I am not in favor of the massive surveillance that the NSA is currently conducting, collecting all our phone calls, emails, and text messages. The question here should be whether or not Adel Daoud parked what he thought was a car bomb outside a Chicago bar and pressed the detonator. That ought not to be something that can only be established by reference to secret-court documents.
“US appeals ruling granting defense in Chicago terrorism case to see secret-court documents,” by Michael Tarm for the Associated Press, March 31:
CHICAGO — A decision by a trial judge in Chicago to grant lawyers for a terrorism suspect unprecedented access to secret intelligence-court records would be a “sea change” in how such sensitive documents are handled and could end up jeopardizing national security, U.S. government attorneys argue in a hard-hitting appeal filed on Monday.
The dispute in Chicago is in the case of 20-year-old Adel Daoud, a U.S. citizen from an area suburb who 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.
But revelations of expanded U.S. phone and Internet spying by former National Security Agency contractor Edward Snowden raised the profile of such issues. The legal debate about whether secret court documents will be shown to Daoud’s attorneys is being watched by other lawyers defending terrorism suspects.
The surprise January ruling by U.S. District Judge Sharon Johnson Coleman was the first time defense attorneys had been told they could go through an application prosecutors submitted to the Foreign Intelligence Surveillance Court, or FISA, which was established in 1978 as a check on government surveillance.
That ruling was badly flawed, and it could set a dangerous precedent and have far-reaching implications, the government said in a 35-page filing that described the documents as dealing with “exceptionally sensitive issues with profound national security implications.”
“The district court … misjudged the damage to national security that could result from disclosing the FISA applications and orders,” it says. “Disclosure may lead to an unacceptable risk of compromising the intelligence-gathering process and undercut the FBI’s ongoing ability to pursue national security investigations.”
If permitted to stand, the district court’s order would put prosecutors in “a lose-lose dilemma,” the filing said. “Disclose sensitive classified information to defense counsel — an option unlikely to be sanctioned by the owners of that information — or forfeit all FISA-derived evidence against the defendant, which in many cases may be critical evidence for the government.”
Daoud’s attorney, Thomas Durkin, singled out prosecutors’ reference to unnamed “owners” of the information, saying the phrasing appeared to suggest someone other than then U.S. Justice Department was calling the shots about what could and couldn’t be disclosed in a criminal case.
“It’s astounding,” said Durkin in a phone interview later Monday. “This proves what I have been saying all along, which is that the Justice Department and the U.S. attorney’s office are not running this case. This is a case being run by the NSA or the CIA or whoever is the owner of that information.”
Unsurprisingly, perhaps, for a government document on secrecy, whole sections of the filing were secret. Underneath one entitled “The FISA Applications Established Probable Cause” were the words, “CLASSIFIED MATERIAL, REDACTED.”
Two weeks after her original decision, Coleman agreed to put her ruling on hold while the appeals process ran its course. With the issue unresolved, she also pushed the start of Daoud’s trial to Nov. 10 from April 7.
The lower court’s ruling, if it withstands appeal, would allow defense attorneys to comb through the government’s application asking the secret court to allow FBI and other agencies to spy on Daoud as part of the government’s investigation.
In her January ruling, Coleman said allowing defense attorneys to vet all potential evidence against their clients was the “bedrock” of the Sixth Amendment’s guarantee that defendants will get a fair trial.
Prosecutors’ filing calls Coleman’s ruling an “outlier decision” that ran counter to established practice of judges, not defense attorneys, going through FISA papers to decide if some information could be relevant to trial.
“The district court’s reasoning would turn that regime on its head,” the government filing said. “To compel disclosure on that basis would trivialize FISA’s necessity standard and work a sea change in FISA litigation.”
In a related ruling earlier in prosecutors’ favor, Coleman did say they did not have to disclose whether the kind of expanded surveillance as revealed by Snowden was used to tip investigators off about Daoud.
But the application to the FISA court could indicate what led investigators to decide Daoud should be scrutinized further, be it an informant or the expanded surveillance.
In her ruling, Coleman said she found the government’s contention that she shouldn’t grant the access because no judge had ever done it before “unpersuasive.”
Shady Character says
Why did the comment by Ismail Mohammed suddenly disappear??????????????
Mohammed's pink swastika says
he probably got banished
Champ ✿ says
Yep!
Jay Boo says
Maybe the imaginary apostate hunters tracked him down as well.
Larry S says
If you oppose bulk surveillance- which I concede, like any law enforcement tool, can be abused- then you are making it easier for organized mass murders. I will not be able to tell you when exactly, but the compromise of the NSA program will cost lives.
RCCA says
I’m sure the defense lawyers over at CAIR are thrilled.
[FA] says
I am actually compelled to agree with the lawyer. Sad it took a lawyer and the judge of a filthy jihadist to acknowledge the unconstitutional actions of FISA. While FISA, NSA, and their ilk attack our freedoms they scrub Islam and Jihad from all documents. I for one do not buy for one second it has a damn thing to with my well being.
pongidae rex says
What the NSA knows about you is what is on your monthly phone bill. That is public information. If your phone bill shows calls to known terror contacts inside or outside the US, then they may get a warrant to tap your calls. No warrant, no wiretap. Its the law. I have no problem with any of this. The word ‘privacy’ does not appear a single time in the US constitution. It protects your door from being kicked down and your home ransacked without due process. That’s it. If people who bitch about privacy are ok with lots of people being killed so terrorists can enjoy their ‘right to privacy’ then come out and say openly that you find that tradeoff acceptable, because that is the reality.
Inchoate says
Very well said.
We seem now to be too easily influenced by our hair-trigger [no pun intended] emotions when we should be coldly calculating concerning our Muslim enemy. There’s a whole industry [A.C.L.U. and C.A.I.R. for starters….] out there very successfully exploiting our very human instincts. “Lawfare” is a potent tactic and long term strategy.
Salah says
“This is a case being run by the NSA or the CIA or whoever is the owner of that information.”
I think this case is being run by the Masters of the White House: The Muslim Brotherhood thugs!
CGW says
Somebody should shear that guy’s head and make a sweater.
Inchoate says
RE:
“I am not in favor of the massive surveillance that the NSA is currently conducting, collecting all our phone calls, emails, and text messages.”
Then what would Mr Spencer suggest we do instead in order to get clues as to who is contacting who over which numbers in which countries? Perhaps we shouldn’t be looking for such clues at all?, but should wait for the explosions?, and then try to figure out who was contacting who using which method?
The Israelis are very, very effective in fighting our common Muslim enemy. I have no way of knowing what exactly they do in which circumstances, but clearly it works, and they certainly know who to handle this nasty new warfare. They “Profile” very well. I haven’t been inside Ben Gurion airport in recent years, but I don’t think that they grope Grandma and her colostomy in order to be “fair” and grope everybody, everybody, and not single out and hurt the feelings of anyone.
Our worldwide Muslim enemy doesn’t abide by such trivia as “Conventions” and “Agreements”, they go for our throats, all of our throats, whenever they can.
We should do exactly the same thing, their throats are made just like ours. They would understand.
Nineteenth and twentieth century formal International Conventions and International Agreements are useless against our current trans-national, multi-national, un-uniformed Muslim enemy who is mingling in the squares and standing right there next to you and me while we watch the parade. They smirk at our International Agreements.
So, what should we do instead to find these barbaric guys [and some gals] before their explosions erupt?
C. Mccoy says
Let me get this right, you can spy on innocent Americans but, you can not get court records of someone accused or convicted of a crime, (islamic in nature of course) we don’t want to upset our enemies, do we??? I say hell yeah!! They do horrible things to us. Attack us on our own military bases where a soldier can not wear a gun. That is an oxymoron if I ever heard one. Please tell me what is happening to our country??? Evil has implanted itself and is growing out of our control. Thank God it is not out of his control!!!!! And also thank God that He is the One True GOD (Jesus Christ)!! No other god compares with Him!!!! If you have a problem with that I’m telling you what He has said and I believe every word He says He has never lied to me this far so I’m sticking with HIM!!!!! I pray that He will heal this land and He would if we gave our hearts back to HIM. Are you ready?????