Federal Judge Rules Backdoor FISA Searches by US Government Are Unconstitutional

January 23, 2025 TruthUSA

Law enforcement conducted searches on a U.S.-based individual who subsequently admitted guilt for attempting to support a terrorist organization.

A federal judge has determined that the federal government’s approach to examining information collected incidentally on U.S.-based individuals contravenes the Fourth Amendment of the U.S. Constitution.

“To condone this practice would turn Section 702 into exactly what the Defendant has characterized it as—a mechanism for law enforcement to execute ‘backdoor searches’ that evade the Fourth Amendment,” stated U.S. District Judge LaShann Dearcy Hall in her ruling, published on January 21.

Officials procured information regarding the defendant, Agron Hasbajrami, a legal permanent resident who was arrested in 2011 and charged with supplying material support to a terrorist group. This information was obtained under the Foreign Intelligence Surveillance Act (FISA), which permits authorities to conduct surveillance on individuals.

Following Hasbajrami’s guilty plea, officials revealed that some evidence presented in his case stemmed from information gathered without a warrant under a FISA provision known as Section 207. This section allows surveillance of non-U.S. persons believed to be located outside the United States.

Authorities had collected certain evidence on Hasbajrami while targeting non-Americans suspected to be abroad, mistakenly assuming at one point that he was a non-U.S. person.

Hasbajrami attempted to suppress this evidence. After his motion was rejected, he pleaded guilty, conditioned on his right to appeal the denial.

In a 2019 decision, a federal appeals court largely held that the denial was valid, determining that the government’s incidental collection of information on Hasbajrami during lawful surveillance was permissible. The court also sent back to the district court the question of whether the government’s so-called back door searches of the Section 702 database violated constitutional principles.

Hall, in her latest ruling, concluded that they indeed did. While the original collection of the evidence was legal, she asserted, that does not grant blanket permission for the subsequent database searches.

“In other words, merely acquiring the defendant’s communications legally under Section 702 does not, by itself, authorize the government to subsequently query the retained information,” Hall stated.

“To conclude otherwise would effectively enable law enforcement to build a repository of communications under Section 702—including those from U.S. persons—that could be searched at will without restrictions. Such a stance undermines the intention of the warrant requirement, which is ‘to place a ‘neutral and detached magistrate’ between the citizen and ‘the officer engaged in the often competitive enterprise of ferreting out crime,’” Hall added.

The judge dismissed the remaining aspect of Hasbajrami’s motion, which sought access to the evidence compiled by the government.

A spokesperson from the U.S. Department of Justice declined to make a statement.

Hasbajrami’s attorney did not respond to a request for comment.

Advocates for government oversight welcomed the ruling.

“This marks a significant constitutional ruling concerning one of the most misused provisions of FISA,” noted Patrick Toomey, deputy director of the American Civil Liberties Union’s National Security Project, in a statement.

“In light of this ruling, we urge Congress to fulfill its duty to safeguard civil rights and liberties by not renewing Section 702 without essential reforms, including a formal warrant requirement for querying data concerning U.S. persons and enhanced transparency,” added Andrew Crocker and Matthew Guariglia from the Electronic Frontier Foundation, in a statement.

John Ratcliffe, President Donald Trump’s nominee for CIA director, expressed during his recent confirmation hearing that Section 702 is an “indispensable tool for national security” and opposed the imposition of warrants for database queries.

Former Rep. Tulsi Gabbard from Hawaii, who was appointed by Trump as his national security adviser, has stated that she now supports Section 702.

Congress has repeatedly reauthorized Section 702, most recently in 2024.

Section 702 is scheduled to expire on April 15, 2026.

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