A lawyer seeking unprecedented access to secret U.S. court records to defend his client on terrorism charges faced skepticism from federal appeals judges in Chicago.
U.S. Circuit Judge Richard A. Posner today questioned a lower court’s decision to give defense lawyer Thomas A. Durkin access to documents the government filed with the Foreign Intelligence Surveillance Court.
Instead of making a final ruling on a defense request to suppress government evidence, U.S. District Judge Sharon Johnson Coleman gave the lawyers permission to review the secret court documents to assess whether the evidence was gathered lawfully. Coleman should’ve explained her decision, Posner said.
Coleman called her ruling the first of its kind. Prosecutors said it will force the government to disclose sensitive classified information, damaging national security. Durkin has argued he needs access to the records to defend his client, Adel Daoud, a Chicago-area teenager ensnared in a government sting operation and charged with attempting to bomb a downtown bar.
John D. Cline of San Francisco, Daoud’s lawyer in the appeal hearing, told the three-judge panel requiring the defense to file a request to suppress evidence without knowing details of warrant applications was “like playing pin the tail on the donkey.”
Daoud was arrested by Federal Bureau of Investigation agents in September 2012 at the age of 18 after allegedly trying to detonate a device given to him by an undercover agent. He later pleaded not guilty to charges of attempting to use a weapon of mass destruction and trying to damage or destroy a building with an explosive.
His case is one in a series of sting operations in which undercover agents befriended men suspected of harboring terrorist intentions, provided them with a fake weapon, and then arrested them when they tried to use it.
Assistant U.S. Attorney William Ridgway told Posner and U.S. circuit judges Ilana Diamond Rovner and Michael Kanne that the bar for granting access to FISA documents is necessarily high and those circumstances are rare.
After hearing about 40 minutes of argument, the panel cleared the courtroom of all but select personnel, including U.S. Attorney Zachary Fardon, to hear additional debate which Posner described as “secret.”
Among those barred from that portion of the proceedings were Cline, Durkin and members of the press.
The Daoud dispute comes to the U.S. Court of Appeals in Chicago amid disclosures about National Security Agency methods and practices by its former contract employee, Edward Snowden. Snowden’s NSA revelations have caused diplomatic friction with allies and spurred lawsuits aimed at curbing data collection.
In December, a federal judge in Washington said that the NSA’s telephone-data surveillance program probably violates constitutional privacy rights, possibly setting the stage for an eventual review by the U.S. Supreme Court. Yesterday, a federal judge in Idaho, while dismissing an unrelated lawsuit complaining about the NSA’s collection of phone data, suggested that the nation’s high court take up the issue.
The FBI made contact with Daoud after he used the Internet to obtain and post information about waging a holy war and killing Americans, the Justice Department said in announcing his arrest.
At the time, he was living in his parents’ house in suburban Hillside, Illinois, about 15 miles (24 kilometers) west of Chicago. A “substantial question” for Daoud’s trial is whether he was induced by government agents, or entrapped, into committing crimes, Durkin said in a court filing.
Coleman’s ruling in January, over the objection of Attorney General Eric Holder, gave Daoud’s lawyer permission to see paperwork, similar to a search warrant request, that government lawyers submitted to the Foreign Intelligence Surveillance Court. The court’s function is to review requests for permission to conduct surveillance or searches targeting foreign powers or their agents.
“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 wrote.
The judge granted Durkin access on the condition he obtain the security clearances required to view the secret papers. The attorney, who has represented Guantanamo Bay detainees and other clients charged with terrorism-related offenses, has told the court he was previously cleared to see confidential government information.
Coleman delayed her order pending the outcome of the appeal.
The government’s surveillance request may show it didn’t have cause to believe that Daoud, “a high school student from suburban Chicago and United States citizen, was an agent of a foreign power,” Durkin said in a filing. If so, Durkin could have grounds to seek the exclusion of evidence derived from it.
Prosecutors counter that the law allows disclosure of foreign-intelligence materials only when the court itself is unable to accurately determine whether the surveillance was lawful. Coleman didn’t adhere to that standard and failed to find the disclosure necessary, the U.S. said.
“Once this information is disclosed, the harm from disclosure cannot be undone,” prosecutors said in a March filing with the appeals court.
Charles Swift, a Seattle criminal defense attorney who, like Durkin, has represented accused terrorists and Guantanamo detainees, called the appellate case extremely important.
“Defense attorneys don’t get to be present when warrants are issued,” he said in a phone interview. “Most of the time, we get to see the basis. FISA has been the exception.”
Swift disputed the government’s argument that showing the papers to Durkin constituted a threat to national security, citing the attorney’s prior security clearances and his status as an officer of the court.
“I understand the need for national security,” said Swift, a U.S. Navy veteran. “I’m not against it. But I also believe this is an adversarial process and a one-sided process will never be fair.”
Daoud faces a maximum sentence of life in prison if he’s convicted on the weapons of mass destruction charge.
Sami Samir Hassoun, a Chicago man, last year was sentenced to 23 years in prison after pleading guilty to attempting to detonate a fake bomb near the ballpark used by Major League Baseball’s Chicago Cubs. He got the device from an undercover agent.
Derrick Shareef was sentenced in 2008 to 35 years in prison after pleading guilty to a plot to attack an Illinois shopping mall around Christmas 2006 with devices that an undercover agent told him were hand grenades.
The appellate case is U.S. v. Daoud, 14-1284, U.S. Court of Appeals for the Seventh Circuit (Chicago). The trial court case is U.S. v. Daoud, 12-cr-00723, U.S. District Court, Northern District of Illinois (Chicago).