What happens if a criminal defendant challenges the validity of FISA surveillance?
Suppose a defendant moves to suppress evidence obtained via FISA surveillance. FISA provides that the district court must review in camera and ex parte the FISA application and other materials necessary to rule upon a defendant’s suppression motion “if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States.” 50 U.S.C. § 1806(f). See United States v. Belfield, 692 F.2d 141, 147 (D.C.Cir.1982) (“The language of section 1806(f) clearly anticipates that an ex parte, in camera determination is to be the rule. Disclosure and an adversary hearing are the exception, occurring only when necessary.”). In such circumstances, neither defendant nor defendant’s counsel is likely to have access to the underlying information. 50 U.S.C. § 1806(f) (The district court “may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other mater
