Appeals Court Overturns First Ever Order to Reveal Surveillance Court Documents

Wednesday, June 18, 2014
Judge Sharon Coleman (photo: University of Chicago)

A federal judge’s precedent-setting ruling that ordered the release of secret court documents to a terrorism defendant’s lawyer has been overturned on appeal, dashing the hopes of defense counsel and civil libertarians.


In January, U.S. District Judge Sharon Coleman ruled that the criminal defense attorney for Adel Daoud could review classified evidence obtained by the government under the Foreign Intelligence Surveillance Act (FISA).


The decision marked the first time ever that a judge supported a defendant’s claim to see classified information gathered against them.


Daoud was arrested by federal authorities two years ago after he plotted to explode a bomb in downtown Chicago. The teenager had learned bomb-making techniques from an al-Qaeda-affiliated publication and sought out three potential co-conspirators, each of whom—unbeknownst to him—were undercover FBI agents. Daoud’s emails to the agents revealed his plan to engage in “violent jihad” in the U.S., beginning with the bombing of a Chicago bar, designed to kill hundreds of people.


Daoud was supplied with a fake bomb by one of the agents. He was arrested after attempting to explode it. While in prison, he allegedly attempted to hire someone to kill one of the FBI agents, according to the indictment.


In her opinion, Coleman wrote: “The adversarial system is integral to safeguarding the rights of all citizens. This court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger” of providing the documents to Daoud’s lawyer, as long as he obtained the proper security clearances.


The U.S. government objected to Coleman’s ruling, insisting that disclosing the classified materials to Daoud’s lawyer “would harm the national security of the United States.” It petitioned the Seventh Circuit Court of Appeals to review the decision. There, a three-judge panel overturned (pdf) the ruling and accused Coleman of having “disobeyed the [FISA] statute” by ordering the evidence disclosure without first determining if the surveillance that obtained it was legal.


“Although she . . . concluded that she was ‘capable of making such a determination’ . . . she refused to make the determination,” Judge Richard Posner, a conservative appointed to the federal bench by President Ronald Reagan, wrote.


Posner also warned that release of the classified documents risked public disclosure. “There are too many leaks of classified information—too much carelessness and irresponsibility in the handling of such information—to allow automatic access to holders of the applicable security clearances,” he wrote.


Daoud’s attorney, Thomas Durkin, criticized the ruling.


“Philosophically, I could not disagree more with Judge Posner and the court,” he told The Washington Post. “The adversarial process is far greater than the balancing of society’s interest in openness. It is the foundation of civil liberties in this country. This is but another step in the continued creation of a two-tiered system of justice in federal courts.”


The American Civil Liberties Union (ACLU) also condemned the circuit court decision.


“The fairness of the criminal process is undermined when a defendant and his lawyers are barred from accessing materials that go to the heart of the government’s investigation — especially given what we know today about the breadth and complexity of the government’s surveillance methods,” ACLU attorney Patrick Toomey said.

-Noel Brinkerhoff


To Learn More:

Appeals Court Overturns Lower Court Order Permitting Disclosure of Secret FISA Material (by Ellen Nakashima, Washington Post)

Court Denies Access to U.S. Surveillance Records (by Annie Youderian, Courthouse News Service)

U.S. v. Adel Daoud (Seventh Circuit Court of Appeals) (pdf)

Federal Judge Orders Justice Dept. to Turn over Secret FISA Court Documents (by Steve Straehley, AllGov)

For the First Time, Judge Allows Lawyer for Terror Suspect to See FISA Court Evidence (by Noel Brinkerhoff and Danny Biederman, AllGov)


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