SurveillanceA first: Judge in terrorism case rules defense may examine government secret FISA application

U.S. District Judge Sharon Johnson Coleman ruled yesterday (Wednesday) that the U.S. government cannot keep secret its request to conduct clandestine surveillance of an accused would-be terrorist. The ruling gives defense attorneys an unprecedented access to a request made to the Foreign Intelligence Surveillance Act (FISA) court for permission to spy on an American citizen.

Judge Coleman said her ruling is the first time a defendant’s lawyers will be given access to an application prosecutors submitted to the FISA court, created in 1978 to monitor spying within in the United States.

Only two weeks ago, the judge denied the defense’s request to examine the submission to the FISA court (see “Judge denies defense request to see whether NSA surveillance led to terrorism charges,” HSNW, 21 January 2014).

The Montreal Gazette reports that it is not clear whether the spying actually took place, but a judge said the government must make their request to do so available to his defense attorneys.

The defense said the purpose of the request to see the submission to the FISA court is to find out whether or not that request was based on an NSA tip to the FBI that the defendant, 20-year-old Adel Daoud, a U.S. citizen from suburban Chicago, was suspected of plotting a terrorist act.

Now, if the NSA tipped the FBI based on information the NSA learned through its bulk metadata collection program, then the defense would be ready to argue that it was illegally obtained evidence since the bulk metadata collection program was itself illegal.

If the basis for the FBI’s FISA request for surveillance of Daoud was information gleaned through the NSA bulk collection program, it should be inadmissible since the exclusionary rule stipulates that evidence illegally seized by law enforcement officers in violation of a suspect’s right to be free from unreasonable searches and seizures cannot be used against the suspect in a criminal prosecution.

Daoud visited several Web sites and chat rooms frequented by jihadists, and expressed an interest in committing an act of terrorism in Chicago. He began to exchange idea with individuals who he believed were fellow Islamists but who were, in fact, FBI agents. He was given several opportunities to back off, but insisted on going forward, and chose as his target a popular night club in downtown Chicago

The FBI agents helped him buy what he believed to be powerful explosives, and instructed him on how to turn a pickup truck into a car bomb. He drove the pickup truck, filled with harmless substance, and parked it near midnight just outside the crowded club. He was arrested as he was about the leave the truck.

Daoud denies the allegations.

Judge Coleman’s decision means that the defense will be able to challenge prosecutors on the substance of the application.

Prosecutors suggested that the judge would view the secret application herself behind closed doors, with prosecutors present but with the defense lawyers locked out on security grounds.

Security experts warned that opening FISA applications to review in a criminal case may set a dangerous precedent.

“The FISA applications have some of the most sensitive information there is about intelligence sources and methods,” said Ken Wainstein, a former adviser for Homeland Security and Counterterrorism to President George W. Bush. “If that information routinely got into the hands of people outside the intelligence community and the judiciary, it could compromise national security.”

Daoud’s lead attorney, Thomas Durkin, described Judge Coleman’s decision as “historic, courageous and very meaningful ruling to preserve the integrity of the adversarial process.”

The U.S. attorney’s office in Chicago declined any comment on the ruling, but they could appeal Judge Coleman’s ruling to the U.S. 7th Circuit Court of Appeals in Chicago sometime before Daoud’s trial, which is scheduled to begin on 7 April.

Before he can examine the secret documents, Durkin would have to demonstrate he has attained the security clearance required. Durkin, who served as the leading defense attorney in several terrorism case over the years, says he has a security clearance.

Judge Coleman noted in her ruling Wednesday that she was not an attempting to assert any opinion on the constitutionality of U.S. surveillance.