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 Hillside 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.
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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.
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 "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. attorneys 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."
Not surprisingly, 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 FISA court, which was set up as a check on government surveillance in the United States, became a focus of scrutiny after former National Security Agency contractor Edward Snowden revealed expanded phone and Internet spying.
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.
The 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."