Court Rejects Request That Secret NSA Evidence Used Against Terrorism Suspect Be Shared With Suspect's Lawyers
from the secret-courts dept
We've been following the case of Adel Daoud, an American citizen charged with terrorism. He's one of the many, many folks that was arrested following one of the FBI's infamous home grown plots (i.e. he was never actually involved in any terrorism, as all of his "co-conspirators" were actually FBI agents or informants, and there was never any actual threat or chance that he'd pull off an actual terrorist attack). Back during the (pre-Snowden) debates on renewing Section 702 of the FISA Amendments Act, Senator Dianne Feinstein used Daoud's case as a specific example of when the program had been useful in stopping terrorism.That caught the attention of Daoud's lawyers, who noted that this was the first they'd heard of this, and it seemed pretty clear that the government had withheld the evidence that was used to bring Daoud to trial in the first place (which is, as you know, not really allowed). After asking for the evidence, the district court first said no, but then ordered that some of the documents being filed actually be shared with Daoud's attorneys (who have the necessary security clearances). The DOJ, of course, flipped out at this idea that the lawyers for someone they're trying to lock up forever should actually be able to see the evidence used against him and how it was collected.
This resulted in an appeals court hearing, which bizarrely had to happen twice after the FBI so scared court staff that they failed to record the public portion of the oral hearings. The hearings were also odd in that, at one point, everybody but DOJ folks and the judges were kicked out of the courtroom, raising serious questions about basic due process.
Unfortunately, Judge Richard Posner's ruling (right after coming out with his good ruling on the public domain) has found that the evidence does not need to be shared with Daoud's lawyers. He slams the district court judge for overreacting and over-valuing the concept of the "adversarial process" in the court room. Seriously.
The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact. That is an incomplete description of the American judicial system in general and the federal judicial system in particular. There are ex parte or in camera hearings in the federal courts as well as hearings that are neither or both. And there are federal judicial proceedings that though entirely public are nonadversarial, either partly or entirely.Posner basically says that the district court judge herself should have looked over the materials first, to determine if it makes sense to pass them on, rather than defaulting to saying that they should be shared with the lawyers. As such, he basically reveals that the "secret hearing" that was held was to go over the material with the appeals court judges, and they're satisfied that nothing needs to be revealed to Daoud's attorneys.
...our study of the materials convinces us that the investigation did not violate FISA. We shall issue a classified opinion explaining (as we are forbidden to do in a public document) these conclusions, and why therefore a remand to the district court is neither necessary nor appropriate.Posner also, not surprisingly, rejects the objection by Daoud's lawyers to that secret hearing, noting that it was necessary to determine if the DOJ lawyers were being fully honeset with the court:
Their objecting to the classified hearing was ironic. The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant.And, voila, the secret law and secret courts and secret evidence continue unabated...
Defense counsel’s written motion cites no authority for forbidding classified hearings, including classified oral arguments in courts of appeals, when classified materials are to be discussed. We don’t think there’s any authority it could cite.
For a very good analysis of this ruling, I recommend Steve Vladeck's take, in which he notes that Posner seems to (somewhat bizarrely) confuse sharing details with Daoud's lawyers in secret, with "openness" to the public. As Vladeck notes, the district court judge recognized that not everything had to happen publicly, but was (reasonably) concerned that just having a judge look over the secret FISA court ruling would not be sufficient, since the judge would not have the same view as the defense attorneys. Posner seems to ignore or misinterpret all of that.
The problem, from Judge Coleman’s perspective, is that it may not always be possible for a district judge to determine whether disclosure is necessary (as opposed to whether it “may be necessary”) without the benefit of adversarial presentation. That is to say, § 1806(f) conditions the disclosure of classified FISA materials to a defendant (or, at least, his security-cleared counsel) upon a finding by the district judge that may, in some cases, only be possible with defense counsel’s participation. This is why, in her order mandating disclosure, Judge Coleman devoted so much of her energy to the importance of adversarial proceedings, especially in criminal cases—not because all proceedings in U.S. courts are adversarial (they’re not), but because, in this context specifically, adverse-ness makes it easier for a judge to have faith that she is comporting with her statutory and constitutional obligations.
But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: adel daoud, doj, evidence, fbi, fisa, franks hearing, richard posner, secrecy, terrorism
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
http://www.bbc.co.uk/news/uk-27806814
not that they wont try, and try again until they get their way of course.
All this makes me wonder who the real terrorists are.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Purile Corruption and Anti-American
If the defendant or their lawyers cannot see the evidence then such evidence should be stricken from the record with prejudice!
[ link to this | view in chronology ]
Re: Purile Corruption and Anti-American
I wonder if an attorney, acting as an officer of the court, can find the JUDGE in contempt?
[ link to this | view in chronology ]
Re: Re: Purile Corruption and Anti-American
Sadly, no - rather I don't think so, the court system working as it does. Agreed: there should be SERIOUS repercussions in this instance - this decision is a clear violation of the principles enshrined in the Constitution and the oath (or affirmation) any judge makes in taking up the office - carry out the duties incumbent on him/her under the Constitution. 28 U.S.C. 453.
[ link to this | view in chronology ]
Never ending
[ link to this | view in chronology ]
That's the only way that this makes sense - an out-of-control agency, power-mad, decides to fuck over someone 'to make an example of them'.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Did probable cause come from a witness calling up the FBI? Did it come from a phone or email interception? If so, was a warrant issued before the interception took place?
There's absolutely no reason to hide such broad details in any trial. Unless the disclosure of these broad details would invoke outrage in the American public.
I personally believe Adel Daoud made a telephone call, or emailed someone outside the United States. Not necessarily to a terrorist phone number on the NSA's watch list. Just to someone with a Middle East area code.
The NSA intercepted this phone call without a warrant. Tipped off the FBI to investigate him. Then gave Adel Daoud a little terror test through the use of entrapment, in order to help speed up the investigation.
Let this be a lesson to us all. If you make a telephone call outside the US boarder, send an email, or post on a website. The NSA is intercepting that communication without a warrant, listening to it, and will use anything you say or do against you in a secret court of law.
That's my takeaway from hearing about this secret legal system in action. I couldn't actually see it in action, because it all took place in secret, but I heard about it through rumors.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
*sigh*
[ link to this | view in chronology ]
Re: *sigh*
[ link to this | view in chronology ]
Re: *sigh*
[ link to this | view in chronology ]
Re: *sigh*
[ link to this | view in chronology ]
Re: Re: *sigh*
Prior to that, I believed that the US was, on the whole, a force for good. Far from spotless -- I'm well aware of all the various nasties the US has done -- but generally about as good as anyone can reasonably expect.
[ link to this | view in chronology ]
Wouldnt be surprised if they were still looking for any credible evidence against this guy
[ link to this | view in chronology ]
Simple remedy
Evidence exists against the defendant. It was derived from secret sources. It was as basis to acquire other evidence.
The evidence is too secret for anyone (judge or defendant) to see.
The Sixth Amendment requires that, "In all criminal prosecutions, the accused shall enjoy the right to [...] be informed of the nature and cause of the accusation," and "In all criminal prosecutions, the accused shall enjoy the right to [...] be confronted with the witnesses against him."
So the evidence is inadmissible, all being either of the poison tree or of its fruit. Dismissed. Defendant goes free.
Simple.
[ link to this | view in chronology ]
Re: Simple remedy
But every scrap of evidence of that synthetic crime was gained because of that initial secret evidence. Oops.
A car search that only occurred because of an illegal traffic stop is thrown out on that basis, and this is no different.
If the evidence that they had probable cause to make the stop in the first place is inadmissible...well...oops.
[ link to this | view in chronology ]
Posner pretends the 6th Amendment doesn't exist
[ link to this | view in chronology ]
Please end the Star Chamber.
Sincerely,
Every citizen of the United States of America
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Just keep coming back to this - over & over & over
-Adolf Hitler
[ link to this | view in chronology ]
When kangaroos rule the courts...
[ link to this | view in chronology ]
Authority? What Authority?
Well, except for that pesky bit about due process in The U.S. Constitution. But we don't really consider The Constitution to be very authoritative these days anyways.
[ link to this | view in chronology ]
Mistrial?
[ link to this | view in chronology ]
The terrorists have already succeeded!
[ link to this | view in chronology ]