CHICAGO (CN) - Claiming that the Senate's torture report justifies ending deference by the courts to intelligence agencies, new filings in a terror case say Adel Daoud's trial should be kept open.
Daoud, a U.S. citizen, was 17 when he allegedly took the bait offered by undercover FBI agents posing as terrorists who contacted him online about committing violent jihad attacks in the United States.
The indictment says one of these FBI correspondents next put Daoud in touch with a "cousin," a man Daoud allegedly believed was a radical jihadist when they met in person six times.
Federal prosecutors say this undercover agent supplied Daoud with a fake bomb to destroy the target of his choice, and watched as Daoud tried to detonate it inside the Jeep he parked in front of a bar in downtown Chicago.
Though the government plans to call this agent who slapped the cuffs on Daoud as witness for trial, they want him to testify anonymously, and they want to close the Chicago courtroom to the public and press during his testimony.
Prosecutors say these precautions are necessary because Daoud already solicited this agent's murder from prison, activity for which he has been charged with murder-for-hire.
But Daoud's defense team says the government's actions would even keep them from knowing the agent's true identity, limiting cross-examination.
As proof that U.S. intelligence agencies may mislead even the highest branches of government, a response that Daoud's team filed Monday cites heavily from the recently released Senate Select Committee on Intelligence report on CIA torture.
The report "rightly exposed the fallacy inherent in Judicial Branch deference to the Executive Branch," Durkin & Roberts attorney Thomas Durkin wrote. "That is, just as we have argued that the court cannot trust the representation of the prosecutors based upon the whimsical and selective agency disclosure to them, it is clear that the intelligence apparatus has no qualms in deceiving either the Executive or Legislative Branches."
Durkin's response particularly focuses on the CIA's decision to move four detainees from Guantanamo in 2004 to avoid the repercussions of the Supreme Court's decision in Rasul v. Bush, which ruled that federal courts may consider habeas petitions from prisoners at Guantanamo.
"While the Torture Report's revelation concerning the CIA's reaction to the Supreme Court granting certiorari in Rasul is shocking, it also indicates that Article III courts have the capacity - indeed, counsel would submit, the responsibility - to serve as a meaningful check on the intelligence agencies," the 23-page filing states. "The most important step that this court should therefore take is also the most basic: hold a public trial."
Durkin is also the lead author of a motion filed Monday to compel protected disclosure of the undercover agent's identity to cleared counsel, and the opportunity to conduct a pretrial interview.
"The true identity of the UCE [undercover employee] as well as additional information regarding his background and experiences are material to the defense," Durkin wrote. "The prosecutors, at the behest of the intelligence agencies, simply cannot drape their key witness in secrecy and anonymity by unilaterally deciding that cleared counsel do not have a 'need to know' this essential information."
In June, the 7th Circuit ruled that defense counsel may not have access to the secret warrant applications that permitted FBI surveillance of Daoud, warning that "terrorism is not a chimera."
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.