Federal prosecutors will fight a judge’s decision to let a defense lawyer see secret foreign intelligence papers that may have led to evidence against his client, the first such ruling in a U.S. terrorism case.
The government filed a notice of intent to appeal yesterday in federal court in Chicago, where U.S. District Judge Sharon Johnson Coleman last month granted attorney Thomas A. Durkin’s request to see applications for intelligence-gathering submitted to the Foreign Intelligence Surveillance Court.
The judge, who said she was the first to let a defense attorney see such records, put her ruling on hold today pending the outcome of the appeal.
Durkin represents Adel Daoud of Hillside, Illinois, who was arrested in September 2012 and accused of trying to detonate a bomb outside a downtown Chicago bar. The bomb was a phony, part of a Federal Bureau of Investigation sting operation. Daoud has pleaded not guilty.
The government is coming under increasing scrutiny for surveillance at home and abroad through the National Security Agency’s collection of telephone and Internet metadata, following revelations by former government contractor Edward Snowden about U.S. intelligence-gathering methods.
Coleman said in her Jan. 29 ruling that the threat to national security of giving Durkin access to the papers was outweighed by the risk of non-disclosure in Daoud’s case.
U.S. Attorney General Eric Holder opposed giving Durkin access, arguing that it would harm national security.
Durkin, a partner in the Chicago law firm Durkin & Roberts, said he was granted a security clearance defending clients in other terrorism-related cases.
He must prove his clearance is valid before he can see the records, the judge said on Jan. 29.
In court today, Durkin sparred with Assistant U.S. Attorney Barry Jonas over his level of security clearance. He told the judge he didn’t want the question of whether he was qualified to be used against him on appeal.
He also corrected Coleman, who said last month he holds a higher level of clearance than he does. He gave her a letter from Dan Hartenstine, a member of the Justice Department’s litigation security group, confirming his prior clearances and eligibility for a more advanced level.
“Until there is an actual need to know, he shouldn’t have it,” Jonas told the judge
“I’m not asking to be let into the program,” Durkin countered. “I don’t want to get sandbagged at the court of appeals.”
The judge, appointed by President Barack Obama, a Democrat, also denied the lawyer’s request to bar any evidence obtained from government surveillance. She said he can raise that issue later.
Coleman said she will postpone Daoud’s trial, which had been set for April 7, until November so that the appeals process can run its course. Hartenstine’s letter will be made available to the appellate court, she said.
“The law makes it clear that they have a right to appeal,” Durkin said after the hearing. He called the case “too unique” to predict how the appeals court will rule.
Randall Samborn, a spokesman for Chicago U.S. Attorney Zachary Fardon, declined to comment on today’s proceedings.
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 has 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).