Judge in Chicago terrorism case lets defense view government secret surveillance application

Associated Press + More

By MICHAEL TARM, Associated Press

The Associated Press
FILE - This undated file photo provided by the U.S. Marshal's office shows Adel Daoud, of Hillside, Ill. At a pretrial ruling Wednesday, Jan. 29, 2014, in the terrorism case against Daoud, a federal judge in Chicago agreed to let the defense view government applications submitted to a foreign intelligence court seeking permission to conduct secret surveillance, in what the judge says is a first. Daoud has denied seeking to detonate a bomb in Chicago in 2012. The defense has pressed for details on how investigators employed the kind of phone and Internet spying revealed by ex-government contractor Edward Snowden. (AP Photo/U.S. Marshal's office, File)

CHICAGO (AP) — The government can't keep secret its request to conduct clandestine surveillance of an accused attempted terrorist, a federal judge ruled on Wednesday in a potentially far-reaching decision that gives defense attorneys unprecedented access to records filed with a secret intelligence court.

The ruling is the first time defendant's lawyers will be given access to an application prosecutors submitted to the Foreign Intelligence Surveillance Court, or FISA, which was established in 1978 to monitor spying within in the United States, U.S. District Judge Sharon Johnson Coleman said.

Judge Coleman's decision Wednesday is a rare win for the defense, which has pressed for the government to shed more light on how investigators might have employed the kind of phone and Internet spying revealed by ex-government contractor Edward Snowden.

Her pretrial ruling is in the case of 20-year-old Adel Daoud, a U.S. citizen from suburban Chicago. He 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.

The decision means defense attorneys should be able to challenge prosecutors on the substance of the application, though not in public. Prosecutors had wanted the judge to follow established practice and view the secret application herself behind closed doors — with prosecutors there, too, but with the defense locked out on security grounds.

Some observers said opening those applications to review in a criminal case could set a dangerous precedent. The documents can run more than 50 pages.

"The FISA applications have some of the most sensitive information there is about intelligence sources and methods," said Ken Wainstein, a former adviser to President George W. Bush for Homeland Security and Counterterrorism. "If that information routinely got into the hands of people outside the intelligence community and the judiciary, it could compromise national security."

Coleman's is just one of several rulings to touch on a hotly debated issue of secret surveillance.

Late last year, a federal judge in Manhattan upheld the legality of the phone records collection program, while another federal judge in Washington, D.C., earlier concluded it was likely not constitutional.

In her ruling, Coleman said the best place to determine whether the proposed surveillance was proper is through the court system, where defense attorneys are able to see the evidence against their client. She called it the "bedrock" of the Sixth Amendment's guarantee that defendants will get a fair trial.

In a related ruling earlier this month, Coleman said prosecutors did not have to disclose, one way or the other, whether the kind of expanded surveillance as revealed by Snowden was used to tip investigators off about Daoud. But the application related to Daoud could potentially indicate what led investigators to decide Daoud should be scrutinized further, be it an informant or the expanded surveillance.

In an email reacting to Coleman's ruling, Daoud's lead attorney, Thomas Durkin, called it a "historic, courageous and very meaningful ruling to preserve the integrity of the adversarial process."

The U.S. attorney's office in Chicago declined any comment on the ruling. They would have the option of appealing the decision to the U.S. 7th Circuit Court of Appeals in Chicago sometime prior to Daoud's trial, which is scheduled to begin on April 7.

In her five-page opinion, the judge notes one of the government's arguments for not offering their courtroom adversaries access to applications submitted to the FISA court, was that it had never been done before.