How Dianne Feinstein Misled Congress About How 'Useful' NSA Spying Authorities Were In Stopping Plots

from the say-what-now? dept

We've been following the case of Adel Daoud for a little while now. He's one of the many people arrested for "terrorism" in one of the FBI's dozens of "home grown plots" in which they create their very own terrorist plot, dupe someone into "joining" and then arrest (and then relish in the headlines about stopping a terrorist "plot" that was never a real plot in the first place). In Daoud's case, the made up "plot" involved blowing up a Chicago bar. But the Daoud case got a lot more attention, because in the big "debate" over the renewal of the FISA Amendments Act (FAA) in late 2012, Senator Dianne Feinstein directly described the Daoud "plot" as an example of why the FAA and Section 702 were necessary. Here's what she said:

There is a view by some that this country no longer needs to fear attack. I don't share that view, and I have asked the intelligence committee staff to compile arrests that have been made in the last 4 years in America on terrorist plots that have been stopped. There are 100 arrests that have been made between 2009 and 2012. There have been 16 individuals arrested just this year alone. Let me quickly review some of these plots. Some of these may arrests come about as a result of this program. Again, if Members want to see the specific cases where FISA Amendments Act authorities were used, they can go and look at the classified background of these cases.

First, in November, 1 month ago, two arrests for conspiracy to provide material support to terrorists and use a weapon of mass destruction. That was Raees Alam Qazi and Sheheryar Alam Qazi. They were arrested by the FBI in Fort Lauderdale, FL. The next case is another conspiracy to provide material support. Arrested were Ralph Deleon, Miguel Alejandro Santana Vidriales and Arifeen David Gojali. These three men were planning to travel to Afghanistan to attend terrorist training and commit violent jihad; third, was a plot to bomb the New York Federal Reserve Bank; fourth, a plot to bomb a downtown Chicago bar; fifth, a conspiracy to provide material support to the Islamic Jihad Union; sixth, a plot to carry out a suicide bomb attack against the U.S. Capitol in February of 2012; seventh, a plot to bomb locations in Tampa, FL; eighth, a plot to bomb New York City targets and troops returning from combat overseas; ninth, a plot to assassinate the Saudi Ambassador to the United States; and it goes on and on and on.

So I believe the FISA Amendments Act is important and these cases show the program has worked

That caught the attention of a bunch of folks, because nowhere in Daoud's case had the government suggested it had obtained or used evidence via the FAA -- leading to serious questions about whether the government had been withholding evidence or if that evidence had been unconstitutionally obtained. Unfortunately, Daoud's attempt to get access to whatever evidence has been collected on him has been shut down by the courts. Judge Richard Posner issued a "supplemental classified opinion" to go with the original opinion we wrote about, but parts of that opinion have been released as well. Very large portions of it, however, remain totally redacted. What remains more or less says that the government did everything in a proper way and there were no constitutional problems. It also implies there was a ton of evidence pointing to Daoud's activities.

However, what caught my attention in the unredacted snippets of the ruling is Judge Posner basically claiming that Feinstein's claims about Daoud's case involving the FAA didn't actually mean the FAA was used:

The defendant's challenge relies primarily on a December 27, 2012 Senate floor speech by Senator Feinstein, who said: "There have been 16 individuals arrest[ed] just this year alone. Let me quickly just review what these plots were. And some of them come right from this program [meaning the FAA]. The counter-terrorism come[s] -- and the information came right from this program. And again, if members want to see that, they can go and look in a classified manner.... Fourth, a plot to bomb a downtown Chicago bar...." (emphasis added) (visited July 11, 2014).

The referenced "plot" is obviously the defendant's, and because the Senator used the examples to support the reauthorization of the FAA, the defendant not unreasonably interpreted her remarks to mean that the FAA had been used in his case. But an equally reasonable interpretation of the Senator's remarks is that she was merely saying that the defendant was one of the 16 individuals who had been arrested in 2012, same of whom had been arrested on the basis of such information. The Senate's Legal Counsel confirmed in a letter to defense counsel that "Senator Feinstein did not state, and did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including [the defendant's] case, in which terrorist plots had been stopped.... Rather, her purpose in reviewing several recent terrorism arrests was to refute the "view by some that this country no longer needs to fear attack.'"

Reading the original quote, Posner is correct that before Feinstein lists the examples, she adds the caveat that "some" of them "may" have used the FAA. But she also concludes it by insisting that these prove that the FAA worked. If anything, this ruling highlights just what a disingenuous and deceiving speech Feinstein gave during the debate over the FAA. Any reasonable person listening to that speech would hear that and believe that this program (the FAA and its 702 surveillance program) was the key to breaking up all of those "plots." After all, the entire debate was about renewing the FAA.

And yet, now it's quite clear that Feinstein was just listing out any and all "plots" (and even that is not really accurate since so many, including Daoud, were plots created by the FBI itself, meaning they never needed the FAA anyway), and falsely implying the FAA was necessary to break them up. Feinstein's scare-mongering over what would happen without a renewal of the FAA was a big part of why it passed, and as this ruling more or less confirms, she completely mislead others in Congress and the American public about it.

Filed Under: adel daoud, dianne feinstein, fisa amendments act, fud, nsa, richard posner, section 702, surveillance, terrorism

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.

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.

And, voila, the secret law and secret courts and secret evidence continue unabated...

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.

Filed Under: adel daoud, doj, evidence, fbi, fisa, franks hearing, richard posner, secrecy, terrorism

Court Calls A Do Over In Terror Hearings After Failure To Record

from the are-they-allowed-to-change-arguments? dept

We covered how court staffers, totally spooked by FBI agents sweeping the court room for recording devices, failed to record the public portion of oral arguments in an important terrorism case (against Adel Daoud), meaning that there was no official recording or transcript of the hearing (part of which was also held in secret). But now, the court has called for a rare "do over" on the public portion of the hearing.

A federal appeals court in Chicago has rescheduled oral arguments in a terrorism case after courtroom staff failed to record a significant hearing.

The U.S. 7th Circuit Court of Appeals issued a notice on Friday saying it would rehear arguments June 11 in the case against Adel Daoud, who's accused of trying to set off a bomb near a Chicago bar in 2012.

So, um, what? The original was a dress rehearsal? Do they get to make different arguments, or are they expected to basically repeat the script they did a week earlier? Will it play out like an awkward re-enactment? And, most importantly, will Judge Posner, once again yell "Look! You answer my questions, not your questions!" at the lawyers?

Filed Under: 7th circuit, adel daoud, appeals court, do over, doj, fbi, recording, richard posner

Courtroom Staff, Freaked Out By FBI Agents, Failed To Record Important Terrorism Court Hearing

from the spooked dept

We just wrote about the hearing in the 7th Circuit appeals court concerning accused terrorist Adel Daoud, highlighting how Judge Richard Posner had turned it into a secret hearing, kicking everyone but DOJ officials out of the courtroom at one point. One of the reporters in the room (prior to being kicked out), Michael Tarm, had tweeted that everyone should look for the recording of the oral arguments on Thursday "if only to hear Posner" yell: "Look! You answer my questions, not your questions!"

Except, if you looked, you would never find that recording. Because it doesn't exist. The court clerk, who's been doing this for 25 years, says his staffers "goofed" and failed to record the hearing at all, in large part because they were so spooked by FBI agents crawling all over the court room for hidden microphones.

Though hearings before the 7th U.S. Circuit Court of Appeals are routinely recorded and published on the court's website, Court Clerk Gino Agnello admitted Thursday his staff "sort of freaked out" before Wednesday's hearing in the case of alleged wannabe South Loop bar bomber Adel Daoud.

Court staff who operate the audio recorder saw FBI agents sweep the courtroom for bugs and "misinterpreted" that to mean they shouldn't record the hearing, Agnello said.

And, of course, because these hearings are normally recorded, there was no one there to do standard stenography. Instead, the transcript is often written up after the fact... based on the recording. Ooops. Except, you know, not "oops." This is a pretty big screw-up, considering the importance of our supposedly "open" judicial system. Daoud's lawyer, Thomas Durkin, properly points out that "this is what happens when people get scared," and shows how difficult it is to have a fair trial when so much is "driven by fear-mongering."

Filed Under: 7th circuit, adel daoud, court clerk, doj, fbi, recording, richard posner, secret hearings

Secret Trials: UK Holds A Secret Terror Trial, As US Appeals Court Holds Secret Hearing In Terror Case

from the open-justice dept

To have a functioning judiciary in an open democracy, part of the point is to make sure that court proceedings are open to the public. Yes, there may be certain instances where certain aspects must be kept secret, but the default should be open and public. Unfortunately, in both the US and UK this week, it appears that when it comes to the bogeyman word "terrorism," courts are willing to go dark. The more serious situation is over in the UK, where it has just come out that a secret terrorism trial is being held -- the first one in centuries. Even the names of the two defendants are not known (they're listed as merely AB and CD). Journalists had even been barred from mentioning the existence of the trial, until a gag order was just overturned. Note that the Guardian's page linked above had to turn off comments for legal reasons. Journalist Tim Cook has also spoken out eloquently about why this cannot stand.

I cannot say how broken-hearted I am about the prospect of a major criminal trial involving two men charged with serious terrorism offences being held entirely in secret for the first time in modern British legal history. I have spent my entire journalistic life campaigning against courtroom secrecy and this represents a nadir and indication of abject failure.

But the proposal is being contested by the process of law; albeit very limited and garrotted by the lack of a constitutional paradigm for freedom of the media and expression. We have been paying the price for not having a First Amendment for many years. Now we are entering the endgame of something beyond the dissolution of open justice.

Meanwhile, back here in the good, old United States, where we do have a First Amendment, at least we know that Adel Daoud is on trial. But the 7th Circuit Court of appeals kicked everyone out of the courtroom to hold a "secret hearing" with just the DOJ. As we wrote a few months ago, Daoud's lawyers are asking to actually see the FISA court orders that were used to gather evidence against their client -- and the DOJ is flipping out about that. While some of the hearings were held openly, at one point, Judge Richard Posner abruptly kicked everyone but the DOJ out, including Daoud's lawyers.

As the arguments concluded, Judge Richard Posner announced the public portion of the proceedings had concluded and ordered the stately courtroom cleared so the three-judge panel could hold a “secret hearing.” Daoud’s attorney, Thomas Anthony Durkin, rose to object, but Posner did not acknowledge him. Deputy U.S. marshals then ordered everyone out – including Durkin, his co-counsel and reporters.

Only those with the proper security clearance -- including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials – were allowed back in the courtroom before it was locked for the secret session.

Some reporters tried to ask what was going on, but Posner simply told them "No!" and kicked them out. Daoud's lawyer was similarly perplexed:

“Not only do I not get to be there, but I didn’t even get to object,” Durkin said. “I had to object over the fact that I couldn’t even make an objection.”

As the article notes, this is highly unusual. While in national security cases, certain information may be filed under seal, or certain portions may be held "in camera" without reporters or the public, it's not at all common to have just one side present. And while you may say that it makes sense in this case, where the three judge panel has to determine whether or not it's appropriate to share the FISC orders with Daoud's lawyers, it's still somewhat troubling to see the ease with which secret court proceedings may occur.

Filed Under: adel daoud, richard posner, secret trials, terrorism, uk, us

DOJ Flips Out That Evidence Gathered Via FISA Orders Might Be Made Available To Defendants

from the of-course-they-do dept

Last summer, we wrote about the case of Adel Daoud, an American teenager who was caught in one of the FBI's home grown plots. Even before the whole Snowden situation broke, late in 2012 when the Senate was "debating" (and I use that term loosely) the renewal of the FISA Amendments Act (which created Section 702, the key piece of the PRISM program), Senator Dianne Feinstein strongly fought for the renewal... using Daoud's case as an example of where Section 702 was a key component in stopping terrorism -- saying that it was necessary in "a plot to bomb a downtown Chicago bar." That describes the Daoud case, if by "plot" you mean Daoud and a bunch of undercover FBI agents creating a plan that was never actually going to happen.

Feinstein's admission that the FISA Amendments Act was used in the Daoud case took his lawyers by surprise, since none of the evidence they'd been shown involved that. His lawyers then asked for access to the evidence that was obtained via the FAA. After the Snowden revelations (including how information obtained via FISA is often "laundered" to various law enforcement agencies to keep it out of court), his lawyers got even more aggressive. While their initial shot failed, in January, Judge Sharon Coleman decided that, assuming (as claimed) Daoud's lawyer had security clearance, he should be able to see the FISA related materials. As she noted:

While this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds that the disclosure may be necessary. This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. 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. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment.... Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. “The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.”

It won't take a psychic to guess what happened next. A few days ago, the DOJ appealed this order explaining a theoretical parade of horrors that might happen if a lawyer with security clearance were given access to the evidence against his client.

But a court’s preference for the adversarial process—a circumstance that exists in all litigation—cannot serve as a basis for declaring that disclosure of FISA materials is “necessary to make an accurate determination of the legality of the surveillance” under the statute. Congress envisioned that FISA litigation be handled ex parte, in camera, with disclosure the rare exception.... Yet the district court’s reasoning would turn that regime on its head. A court could always say that an adversarial proceeding would be the “best” way to determine the legality of the FISA collection. To compel disclosure on that basis would trivialize FISA’s necessity standard and work a sea change in FISA litigation.

Right. How dare anyone think that it might be reasonable or sensible for courts to make sure that lawyers representing clients who were involved in plots created by the FBI actually get to see the secret evidence that the FBI got via a FISA court order? Why, due process might break out! And we're the US government. Can't have that!

Furthermore, the DOJ is positive that the courts simply don't understand the security issues, and the judge shouldn't worry about such things, because the smart people in the executive branch can decide for themselves which classified surveillance efforts are appropriate to reveal:

The district court also misjudged the damage to national security that could result from disclosing the FISA applications and orders, even to cleared defense counsel under a protective order, as substantiated by declarations from the Attorney General of the United States and the Acting Assistant Director of the FBI for Counterterrorism. A “need-to-know” must exist before classified information may be disclosed, even to those who possess a security clearance, and that essential prerequisite is present only where disclosure to defense counsel is “necessary” for a court to adjudicate the legality of the FISA collection.

When viewed under the correct “necessity” standard, nothing about the challenged FISA collection justifies the district court’s outlier decision. As the classified record makes clear, the ex parte process that the statute provides readily permits an accurate determination that the FISA collection was lawful, and the defendant’s allegations to the contrary are unfounded. A court reviewing the applications would have no difficulty determining that they established probable cause to believe the target was an agent of a foreign power and that a significant purpose of the collection was to obtain foreign intelligence information.

This all seems... completely bogus. But what makes it especially bogus is that after it came out that the Solicitor General, Donald Verrilli made false statements to the Supreme Court about whether or not defendants in such cases would be told about evidence collected via the FISA process, the DOJ promised that it would start letting defendants know when the FISA process was used in the investigation. Yet, what the DOJ's response here shows, is that even when that's the case, the DOJ will do everything possible to keep the details of what was done via FISA (and whether or not it was legal or appropriate) out of the case.

Filed Under: adel daoud, doj, evidence, fbi, fisa, home grown plots, nsa, own plot, surveillance

Court Says Feds Don't Have To Reveal Secret Evidence It Gathered Against 'Terror' Suspect Using FISA

from the due-process-what? dept

Adel Daoud is an American teen who was arrested last year in one of the FBI's many infamous home grown plots, in which FBI agents entice people into claiming they want to take part in a terror plot, plan the whole thing, give the person a fake bomb, and then arrest them. In this case, the "plot" which only involved Daoud and a bunch of FBI agents, was supposedly to bomb a Chicago bar. Daoud had no actual way of doing this until the FBI showed up and "helped." And then arrested him and celebrated, while admitting the public was "never at risk." Well, duh.

However, the case has been taking some interesting turns. Late last year, when the Senate was "debating" the renewal of the FISA Amendments Act (a key part of the NSA's surveillance program), Senator (and Senate Intelligence Commission boss) Dianne Feinstein pointed to the Daoud case as evidence for why the FAA needed to be renewed, claiming directly that the FISA Amendments Act was used to stop "a plot to bomb a downtown Chicago bar."

Given that, Daoud's lawyers sought access to the evidence that was obtained via the FISA Amendments Act. This is basic due process. Someone who is accused of a crime is supposed to have access to all of the evidence that was used against him. That was back in May, before the Snowden leaks, and before the revelations that the NSA and other agencies have used questionable surveillance methods to tip off other agencies of people to target, and then had them "launder" the evidence by trying to recreate evidence obtained in a more legal fashion to use against them -- also known as "parallel construction."

Back on August 9th, Daoud's lawyers made a much more thorough request for the evidence obtained via the FAA. As they note, there may be significant problems with the FISA information, including, but not limited to the FISA application for electronic surveillance may fail to establish probable cause that Dauoud was "an agent of a foreign power." As they note, he was an American citizen and high school student in suburban Chicago. They also suggest the FISA application may have contained material falsehoods or omissions and might violate the 4th Amendment. The surveillance also may have violated the FISA law. There are many other reasons they bring up as well.

The Justice Department (of course) argued that it shouldn't have to hand over any of this info, in part because it's classified and in part because they're not going to use that evidence against Daoud.

Unfortunately, the court wasted little time in agreeing with the feds that they don't need to turn over the evidence collected under FISA.

This is troublesome on a variety of levels. First of all, it seems like a clear due process violation, in which you're supposed to be able to see the evidence used against you. Second, it's a victory for "parallel construction," effectively giving the feds a green light to launder illegally obtained evidence, using it to "construct" legitimately obtained evidence. But, more directly, this issue was raised a few months ago, because the US Solicitor General had told the Supreme Court that any defendant who had FISA-collected evidence used in their arrest would have standing to challenge FISA because the government would have to disclose it. And, after it came out that the government wasn't disclosing it, the DOJ promised that, going forward it would provide such information.

Except that it's not doing so here. This is tremendously sketchy. As others are noting, if the evidence was legally obtained and really showed potential threats, why would they hide it?

The government’s successful attempt to keep the surveillance secret in the Daoud trial suggests that it either lacks confidence in the constitutionality of the spying or the Justice Department is still struggling to embrace the greater transparency on surveillance recently promised by the Obama administration—or both.

And, on top of that, the court has now sanctified this whole practice of abusing surveillance to spy on people, and then laundering the evidence so no one can challenge it. This is terrible, and hopefully an appeal on this particular issue is forthcoming.

Filed Under: adel daoud, doj, evidence, fbi, fisa, nsa, nsa surveillance, terrorism