CHICAGO – Attorneys for a Chicago terrorism suspect are urging a federal appeals court to uphold a trial judge's decision to grant defense lawyers unprecedented access to secret intelligence-court records.
In their March appeal to the U.S. 7th Circuit Court of Appeals in Chicago, prosecutors said letting the defense see the Foreign Intelligence Surveillance Court documentation would be a "sea change" in how such sensitive documents are handled and could end up jeopardizing national security.
But attorneys for 20-year-old Adel Daoud argued in a Friday filing that the trial judge acted appropriately and didn't abuse discretion when ordering that the defense could see the documents. Daoud is a U.S. citizen from a Chicago-area suburb. Prosecutors say 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 Daoud has denied those allegations.
Former National Security Agency contractor Edward Snowden's revelations expanded U.S. phone and Internet spying raised the profile of such issues. And 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. 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.
But the government, in its 35-page appeal, described the documents as dealing with "exceptionally sensitive issues with profound national security implications" and said Coleman's ruling could set a dangerous precedent.
"The district court ... misjudged the damage to national security that could result from disclosing the FISA applications and orders," the appeal said. "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."
The prosecutors' filing also called 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.
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 an earlier, related ruling, Coleman said the prosecution 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.