A defense lawyer won permission to see secret foreign intelligence papers that may have led to evidence against his client, the first such ruling in an American terrorism case.
Over the objection of U.S. Attorney General Eric Holder, a Chicago federal judge yesterday granted attorney Thomas A. Durkin’s request to see applications for intelligence gathering submitted to the Foreign Intelligence Surveillance Court. The judge said she was the first to allow a defendant’s attorney to see such FISA records.
“That has never happened before,” said New York lawyer Ronald Kuby, who has defended Islamic and Puerto Rican terrorism suspects. “It sets a very specific precedent.”
Durkin represents Adel Daoud, 20, of Hillside, Illinois, who was arrested in September 2012 after allegedly trying to detonate a phony bomb outside a downtown Chicago bar in a Federal Bureau of Investigation sting operation. Daoud pleaded not guilty.
Holder said in an affidavit that the disclosure would harm national security. The ruling comes as the federal government is coming under increasing scrutiny for surveillance at home and abroad using the National Security Agency’s collection of telephone and Internet metadata.
The documents, known as FISA application materials, may not clear Daoud of wrongdoing, Kuby said today in a phone interview. They are more likely to “be highly embarrassing to the government,” he said.
In a federal case in Colorado, a man charged with attempting to provide support to an overseas terrorist organization is seeking to block the government’s use of any evidence that the U.S. has said it obtained from “foreign intelligence” collected under 2008 amendments made to FISA.
Lawyers for Jamshid Muhtorov in a court filing yesterday argued that the government’s monitoring of Muhtorov’s communications under the statute violated his Constitutional protections against unreasonable searches. Muhtorov filed an information sharing request to examine how the statute was used in the government’s investigation. The 2008 amendment allows the government to collect the international communications of U.S. citizens and residents without probable cause, according to the filing.
After years with no outside scrutiny of their FISA applications, law enforcement officials have probably become complacent, Kuby said. Without oversight, “law enforcement tends to get sloppy. It tends to generalize. It tends to do the minimum necessary” to win court approval of a search warrant, he said.
Google Inc. and Apple Inc. were among technology companies that won U.S. permission to disclose more about government orders for customer data after revelations by former government contractor Edward Snowden about their role in U.S. spying.
Under an agreement with the Justice Department announced Jan. 27, the companies are allowed to publish, for the first time, aggregate numbers of orders under the NSA’s so-called Prism program, as well as national security letters seeking information for investigations.
U.S. District Judge Sharon Johnson Coleman said in yesterday’s ruling that the risk to national security was outweighed by the risk of non-disclosure in Daoud’s case.
“While this court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case the court finds that the disclosure may be necessary.” Coleman said.
Durkin, a partner in the Chicago law firm Durkin & Roberts, said he has been granted a security clearance while defending clients in other terrorism-related cases.
He must prove his clearance is still valid before he can see the records, the judge said. Coleman, appointed by President Barack Obama, a Democrat, denied Durkin’s request for an order suppressing the fruits of the government’s surveillance, giving him permission to raise the issue later.
Requiring a security clearance to see the documents means the victory will be limited for other defense lawyers, Kuby said. Only the federal government can grant security clearances, so the ruling may create two classes of lawyers: those endorsed by the government, and those opposed, who won’t be able to see FISA application materials.
“This decision is historic, courageous and very meaningful in assuring the preservation of the integrity of the adversarial process in federal terrorism-related criminal prosecutions,” Durkin said in an e-mail.
Randall Samborn, a spokesman for U.S. Attorney Zachary Fardon in Chicago, said the office doesn’t comment on pending cases.
A year after his arrest, Daoud was accused in a separate indictment of trying to arrange the killing of an FBI agent who was part of the original sting operation. He also pleaded not guilty to that charge.
The case is U.S. v. Daoud, 1:12-cr-00723, U.S. District Court, Northern District of Illinois (Chicago).