CHICAGO (CBS/AP) — A federal appeals court has ruled a 20-year-old terrorism suspect has no right to see classified documents regarding how evidence against him was gathered, reversing a trial court’s ruling that would have given him unprecedented access to FISA court records.
A three-judge panel of the U.S. 7th Circuit Court of Appeals handed down its ruling Monday, just days after federal prosecutors and defense attorneys argued about issues raised by National Security Agency leaker Edward Snowden regarding expanded U.S. surveillance of phone and Internet usage, and how the Foreign Intelligence Surveillance Court, or FISA court, secretly approved such spying.
In its Monday opinion, the appellate court agreed with prosecutors, who argued that letting Adel Daoud’s lawyers see the FISA court records — submitted as part of a warrant application — would endanger national security.
“Our own study of the classified material has convinced us that there are indeed compelling reasons of national security for (the records) being classified,” Judge Richard Posner wrote in the court’s opinion. The court was submitting a sealed, classified opinion along with the public one to explain further, he added.
Leonard Cavise, a law professor at DePaul University, said the appeals court decision was surprising.
“I don’t know of any case where … somebody has said ‘You got arrested pursuant to a search warrant, but we’re not showing you the search warrant,’” Cavise said.
Defense attorney Thomas Durkin, however, wasn’t surprised the judges ruled against him, given the judges’ questions during oral arguments.
“It certainly wasn’t a shock to us,” he said. “The opinion reads just like many of the questions that were posed during the oral arguments, so we’re not shocked that this is the outcome.”
Cavise said the 7th Circuit panel’s opinion sets the table for an appeal to either the full 7th Circuit, or the U.S. Supreme Court.
“If I were the defense counsel now, I would motion for a rehearing in banc, meaning this is such an important issue that I would ask that all the judges of the 7th Circuit listen to another argument about this, instead of just these three [judges],” Cavise said.
Durkin said he hasn’t decided the next step yet.
Daoud, a U.S citizen, has denied allegations he accepted a phony car bomb from undercover FBI agents, parked it by a Chicago bar and pressed a trigger. His trial is scheduled to start Nov. 10.
Durkin has said Daoud was working on a term paper about Osama bin Laden around 2012. The FISA records he wants to see, he’s said, could shed light on whether investigators flagged Daoud because of Internet searches regarding bin Laden.
But the risk, Posner wrote, wasn’t so much that Daoud’s attorneys could disclose national secrets contained in the FISA records intentionally.
“Though it is certainly highly unlikely that Daoud’s lawyers would, Snowden-like, publicize classified information in violation of federal law, they might in their zeal to defend their client … or misremembering what is classified and what not, inadvertently say things that would provide clues to classified material,” he said.
Since Congress created the FISA court in 1978, no defense attorneys had been told they could go through a FISA application — until Judge Sharon Johnson Coleman’s January 29 ruling in Daoud’s case.
Among Judge Coleman’s errors, Posner wrote, was her finding that allowing defense attorneys access to the FISA documents would help her thrash out what secret-court material was and wasn’t relevant to the case.
“The judge appears to have believed that adversary procedure is always essential to resolve contested issues, of fact,” he wrote. “Not only is federal judicial procedure not always adversarial — it is not always fully open.”
As an example, he noted that companies’ trade secrets are frequently concealed in judicial proceedings.
Later on Monday, Durkin said he strongly disagreed.
“The adversary system is the foundation of civil liberties in this country and this opinion drives another significant wedge into that time-honored process….” he said.
While concurring with the court’s overall decision, another of the three judges wrote separately Monday that she sympathized with the Catch-22 attorneys faced: They can only challenge the basis of a FISA-related warrant if they spot errors in it, but they can’t spot errors because they aren’t allowed to see it.
As the law is now, Judge Ilana Diamond Rovner agreed the burden was on a trail judge to sort out any discrepancies in the secret FISA records. But she added, “It remains for Congress and the Executive Branch to consider reforms that might address some of the concerns I have raised here.”
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