Court Denies Access to U.S. Surveillance Records
(CN) - The 7th Circuit on Monday overturned a judge's unprecedented ruling that would have allowed a terrorism suspect's lawyers to view classified government material.
A three-judge panel said U.S. District Judge Sharon Coleman in Chicago "disobeyed" the Foreign Intelligence Surveillance Act when she ordered the disclosure of classified materials to lawyers defending Adel Daoud, a teen accused of scheming to detonate a car bomb near a bar in downtown Chicago.
Daoud had emailed two undercover FBI agents about planning "violent jihad" in the United States using bomb-making instructions he read in a magazine affiliated with al-Qaida, according to his indictment.
He met repeatedly with a third agent posing as a weapons supplier, who warned him the bomb would kill "hundreds" of people, prosecutors say.
"That's the point," Daoud allegedly replied.
He tried to detonate the bomb on Sept. 14, 2012, according to the indictment, but nothing happened because it was a fake bomb. Daoud was immediately arrested. While in jail, he allegedly tried to hire someone to murder one of the undercover agents.
His lawyers sought access to the classified materials used to obtain warrants for the government's electronic surveillance of Daoud.
The government responded with a heavily redacted, unclassified version of the materials, which it sent to Daoud and his attorneys. Judge Coleman was able to view the classified version, though the government warned her that disclosing it to defense counsel "would harm the national security of the United States."
Though "no court has ever allowed disclosure of FISA materials to the defense," according to Coleman's ruling, she nonetheless ordered the materials turned over to Daoud's attorneys, in part because they had the proper level of security clearances.
She explained that "the adversarial process is integral to safeguarding the rights of all citizens."
The 7th Circuit disagreed, citing several examples of hearings that aren't adversarial and information that's not fully public.
"Conventional adversary procedure thus has to be compromised in recognition of valid social interests that compete with the social interest in openness," Judge Richard Posner wrote for the panel.
"Unless and until a district judge performs his or her statutory duty of attempting to determine the legality of the surveillance without revealing any of the fruits of the surveillance to defense counsel, there is no basis for concluding that disclosure is necessary in order to avert an erroneous conviction," Posner wrote.
The panel further rejected the notion that the lawyers' security clearances alone "dissolved" any concerns about disclosure.
"There are too many leaks of classified information-too much carelessness and irresponsibility in the handling of such information-to allow automatic access to holders of the applicable security clearances," Posner wrote.
He said Coleman should have made the call on whether Daoud's lawyers needed any of the surveillance materials. Because the judge failed to do so, she "disobeyed the statute," he said.
The appellate judges declined to remand the case, however, saying their study of the classified materials "convinces us that the investigation did not violate FISA."
Judge Illana Rovner wrote separately to point out that the legal right to challenge a search warrant "cannot operate in the FISA context as it does in the ordinary criminal case."
"To pretend otherwise does a disservice to the defendant and to the integrity of the judiciary," she wrote.
She urged the judiciary "to acknowledge the problem, make such accommodations as it can, and call upon other branches to make reforms that are beyond our power to implement."