No FISA Warrant Access for Terror Suspect

CHICAGO (CN) - Defense counsel for a 20-year-old man who tried to explode a bomb in downtown Chicago may not have access to the secret warrant applications that permitted FBI surveillance of their client, the 7th Circuit ruled.

In 2012, 18-year-old Adel Daoud was indicted for attempting to detonate a bomb at a downtown Chicago bar.

Daoud, a U.S. citizen, was contacted online by undercover FBI agents posing as terrorists, and he expressed interest in committing violent jihad attacks in the United States, according to the 35-page ruling from the three-judge panel.

One of his FBI correspondents put him in touch with a "cousin" - another agent posing as a radical jihadist - whom Daoud met in person six times, and who supplied Daoud with a fake bomb to destroy the target of his choice.

Daoud parked a jeep containing the bomb in front of a bar in downtown Chicago, and tried to detonate the bomb in the presence of the agent, who immediately arrested him.

In court, Daoud's counsel sought access to the classified information that supported the government's warrant applications to the Foreign Intelligence Surveillance Court (FISC) authorizing the electronic surveillance Daoud.

This evidence could be excluded if it was unlawfully acquired or if the surveillance was not properly authorized.

Although no court has ever allowed disclosure of FISA orders to the defense, the federal judge overseeing Daoud's trial granted the defense its requested access.

But the 7th Circuit overturned the ruling on Monday, one week after hearing oral arguments.

"Terrorism is not a chimera," Judge Richard Posner wrote for the panel. "With luck Daoud might have achieved his goal of indiscriminately killing hundreds of Americans - whom he targeted because, as he explained in an email, civilians both 'pay their taxes which fund the government's war on Islam' and 'vote for the leaders who kill us every day.'"

The Foreign Intelligence Surveillance Act (FISA) attempts to strike a balance between the openness of adversarial legal proceedings, and the needs of national security, Posner wrote.

"Though it is certainly highly unlikely that Daoud's lawyers would, Snowden-like, publicize classified information in violation of federal law, they might in their zeal to defend their client, to whom they owe a duty of candid communication, or misremembering what is classified and what not, inadvertently say things that would provide clues to classified material," Posner wrote, referring to former National Security Agency contractor Edward Snowden, who leaked confidential documents revealing the government's mass surveillance of domestic phone records.

Even though Daoud's counsel have the necessary security clearances to view the material, the judge still has the "statutory duty of attempting to determine the legality of the surveillance without revealing any of the fruits of the surveillance to defense counsel," the court ruled.

The court said it would explain in a separate, classified opinion why it was convinced that the investigation did not violate FISA.

Judge Ilana Rovner concurred, but wrote separately to discuss the application of the Supreme Court's ruling in Franks v. Delaware in this context. Under Franks, a warrant is invalid if a defendant can show that it contains a false statement, which the affiant knew was false at the time, and which was necessary to the finding of probable cause.

She said that the secrecy surrounding FISA applications make it "impossible" for a defendant to object to a material misstatement or omission, because the defendant has no access to it.

"I view it as mistaken to believe that a judge will be able on his or her own to ferret out any potential misrepresentations or omissions in the FISA application, given that the judge lacks a defendant's knowledge as to the facts underlying the application and has only the government's version of the facts as a reference point," the judge said.

Rovner concluded: "My essential point is this: Courts cannot continue to assume that defendants are capable of carrying the burden that Franks imposes when they lack access to the warrant application that is the starting point for any Franks inquiry. Courts must do what they can to compensate for a defendant's ignorance as to what the FISA application contains. Otherwise, Franks will persist in name only in the FISA setting."

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