Judge: Defense in terror case can see secret docs
By MICHAEL TARM
the associated press | January 30,2014
ap file photo
This photo shows Adel Daoud, of Hillside, Ill., who is accused of seeking to detonate a bomb in Chicago in 2012 — a charge he denies.
CHICAGO — The government can’t keep secret its request to conduct clandestine surveillance of an accused attempted terrorist, a federal judge in a Chicago terrorism case said Wednesday in a ruling that gives defense attorneys an unprecedented look at a request made to the country’s secret intelligence court for permission to spy on a U.S. citizen.
U.S. District Judge Sharon Johnson Coleman said her ruling is the first time a defendant’s lawyers will be given access to an application prosecutors submitted to the intelligence court, which was established in 1978 to monitor spying within in the United States.
It’s not clear if the spying took place, but a judge said the government must make their request to do so available to his defense attorneys.
It is a rare win for the defense, which has pressed for the government to shed more light on how investigators employed the kind of phone and Internet spying revealed by ex-government contractor Edward Snowden.
The pretrial ruling is in the case of 20-year-old Adel Daoud, a U.S. citizen from suburban Chicago. He denies allegations he took a phony car bomb from an undercover FBI agent in 2012, parked it by a downtown Chicago bar and pressed a trigger.
The decision means they will be able to challenge prosecutors on the substance of the application. Prosecutors had wanted the judge to view the secret application herself behind closed doors — with prosecutors present, but with the defense locked out on security grounds.
“The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding,” Coleman wrote. “The adversarial process (where two sides argue for and against) is the bedrock of effective assistance of counsel protected by the Sixth Amendment (assuring a fair trial).”
In a related ruling earlier this month, Coleman ruled prosecutors did not have to disclose, one way or the other, whether the kind of expanded surveillance as revealed by Snowden was used to tip investigators off about Daoud. But the application related to Daoud could potentially indicate what led investigators to decide Daoud should be scrutinized further, be it an informant or the expanded surveillance.
In an email, Daoud’s lead attorney, Thomas Durkin, called it a “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. They would have the option of appealing Coleman’s ruling to the U.S. 7th Circuit Court of Appeals in Chicago sometime prior to Daoud’s trial, which is scheduled to begin on April 7.
In her five-page opinion, the judge notes one of the government’s arguments for not offering their courtroom adversaries access to applications submitted to the Foreign Intelligence Surveillance Court, or FISA court, was that it had never been done before.
“That response is unpersuasive,” she wrote. “Without a more adequate response to the question of how disclosure of materials to cleared defense counsel pursuant to protective order jeopardizes national security, this court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel.”