Federal appeals court: Fort Hood suspect cannot see evidence against him obtained through FISA

NEW ORLEANS — The Army psychiatrist charged in the deadly mass shooting at Fort Hood, Texas, cannot access evidence obtained through secret electronic surveillance, a federal appeals court ruled.

The 5th Circuit Court of Appeals in New Orleans also denied Maj. Nidal Hasan's motion to suppress the evidence the government plans to use against him. The court's decision Wednesday upheld a lower court's ruling issued before Hasan recently began serving as his own attorney.

Hasan faces execution or life without parole if convicted in the 2009 rampage that left 13 dead and nearly three dozen wounded on the Texas Army post. Jury selection in his court-martial started Tuesday at Fort Hood, and testimony in the trial is to start Aug. 3.

In his motion, Hasan's attorneys had argued that without access to the evidence obtained through the Foreign Intelligence Surveillance Act, or FISA, his legal rights would be violated. But the appeals court said "it cannot be said that this exclusion rises to the level of a constitutional violation." The ruling said every appeals court that has considered a constitutional challenge to FISA has upheld the statute.

"In FISA Congress has made a thoroughly reasonable attempt to balance the competing concerns of individual privacy and foreign intelligence," the ruling states.

FISA, enacted in 1978, allows the government to monitor conversations of foreign spies and terrorist suspects abroad for intelligence purposes. The 2008 FISA amendments allow the government to obtain from a secret court broad, yearlong intercept orders, which raises the prospect that phone calls and emails between those foreign targets and innocent Americans in this country would be swept under the umbrella of surveillance.

Some of these FISA court rulings also likely have been disclosed by Edward Snowden, the NSA systems analyst who recently leaked significant information about the spying program.

The nature and timing of the surveillance on Hasan is unclear. But the FBI has released emails from Hasan to a radical Muslim cleric, in which he indicated that he supported terrorists and was intrigued with the idea of U.S. soldiers killing comrades in the name of Islam. Hasan told the military judge last month that he opened fire in the Fort Hood building because he thought soldiers were deploying and posed an immediate threat to Taliban leaders in Afghanistan.