In September 2011, Agron Hasbajrami, an Albania native and permanent U.S. resident living in Brooklyn, New York, was arrested at JFK airport as he awaited to take a flight to Turkey and charged with attempting and conspiring to provide material support to terrorists.
According to federal prosecutors, Hasbajrami planned to travel from Turkey to the Federally Administered Tribal Areas of Pakistan (FATA) where he hoped to join a radical jihadist group. Prosecutors charged that he had previously sent $1,000 in multiple wire transfers to support terrorist activities in Pakistan and Afghanistan. Subsequent searches of his person at the airport and later at his residence revealed incriminating evidence.
On April 12, 2012, Hasbajrami entered a guilty plea in the U.S. District Court for the Eastern District of New York. His sentencing date was set for September 14, 2012 by U.S. District Court Judge John Gleeson. However, before sentencing could take place, federal prosecutors disclosed that some evidence against Hasbajrami had been obtained through a warrantless search under Section 702 of the Foreign Intelligence Act of 1978 (FISA). Hasbajrami withdrew his guilty plea and filed a motion to suppress the fruits of the Section 702 search. Judge Gleeson denied the suppression motion.
Hasbajrami ultimately reached a plea arrangement with the U.S. Attorney’s Office to plead guilty and accept deportation from the United States in exchange for an agreement with prosecutors that allowed him to challenge the lawfulness of the evidence the government had secured under Section 702 on appeal.
On June 26, 2015, Hasbajrami entered a second guilty plea and on August 13, 2015, was sentenced to 16 years in prison by Judge Gleeson.
Hasbajrami then appealed his conviction to the Second Circuit Court of Appeals.
On December 18, 2019, the appeals court handed down a heavily redacted 89-page decision that found there is no per se Fourth Amendment violation through Section 702 searches but remanded Hasbajrami’s case back to the district court because there was “insufficient information in either the classified or the public record in this case to permit us [to determine] whether any such querying was reasonable, and therefore permissible under the Fourth Amendment.”
In other words, Section 702 querying searches can, in fact, trigger a separate Fourth Amendment scrutiny that could render such searches unconstitutional under given sets of circumstances.
The “querying” referred to by the Second Circuit, also known as “backdoor searches,” is the process by which government entities, like FBI and NSA, use terms or keywords to search previously collected data that was previously lawfully collected under Section 702 of FISA. The Section 702 database only holds communications to or from foreign targets “pertinent to full predicated national security investigations.” The foreign targets’ phone calls, emails, text messages, and other electronic communications are collected without a traditional search warrant. Communication with American citizens or lawful U.S. residents is sometimes captured as part of the process.
Each year, U.S. government intelligence and law enforcement agencies conduct hundreds of millions of Section 702 warrantless searches. The searches are done without a warrant and under FISA. If the law enforcement entity is searching for evidence of purely domestic crime or investigating a particular American, the investigator must obtain a court order from a Foreign Intelligence Surveillance Court.
The longstanding problem in this intelligence-gathering process is that there is no meaningful constitutional protection for the information picked up about Americans who, under FISA, cannot usually be targets of such intelligence-gathering. Privacy advocates have long stated that the information collected against Americans in this backdoor manner should enjoy Fourth Amendment protection.
And therein lays the constitutional rub.
FISA created its own Foreign Intelligence Surveillance Court (FISC), which has consistently held that “querying” does not violate the Fourth Amendment. Some non-FISC courts agree with this constitutional premise.
That’s why the decision reached by U.S. District Court Judge LaShann DeArcy Hall this past December in the Hasbajrami case that the evidence gained against him through the Section 702 searches violated the Fourth Amendment is so remarkably significant. It is the first court decision to “hold that the warrant requirement applies to U.S. person queries.”
Speaking about this court ruling, the ACLU had this to say:
“The court’s opinion addresses numerous queries the FBI conducted of the defendant, Mr. Agron Hasbajrami, during an investigation years ago. The government initially hid its use of Section 702 in Mr. Hasbajrami’s case and others, reversing course only after the Department of Justice’s policy of wrongly concealing Section 702 surveillance in criminal cases came to light.”
However, as pointed out on February 25, 2025, by Gene J.Koprowski, writing for the New York State Bar Association, Judge Hall did not “require the government to provide anything in addition to the summaries of its FISA searches that it already disclosed, nor provide any other relief requested by the defendant, and indicated the unconstitutional search of some of the information used to secure the guilty plea did not void the defendant’s conviction.”
Despite the remarkable significance of Judge Hall’s decision and its embrace by privacy advocates like the ACLU and the Electronic Frontier Foundation, the ruling let stand a conviction whose guilty plea was induced by unconstitutional means. Argon Hasbajrami has been incarcerated for nearly 10 years of his 16-year sentence, which will be followed by deportation back to Albania. Mr. Hasbajrami has appealed the court’s decision.
And the fundamental flaw in Section 702 remains: information about American citizens or lawful U.S. residents obtained through Section 702 searches is stored in databases that can be queried (“backdoor searches”) by U.S. intelligence agencies and/or federal law enforcement agencies without a warrant.
For example, the FBI has been accused of conducting such backdoor searches hundreds of thousands of times each year, specifically targeting the electronic communications of Americans under the guise of intelligence gathering.
Therefore, the tension between legitimate national security interests and the persistent need to protect constitutional rights will not abate because of the recent Hasbajrami ruling and most certainly will increase given the Trump appointees to the FBI, the U.S. Attorney General, and Director of National Intelligence who will in lockstep pursue the president “revenge” campaign against his real and imagined enemies.
