framework. See United States v. Damrah, 412 F.3d 618, 624 (6th Cir.
2005) (“[Appellant] does not argue that the district court failed to follow the
statutorily prescribed procedures applicable when a district court reviews the
‘legality of the [FISA] surveillance.’ See [50 U.S.C. § 1806(f)]. Instead, he
asserts that the procedures themselves violated his constitutional rights.”). He
argues that “a flawed, draconian procedure [is] in place to litigate [his] access to
[the FISA-obtained] information” and that “[w]ithout access to this information,
[he will be] denied due process.” Accordingly, we conclude that the only issue
properly raised on appeal is a generalized due-process objection against FISA.
That argument is foreclosed by circuit precedent. This court explicitly
held—in a case not cited by Hasan—that the FISA provisions at issue comport
with due process. See United States v. El-Mezain, 664 F.3d 467, 567-68 (5th Cir.
2011), cert. denied, 133 S. Ct. 525 (2012). Indeed, every court of appeals to
consider a facial constitutional challenge to FISA—whether for due-process or
Fourth Amendment purposes—has upheld the statute. See id. at 567 (citing
cases from the D.C., Sixth, Eighth, and Ninth Circuits); United States v. Abu-
Jihaad, 630 F.3d 102, 120 (2d Cir. 2010), cert. denied, 131 S. Ct. 3062 (2011)
(citing cases from the First, Fourth, Sixth, Seventh, and Ninth Circuits, as well
as numerous district court authorities).
The D.C. Circuit, moreover, long ago rejected the general argument Hasan
makes here in a case in which now-Justice Scalia sat:
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We appreciate the difficulties of appellants’ counsel in this case.
They must argue that the determination of legality is so complex
that an adversary hearing with full access to relevant materials is
necessary. But without access to the relevant materials their claim
of complexity can be given no concreteness. It is pure assertion.
Congress was also aware of these difficulties. But it chose to
resolve them through means other than mandatory disclosure. In
FISA Congress has made a thoroughly reasonable attempt to
balance the competing concerns of individual privacy and foreign
intelligence. As noted, oversight of electronic surveillance is
provided by all three branches of government. Appellants are
understandably reluctant to be excluded from the process whereby
the legality of a surveillance by which they were incidentally
affected is judged. But it cannot be said that this exclusion rises to
the level of a constitutional violation.
United States v. Belfield, 692 F.2d 141, 148 (D.C. Cir. 1982).
El-Mezain forecloses Hasan’s attack on FISA.2
AFFIRMED.
2
The El-Mezain court also foreclosed Hasan’s suggestion that the district court should
authorize disclosure to any member of his legal team who possesses an appropriate security
clearance. See 664 F.3d at 568 (citing Ott, 827 F.2d at 477).
4