An unprecedented decision to let the lawyer for a man facing terrorism charges see a secret U.S. intelligence court filing was reversed as an appeals panel ruled the disclosure was unnecessary to set up a fair trial.
The Chicago-based court, which reviewed the classified papers and questioned a prosecutor in a hearing closed to everyone else, said today that U.S. District Judge Sharon Johnson Coleman could have decided whether to keep some evidence out of the case without letting defense attorney Thomas A. Durkin see the classified filing.
Coleman’s decision, which she said was the first ordering the government to turn over such a document to the defense, overrode objections by U.S. Attorney General Eric Holder. He contended the disclosure would harm national security.
Durkin, who represents a man accused of trying to detonate a bomb outside a downtown Chicago bar, won permission in January to view applications for intelligence gathering submitted by the U.S. to the Foreign Intelligence Surveillance Court, seeking to determine if any of the evidence against his client, Adel Daoud, was obtained illegally.
Daoud, now 20, was arrested in September 2012 in a Federal Bureau of Investigation sting operation. The bomb he allegedly attempted to set off was a fake given to him by an undercover agent.
Coleman ruled that issues about the evidence could best be decided after allowing each side to argue its case knowing the contents of the secret filing.
Prosecutors immediately appealed, and today won a unanimous ruling from the three-judge panel.
“So clear is it that the materials were properly withheld from defense counsel that there is no need for a remand to enable the district judge to come to the same conclusion,” U.S. Circuit Judge Richard A. Posner wrote for himself and Judge Michael Kanne.
In a separate opinion, U.S. Circuit Judge Ilana Rovner agreed on the result while expressing some reservations.
“If disclosure of the FISA application is to be the exception rather than the rule,” she said of the government’s Foreign Intelligence Surveillance Act filing, “then we must look for a means of ensuring that FISA affiants act in good faith.”
Randall Samborn, a spokesman for Chicago U.S. Attorney Zachary Fardon, declined to comment on the appellate ruling.
“Philosophically, I could not disagree more with Judge Posner and the court,” Durkin said in an e-mailed statement. “The adversary system is the foundation of civil liberties in this country and this opinion drives another significant wedge into that time-honored process.”
Daoud faces a maximum sentence of life imprisonment if he is convicted on the more serious of the two counts he faces, attempted use of a weapon of mass destruction. His trial is scheduled for Nov. 10.
The case is U.S. v. Daoud, 14-1284, U.S. Court of Appeals, Seventh Circuit (Chicago).
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