MEMORANDUM OF DECISION
In Mаrch 2007, Hassan Abu-jihaad was indicted in the District of Connecticut and charged in two counts with providing material support to terrorists in violation of 18 U.S.C. § 2339A and 18 U.S.C. § 2, and with communicating national defense information to persons not entitled to receive it in violation, of 18 U.S.C. § 793(d). See Indictment [doc. # 6]. Each of these charges stems from the Government’s assertion that Mr. Abu-jihaad transmitted a Battle Group document to Babar Ahmad and Azzam Publications, who are also the subjects of criminal charges in this District. See Indictment [doc. # 8], No. 3:04cr301 (MRK). Trial of the charges against Mr. Abu-jihaad is currently scheduled to begin on February 25, 2008.
On April 10, 2007, the Government filed a notice [doc. # 34] pursuant to 50 U.S.C. § 1806(c), informing Mr. Abu-jihaad of its intent to use or otherwise disclose evidence obtained or derived from electronic surveillance (collectively, “FISA-derived evidence”) conducted under the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. §§ 1801 et seq. (“FISA”). The Government later filed аn amendment [doc. # 117] to its notice, in which the Government stated its intent to use FISA-derived evidence at pretrial hearings, trial, and other related proceedings.
Mr. Abu-jihaad has now filed a Motion to Suppress [doe. # 124] all FISA-derived evidence, and a Motion for Disclosure of FISA Applications and Orders and for Adversary Hearing on Motion to Suppress [doc. ## 142, 143]. In his suppression motion, Mr. Abu-jihaad argues that: (1) FISA is unconstitutional on its face because it violates the Fourth Amendment; (2) the FISA-derived evidence in this ease was unlawfully acquired in violation of the Fourth Amendment; (3) the FISA-derived evidence in this case was acquired in violation of the statutory requirements of FISA; and (4) the Government may have made material misstatements in the FISA applications and affidavits, thereby entitling him to a hearing under
Franks v. Delaware,
The Government opposes Mr. Abu-ji-haad’s motions and pursuant to FISA, asks the Court: (1) to conduct an in camera and ex parte review of the FISA applications, affidavits, and materials as well as the FISC orders; (2) to find that FISA, as amended, is constitutional; (3) to find that the FISA collection in this case was lawfully authorized and conducted; and (4) to order that none of the classified documents, nor any classified information, be disclosed to the defense and that such materials remain under seal. In furtherance of the Government’s requests, it has submitted both a classified and redacted, unclassified Memorandum in Opposition to the Defendant’s Motion for Suppression of FISA Evidence and Motion for Disclosure of FISA Applications, Orders and Related Materials and an Adversary Hearing [doc. ## 160, 161] (“Government’s Mem.”); an unclassified Declaration and Claim of Privilege of the Attorney General of the United States [doc. # 158]; a classified Declaration of Joseph Billy, Jr., Assistant Director of the Counterterrorism Division of the Federal Bureau of Investigation; a classified declaration of the FBI regarding applicаble minimization procedures; certified copies of the classified FISA applications, orders, and related materials (“FISA materials”); and an unclassified proposed order [doc. # 162], The classified documents were filed through the Court Security Officer, as part of a sealed exhibit for the Court’s in camera and ex parte review under FISA. The unclassified supporting materials were filed on the public record.
The Court is once again grateful to counsel for their excellent submissions. Having carefully reviewed the FISA materials in camera and ex parte and considered the Fourth Amendment, relevant statutes, and case law, the Court DENIES the Motion to Suppress [doc. # 124], the Motion for Disclosure of FISA Applications and Orders [doc. # 142], and the Motion for an Adversary Hearing on Motion to Suppress [doc. # 143]. As set forth below, the Court concludes that: FISA does not on its face violate the Fourth Amendment; the collection of the FISA-derived evidence in this casе did not violate the Fourth Amendment or FISA; Mr. Abu-jihaad is not entitled to review the FISA materials; and there were no misrepresentations or misstatements in the Government’s applications or affidavits that would warrant the Court holding a Franks hearing.
I.
FISA sets forth a statutory procedure under which the Executive Branch may collect foreign intelligence information within the United States. Several courts, including the Second Circuit and the Foreign Intelligence Surveillance Court of Review (the “FISA Review Court”), have discussed in detail the history of FISA and its procedures.
See, e.g., In re Sealed Case,
The term “foreign intelligence information” includes information that “relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against ... actual or potential attack or other grave hostile acts of a fоreign power or an agent of a foreign
The definition of “foreign power” is not limited to a foreign government, but also includes, among other things, a “group engaged in international terrorism or activities in preparation therefor.” Id. §§ 1801(a), 1821(1). An “agent of a foreign power” includes any person who “knowingly engages in sabotage or international terrorism, or activities in preparation therefor, for or on behalf of a foreign power,” and anyone who knowingly aids, abets, or сonspires with any person to engage in the activities described in the Act. Id. §§ 1801(b)(2), 1821(1). “International terrorism” includes activities that “involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States,” appear intended to intimidate or coerce a civilian population or a government or affect a government by assassination or kidnaping, and occur totally outside the United States or transcend national boundaries. Id. §§ 1801(c), 1821(1). 1
Except for emergency situations in which the Attorney General may authorize electronic surveillance or physical search for up to 72 hours without a court order, FISA requires the Government to obtain an order from the FISC (composed of U.S. District Judges appointed by the Chief Justice of the United States) before engaging in electronic surveillance or physical searches to collect foreign intеlligence information. Id. §§ 1804(a), 1805(f), 1823(a), 1824(e). 2 The statute also requires substantial review by, and certifications from, the Attorney General or another high-ranking Executive Branch official with national security or defense responsibilities. Id. §§ 1804(a)(7) (electronic surveillance), 1823(a)(7) (physical search). 3
Under FISA, elеctronic surveillance or physical searches targeting a United States person may be approved for up to 90 days, though extensions may be granted if the Government submits another application to the FISC. Id. §§ 1805(e)(1), (2), 1824(d)(1), (2). FISA requires the FISC order authorizing surveillance or searches to specify: the identity (or a description of) the specific target of the collection; the nature and location of each facility or place at which the electronic surveillance will be directed or of each of the premises or property to be searched; the type of information sought to be acquired and the type of communications or activities to be subjected to the electronic surveillance, or the type of information, material, or property to be seized, altered, or reproduced through the physical search; the means by which еlectronic surveillance will be effected and whether physical entry will be used to effect the surveillance, or a statement of the manner in which the physical search will be conducted; the period of time during which the electronic surveillance or physical search is approved; and the applicable minimization procedures. Id. §§ 1805(c)(l)(A)-(F), 1824(c)(l)(A)-(E). 4
FISA expressly authorizes the use of information obtained or derived from any FISC-authorized electronic surveillance or physical search in a criminal prosecution, so long as the use comports with FISA’s requirements, including the requirement for advance authorization by the Attorney General.
Id.
§§ 1806(b), 1825(c). Eviden-tiary use of FISA-derived evidence is permitted in proceedings before federal, state, and local courts, provided that proper notice is given to the Court and each “aggrieved person” against whom the information is to bе used.
Id.
§§ 1806(c)-(d), 1825(d)-(e). Upon receiving notice, the aggrieved person may then move to suppress use of FISA-derived evidence on grounds
II.
Mr. Abu-jihaad first argues that FISA is unconstitutional on its face because it violates the Fourth Amendment. In support, he relies heavily upon a recent decision in
Mayfield v. United States,
The Second Circuit has already traveled down this path in
Duggan,
where the court upheld the constitutionality of FISA. There, Judge Amalya L. Kearse, writing for a unanimous court, noted that prior to enactment of FISA, virtually every court had concluded that the President had the inherent power, as an exception to the Fourth Amendment, to conduct warrant-less electronic surveillance to collect foreign intelligence information.
Duggan,
domestic security surveillance may involve different policy and practical considerations from the surveillance of ‘ordinary crime.’ The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on theprevention of unlawful activity or the enhancement of the Government’s preparedness for some possible future crisis or emergеncy. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.
Given those potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.
Keith,
“Against this background,”
Duggan
explained, Congress enacted FISA and “[i]n constructing this framework, Congress gave close scrutiny to departures from those Fourth Amendment dоctrines applicable in the criminal-investigation context in order to ensure that the procedures established in FISA are reasonable.... ”
Duggan,
The Court has described
Duggan
at length because one might have supposed that it would put to rest the question of FISA’s constitutionality — at least in the Second Circuit.
6
However, Mr. Abu-ji-haad points out that the Patriot Act amended FISA in 2001.
7
Before the Patriot Act, FISA required the high-ranking Executive Branch official to certify that “the purpose” of the surveillance was to
In October 2001, Congress amended FISA to change “the purpose” language of § 1804(a)(7) to “a significant purpose.” 8 According to Mr. Abu-jihaad (and May-field, for that matter) the changes effected by the Patriot Act mean that Duggan’s holding that FISA is constitutional is no longer good law. The Court disagrees for several reasons.
First, the Court does not believe that the “primary purpose” requirement was important to the
Duggan
court in upholding the constitutionality of FISA. In fact,
Duggan
never mentioned the “primary purpose” requirement in the portion of its decision considering the constitutionality of FISA, even though the court explicitly mentioned other requirements of FISA in determining that Congress had struck a constitutionally permissible balance in enacting FISA.
See Duggan,
Duggan
did not even advert to anything like a “primary purpose” requirement until later in its decision, in considering the Government’s compliance with FISA.
See id.
at 77. There, in recounting various provisions of FISA,
Duggan
stated: “The requirement that foreign intelligence information be the
primary objective
of the surveillance is plain not only from the language of § 1802(b) but also from the requirements in § 1804 as to what the application must contain.”
Id.
(emphasis added). The court went on immediately thereafter to state that “[o]nce this certification is made, however, it is, under FISA, subjected to only minimal scrutiny by the courts.”
Id.
Having reviewed the FISA submissions
in camera, Duggan
concluded that the FISA surveillance in that case was “instituted as a part of an investigation of international terrorism”; in short, the court held, the “purpose of the surveillance in this case, both initially and throughout, was to secure foreign intelligence information and was not, as the defendants assert, directed towards criminal investigation or the institution of a criminal prosecution.”
Id.
at 78 (quota
Congress recognized that in many cases the concerns of the government with respect to foreign intelligence will overlap those with respect to law enforcement. Thus, one Senate Report noted that
[intelligence and criminal law enforcement tend to merge in [the area of foreign counterintelligence investigations] ....
In sum, FISA authorizes surveillance for the purpose of obtaining foreign intelligence information ... and the fact that domestic law enforcement concerns may also have been implicated did not eliminate the government’s ability to obtain a valid FISA order.
Id. (citation omitted).
Based upon the foregoing statements in
Duggan,
the Court does not believe that the “primary purpose” requirement (assuming it was even adoptеd in
Duggan)
was integral to that court’s Fourth Amendment holding or that the Second Circuit would come out any differently after the Patriot Act amendments.
See Mubayyid,
Second, and in any event, contrary to
Mayfield,
the Court does not believe that the statutory change from “purpose” (even assuming that meant “primary purpose”) to “significant purpose” is of constitutional significance.
9
As the Supreme Court has repeatedly reminded us, the “touchstone of the Fourth Amendment is reasonableness.”
See, e.g., Samson v. California,
For one, even after the Patriot Act amendments, no surveillance or physical search can occur until a neutral and independent judicial officer has reviewed the Government’s filings and issued a court order approving the requested action.
See Duggan,
That the Government may now seek, and a FISC may approve, surveillance or physical searches when only “a significant purpose” — rather than the “primary purpose” — is collection of foreign intelligence information, does not alter the constitutional calculus. The focus of a FISA application and a FISC order remains on foreign intelligence gathering. Even as amended, “FISA is meant to take into account the differences between ordinary criminal investigations to gather evidence and foreign counterintelligence investigations to uncover and monitor clandestine activities.”
Sarkissian,
Finally, the fact that a foreign intelligence investigation may result in a criminal process and that the concerns of foreign intelligence gatherers and law enforcement may often overlap or merge, is not а reason to find FISA unconstitutional, as
Duggan
quite properly recognizes.
See Duggan,
Needless to say, the issues raised by Mr. Abu-jihaad are vitally important — not just for him, but for all of our citizens and the Nation as a whole. This Court’s conclusion that FISA, as amended, is constitutional will certainly not be the last word on these key issues. It is conceivable that the Second Circuit eventually will re-think its decision in Duggan in light of the Patriot Act amendments to FISA. However, until it does so, this Court will apply Duggan’s holding to FISA, even as amended by the Patriot Act.
III.
Before considering the legality of the FISA surveillance in this case, the Court must address Mr. Abu-jihaad’s twin requests to inspect the applications and supporting papers the Government submitted to the FISC (as well as the court orders authorizing the FISA surveillance)
A.
FISA provides that if “the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States” the district court “shall, notwithstanding any other law ... review in camera and ex parte the application, order, and such other materials relating to the surveillance [or physical search] as may be necessary to determine whether the surveillance [or physical search] of the aggrieved person was lawfully аuthorized and conducted.” 50 U.S.C. §§ 1806(f), 1825(g) (italics added). If the Attorney General files such an affidavit, the court “may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance [or physical search] only where such disclosure is necessary to make an accurate determination of the legality of the surveillance [or the physical search].” Id. §§ 1806(f), 1825(g) (emphasis added).
In this case, Attorney General Michael B. Mukasey filed the required affidavit, certifying to the Court that disclosure of the FISA submissions and orders in this case would harm the national security of the United States. See Declaration and Claim of Privilege of the Attorney General of the United States [doc. # 158]. Therefore, under FISA, disclosure is required only if necessary for an accurate determination of the legality of the surveillance.
Courts have uniformly held that
ex parte
and
in camera
inspections are the “rule” under FISA,
Duggan,
Courts have also uniformly held that such review procedures do not deprive a defendant of due process.
See, e.g., Dam-rah,
Court review of the FISA materials in this case is relatively straightforward and not complex.
See Taglianetti v. United States,
The Court assures Mr. Abu-jihaad and his counsel that the Court has conducted a careful, thorough, and independent review of each of the Government’s submissions and each FISC order, with the requirements of the Constitution, the statute, and
Duggan
fixed firmly in mind. The Court has read and re-read each submission and order. Having done so, the Court is satisfied that disclosure and an adversary hearing are not required in this case. The Court is able to make a determination of the legality of the surveillance on the basis of the materials submitted to the Court
ex parte
and
in camera. See, e.g., Saltar,
B.
Mr. Abu-jihaad also asserts that he is entitled to a Franks hearing because there may be misstatements in the Government’s submissions in support of the FISA surveillance. Since defense counsel has not had access to the Government’s submissions they — quite understandably— can only speculate about their contents. In particular, Mr. Abu-jihaad speculatеs that the FISA applications and supporting documents included, or were founded upon, information about the Battle Group document that the defense contends is misleading or false.
In
Duggan,
the Second Circuit stated that to be entitled to a
Franks
hearing in connection with a FISA surveillance, a defendant “would be required to make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the application and that the allegedly false statement was necessary to the FISA Judge’s approval of the application.”
Duggan,
Having reviewed the Government’s FISA submissions with care and being ever mindful of Mr. Abu-jihaad’s concerns regarding use (or rather, misuse) of the Battle Group document, the Court has little difficulty concluding that the
Franks
standard is not even remotely met in this case. The Court does not find any misstatements in the Government’s detailed submissions to the FISC, let alone the substantial preliminary showing of deliberate falsehood or reckless disregard of the
IV.
The Court is thus brought to Mr. Abu-jihaad’s final argument — that the surveillance in this case violated the Fourth Amendment and failed to comply with the statutory requirements of FISA. Here, too, defense counsel can only speculate about the basis for the Government’s request for FISA surveillance. That speculation centers on the defense contention that the Government’s submissions could not possibly have demonstrated any “ongoing connection” between Mr. Abu-jihaad, a United States citizen, and any “foreign power,” as defined in FISA. Therefore, the argument continues, the Government’s evident and principаl purpose in conducting the FISA surveillance in this case was not to gather “foreign intelligence information,” but rather to collect information to be used in connection with the criminal prosecution of Mr. Abu-jihaad regarding the Battle Group document. See Defendant’s Mem. at 11-13. Having reviewed the Government submissions and FISC orders at length, the Court rejects Mr. Abu-jihaad’s arguments and speculations as unfounded and further concludes that the FISA surveillance in this case complied with both the statute and the Fourth Amendment.
Duggan sets forth the standard that a reviewing court should apply in assessing a FISA application:
Once this certification [from a high-ranking Executive Branch official] is made, however, it is, under FISA, subjected to only minimal scrutiny by the courts. Congress deemed it a sufficient check in this regard to require the FISA Judge (1) to find probable cause to believe that the target of the requested surveillance is an agent of a foreign pоwer; (2) to find that the application is complete and in proper form; and (3) when the target is a United States person, to find that the certifications are not “clearly erroneous.” The FISA Judge, in reviewing the application, is not to second-guess the executive branch official’s certification that the objective of the surveillance is foreign intelligence information. Further, Congress intended that, when a person affected by a FISA surveillance challenges the FISA Court’s order, a reviewing court is to have no greater authority to second-guess the executive branch’s certifications than has the FISA Judge ....
Duggan,
Having reviewed those submissions and orders, the Court is satisfied that there was рrobable cause to believe that the target of the FISA surveillance in question was an agent of a foreign power, as defined in FISA, that the application and supporting papers were complete, thorough, and fully in accordance with FISA requirements, and that the certifications by the high-ranking Executive Branch officials were not clearly erroneous. In each
As a result, and substantially for the reasons set forth by the Government in the redacted portions of its memorandum, the Court has little difficulty concluding that the FISC had a proper basis for finding probable cause to believe that the target was an agent of a foreign power, the statutory requirements were fully satisfied, the Government’s cеrtifications were not clearly erroneous on the basis of the information provided in the certifications and other FISA materials, a significant purpose of the FISA surveillance and collection was to obtain foreign intelligence information, and proper minimization requirements were implemented.
See, e.g., Duggan,
y.
The Court DENIES Defendant’s Motion to Suppress [doc. # 124], Motion for Disclosure of FISA Applications and Orders [doc. # 142], and Motion for Adversary Hearing on Motion to Suppress [doe. # 143]. The Court concludes that FISA, as amended, 50 U.S.C. §§ 1801-1811, 1821-1829, is constitutional under the Fourth Amendment. Furthermore, having reviewed the Government’s submissions and the FISC orders in camera and ex parte, the Court further finds that the FISA surveillance and collection in this case were lawfully authorized and conducted, in accordance with the Fourth Amendment and FISA. Specifically, the Court finds that:
1. The President has authorized the Attorney General to approve applications for electronic surveillance and physical search to the Foreign Intelligence Surveillance Court (“FISC”). 50 U.S.C. §§ 1805(a)(1), 1824(a)(1).
2. Each application at issue was made by a Federal officer and approved by the Attorney General, as defined under FISA, 50 U.S.C. §§ 1801(g),1821(1). 50 U.S.C. §§ 1805(a)(2), 1824(a)(2).
3. Each application contained facts establishing probable cause to believe that, at the time the application was submitted to the FISC, the target of the FISA collection was an agent of a foreign power, as defined by 50 U.S.C. § 1801(b)(2)(E), and any United States person targeted was not considered to be an agent of a foreign power “solely upon the basis of activities рrotected by the first amendment to the Constitution of the United States.” 50 U.S.C. §§ 1805(a)(3)(A), 1824(3)(A).
4. Each application contained facts establishing probable cause to believe that, at the time the application was submitted to the FISC, each facility or place at which electronic surveillance was to be directed was being used or was about to be used by the targeted agent of a foreign power; each premises or property to be searched was owned by, used by, possessed by, or in transit to or from the target; and each premises or property to be searched contained foreign intelligence information. See 50 U.S.C. §§ 1805(a)(3)(B), 1823(a)(4)(B), 1824(a)(3)(B).
5. The minimization procedures included with each application and order of the FISC met the requirements of 50 U.S.C. § 1801(h). 50 U.S.C. §§ 1805(a)(4), 1824(a)(4). The Government appears to have complied in good faith with these minimization procedures in conducting the surveillance and collection at issue, and therefore, the surveillance and collection was lawfully conducted.
6. The applications contained all of the statements and certifications required by 50 U.S.C. §§ 1804 and 1823, and none of the certifications made pursuant to 50 U.S.C. §§ 1804(a)(7) and 1823(a)(7) was clearly erroneous on the basis of the facts contained within the certification and any other information furnished in the application pursuant to 50 U.S.C. §§ 1804(d) and 1823(c). 50 U.S.C. §§ 1805(a)(5), 1824(a)(5).
7.Each of the orders issued by the FISC satisfied the requirements of 50 U.S.C. §§ 1805(b) and 1824(b).
The Government shall maintain all FISA materials under seal so that they can be provided, if needed, to the Court of Appeals for its review.
IT IS SO ORDERED.
Notes
. FISA specifies that no United States person may be considered a foreign power or agent of a foreign power solely on the basis of activities protected by the First Amendment. 50 U.S.C. §§ 1805(a)(3)(A), 1824(a)(3)(A);
see generally United States v. Rosen,
. Among other things, the application to the FISC must contain a stаtement of: (1) the nature of the information sought through the electronic surveillance or the foreign intelligence sought through the physical search; (2) the type of communications or activities to be subjected to electronic surveillance; (3) the manner or means by which the electronic surveillance or physical search will be effected and a statement whether physical entry is required to effect the electronic surveillance; (4) the facts concerning and the action taken on all previous FISA applications involving any of the persons, facilities, places, premises, or property specified in the application; and (5) the proposed duration of the electronic surveillance. 50 U.S.C. §§ 1804(a), 1823(a).
.The high-ranking official must: certify that the official deems the information sought to be foreign intelligence information; certify that a significant purpose of the surveillance is to obtain foreign intelligence information; certify that such information cannot reasonably be obtained by normal investigative techniques; designate the type of foreign intelligence information being sought according to the categories described in FISA; and include a statement of the basis for the certification that (i) the information sought is the type of foreign intelligence information designated; and (ii) such information cannot reasonably be obtained by normal investigative techniques. 50 U.S.C. §§ 1804(a)(7), 1823(a)(7).
. FISA requires the Attorney General to adopt minimization procedures. 50 U.S.C. §§ 1801(h)(1), 1821 (4)(A). To fulfill that statutory duty, the Attorney General has adopted standard minimization procedures that apply to every FISA application, which were submitted to the Court for in camera review. Each FISC order at issue in this case approved the Attorney General’s minimization procedures.
. Given Mayfield’s factual findings about the primary purpose of the Government surveillance in that case, it is not at all clear why the Mayfield court held FISA unconstitutional- on its face.
. As the Government notes, every court to consider the constitutionality of FISA, with the exception of
Mayfield,
has found FISA to comport with the Fourth Amendment.
See, e.g., United States v. Damrah,
. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.L. No. 107-56, 115 Stat. 272 (2001).
. The Patriot Act also expressly approved of consultation and coordination between intelligence and law enforcement officials. Thus, the Patriot Act added a section allowing "Federal officers who conduct electronic surveillance to acquire foreign intelligence information” to "consult with Federal law enforcement officers to coordinate efforts to investigate or protect against” attack or other hostile acts. 50 U.S.C. § 1806(k)(l). Moreover, suсh consultation and coordination "shall not preclude” the Government's certification that a significant purpose of the surveillance is to obtain foreign intelligence information, or a court order approving the surveillance. Id. § 1806(k)(2).
The original Patriot Act had a "sunset” provision. However, in the USA Patriot Improvement and Reauthorization Act of 2005, Pub.L. No. 109-177, 120 Stat. 192 (2006), Congress made the significant purpose amendment permanent.
. The Court hereby adopts the construction of the phrase "significant purpose” set forth in
In re Sealed Case. See
. In
Mayfield,
the court noted that there were differences in the way in which Title III and FISA dealt with the issue of notice to the target of surveillance.
See Mayfield,
. Nor does the Court find that the requirements of either due process or
Brady v. Maryland,
. In view of the Court’s conclusions, it need not, and does not, reach the other arguments advanced by the Government, including whether the "good faith" exception to the exclusionary rule applies in this case.