SurveillanceJudge denies defense request to see whether NSA surveillance led to terrorism charges
U.S. District Judge Sharon Johnson Coleman on Friday ruled that lawyers for Adel Daoud, a 20-year old resident of Hillside, a suburb west of Chicago, who was charged with plotting to set off a powerful bomb outside a crowded Chicago bar, will not be allowed to examine whether the investigators who initiated the sting operation which led to Doud’s arrest relied on information gleaned from NSA surveillance programs. Attorneys for Daoud had asked Judge Coleman to instruct prosecutors to disclose “any and all” surveillance information used in Daoud’s case, including information disclosed to a U.S. Senate’s Select Committee on Intelligence. In a brief ruling posted late Friday, Coleman denied the motion, writing that the defense had “failed to provide any basis for issuing such an order.” Prosecutors would not confirm whether the FBI had initiated its operation against Doud as a result of a tip from the NSA, but they did say that even if such surveillance did exist, they have no plans of using it at trial and the defense was not entitled to it.
A judge on Friday ruled that lawyers for Adel Daoud, a 20-year old resident of Hillside, a suburb west of Chicago, who was charged with plotting to set off a powerful bomb outside a crowded Chicago bar, will not be allowed to examine whether the investigators who initiated the sting operation which led to Doud’s arrest relied on information gleaned from NSA surveillance programs.
The Chicago Tribune reports that attorneys for Daoud had asked U.S. District Judge Sharon Johnson Coleman to instruct prosecutors to disclose “any and all” surveillance information used in Daoud’s case, including information disclosed to a U.S. Senate’s Select Committee on Intelligence (see “DEA uses NSA surveillance information to make arrests,” HSNW, 6 August 2013).
Doud’s attorneys also asked to be allowed to be present when prosecutors presented their justification for search warrants and other intelligence gathering in the case.
In a brief ruling posted late Friday, Coleman denied the motion, writing that the defense had “failed to provide any basis for issuing such an order.”
Thomas Anthony Durkin, Daoud’s attorney, said in a written statement Monday that he was “not surprised” by the ruling but expected the issue to ultimately be decided by higher courts.
The effort to establish what happened [in the run-up to the sting operation] “is very procedurally complicated and hampered by the government’s refusal to give notice of what exactly transpired regarding the electronic surveillance,” Durkin said.
Daoud came to the attention of FBI investigators after he posted several messages online about killing Americans. He was arrested in September 2012 after trying to set off what he believed was a powerful car bomb outside a popular bar in the Chicago Loop. FBI agents posing as fellow terrorists exchanged messages with him and helped him plan an attack.
Daoud will face terrorism charges in a trial set to begin in April. Separately, he is facing charges for trying, while he was already in jail, to solicit the murder of one of the FBI agents in the case.
Senator Dianne Feinstein (D-California), the chair of the Senate Intelligence Committee, referred to the Doud case as an example of how the NSA bulk collection of metdata was central to capturing a would-be terrorist.
The Tribune notes that prosecutors would not confirm whether the FBI had initiated its operation against Doud as a result of a tip from the NSA, but they did say that even if such surveillance did exist, they have no plans of using it at trial and the defense was not entitled to it.
The prosecutors argued that a federal judge found probable cause for the search warrants in the case, and if Daoud’s attorneys want to try to suppress the materials gathered in the investigation, they should do so through normal channels, not by raising questions about the legality of an NSA data collection program which did or did not contribute information to the investigation.
Durkin, in a hearing before Judge Coleman earlier this month, said he no longer trusts what federal prosecutors tell him in terrorism-related cases because he believes the intelligence community keeps prosecutors in the dark.
“It’s not because they’re hiding anything,” said Durkin, gesturing to the prosecution table. “But because things are being hidden from them.”
Durkin said that the country is “at a crossroads” and asked the judge to put her foot down when it comes to intelligence agencies being allowed to “operate in the dark.”
“Step up and simply say the time has come for the adversarial process to be permitted,” Durkin told Judge Coleman. “It would go a long way toward restoring a lot of lost faith in this country.”
Judge Coleman, though, indicated at the time that Durkin may be overreaching.
“I’m not sure my ruling will be quite so grandiose,” she said.
The Tribune notes that her ruling late Friday ended up being just a paragraph in length.
