## Facts

- The FBI obtained a Foreign Intelligence Surveillance Act (FISA) order authorizing electronic surveillance of Zein Hassan Isa’s residence.
- During the surveillance, agents recorded the commission of a murder and related telephone conversations occurring before and after the killing.
- Missouri charged Isa and his wife with first-degree murder of their sixteen-year-old daughter.
- The federal recordings were provided to Missouri for use as evidence in the state murder prosecution.
- Isa moved in federal district court to suppress the recordings, arguing (1) the FISA order lacked probable cause, (2) the surveillance was conducted unlawfully (including alleged noncompliance with statutory procedures), and (3) the district court’s ex parte, in camera review of FISA materials violated the Sixth Amendment Confrontation Clause.
- The district court reviewed the FISA materials ex parte and in camera under 50 U.S.C. § 1806(f), found the surveillance lawful, and denied suppression.

## Issues

1. Whether the FISA order was supported by probable cause that Isa was a foreign power or an agent of a foreign power and that the monitored location was being used by such a target.
2. Whether the surveillance was lawfully conducted in compliance with FISA, including required minimization and other statutory limits.
3. Whether ex parte, in camera judicial review of FISA application materials under 50 U.S.C. § 1806(f) violates the Sixth Amendment right to confrontation.

## Decision

- The Eighth Circuit affirmed the denial of Isa’s motion to suppress.
- The court held the FISA surveillance was lawfully authorized and conducted, including satisfaction of FISA’s probable-cause requirements.
- The court held the district court properly used § 1806(f)’s ex parte, in camera review procedure to assess legality without disclosure to the defense.
- The court held that the ex parte, in camera procedure did not violate the Sixth Amendment Confrontation Clause.

## Legal Principles

- Under FISA, a surveillance order requires probable cause to believe the target is a foreign power or an agent of a foreign power, and that the facility or place to be monitored is being used or is about to be used by such a target.
- When an “aggrieved person” challenges the legality of FISA surveillance and the government asserts national security harm, 50 U.S.C. § 1806(f) directs courts to review relevant materials ex parte and in camera to determine whether the surveillance was lawfully authorized and conducted, unless disclosure is necessary for an accurate legality determination.
- The Confrontation Clause protects the right to confront witnesses offering evidence against a defendant at trial; it does not require disclosure of classified FISA application materials reviewed by a judge solely to decide the legality of surveillance.

## Conclusion

The Eighth Circuit upheld the use of FISA-obtained recordings in a related state murder prosecution, ruling that the surveillance satisfied FISA’s authorization and execution requirements and that § 1806(f) permits ex parte, in camera review of sensitive FISA materials without violating the Sixth Amendment.


United States v. Isa, 923 F.2d 1300 (8th Cir. 1991)