## Facts

- Federal prosecutors charged Steven J. Rosen and Keith Weissman, lobbyists for the American Israel Public Affairs Committee (AIPAC), with conspiracy to communicate national defense information.
- The government alleged that Lawrence Franklin, a Department of Defense analyst with access to classified information, disclosed national defense information to Rosen and Weissman.
- The government further alleged that Rosen and Weissman communicated the information to unauthorized persons, including members of the media and foreign officials.
- During the investigation, the government obtained Foreign Intelligence Surveillance Act (FISA) surveillance and search orders from the Foreign Intelligence Surveillance Court (FISC) targeting the defendants.
- The FISA applications, orders, and related materials were classified, and the Attorney General invoked FISA procedures requiring judicial review of those materials without disclosure based on national security concerns.

## Issues

1. Whether the defendants were entitled to disclosure of FISA applications, orders, or related materials, rather than limiting review to in camera, ex parte judicial inspection.
2. Whether the FISC lacked probable cause to find the defendants were “agents of a foreign power,” requiring suppression of FISA-derived evidence.
3. Whether alleged violations of FISA minimization procedures required suppression of FISA-derived evidence.

## Decision

- The court reviewed the FISA materials in camera and ex parte and conducted de novo review of legality.
- The court denied disclosure, finding disclosure was not necessary to decide the legality of the surveillance and searches.
- The court found ample probable cause supported the FISC’s determination that the defendants were agents of a foreign power, independent of protected lobbying activity.
- The court rejected minimization challenges and denied suppression because the surveillance was lawfully authorized and conducted.

## Legal Principles

- Under FISA, district courts ordinarily review FISA materials in camera and ex parte when the Attorney General submits a national security affidavit; disclosure to the defense is permitted only if necessary to make an accurate legality determination.
- District court review of FISA materials addressing legality, including probable cause and statutory compliance, may be conducted de novo even after FISC approval.
- A FISA probable-cause finding that a target is an “agent of a foreign power” may rest on evidence beyond First Amendment-protected advocacy and lobbying.
- Suppression under FISA is limited and generally available only when the surveillance was not lawfully authorized or not lawfully conducted; alleged minimization deficiencies warrant suppression only if they meet that standard.

## Conclusion

The court held that FISA’s in camera, ex parte review procedure was sufficient on this record, found the FISC had probable cause to target the defendants as agents of a foreign power based on evidence beyond protected lobbying, determined minimization requirements were satisfied, and therefore denied both disclosure of the classified FISA materials and suppression of the resulting evidence.


United States v. Rosen, 447 F. Supp. 2d 538 (E.D. Va. 2006)