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.

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Comments on “DOJ Flips Out That Evidence Gathered Via FISA Orders Might Be Made Available To Defendants”

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That One Guy (profile) says:

Time for an ultimatum it would seem

The court should tell the DoJ they have two options, they can either:

A) Allow both prosecution and defense to see all evidence being used, in which case they’re allowed to use evidence gathered via the FISA collection.


B) Keep secret/classified any evidence gathered via FISA authorized collection, in which case they are completely and utterly barred from using it in court, no matter how relevant it otherwise would be to their case.

Of course that still leaves the problem of evidence ‘gathered’ via parallel re-construction, so should they take that option, just to be sure bar them from presenting any evidence and throw the freakin’ case out as the disgrace to justice it is.

When the prosecution is allowed to present classified evidence that the defense can not refute or even view due to it’s classified nature, the idea of ‘justice’ goes clean out the window, and the ‘trial’ is nothing more than a sham act to railroad the accused into jail.

Anonymous Coward says:

Re: Time for an ultimatum it would seem

Sounds like something out of a Phoenix Wright game. Only we don’t have anyone like Phoenix in real life, able to help the oppressed and innocent despite the insane hurdles. Because Phoenix never had to deal with rule changes of the speed and magnitude of real defense lawyers.

Christopher Best (profile) says:

Re: Time for an ultimatum it would seem

No, option B would be bad. If the prosecution has some evidence it used in building its case, it has to give it to the defense. Even though it may not use the evidence at trial, such evidence may have been improperly gathered, meaning anything gathered due to what the prosecution discovered in that initial illegal search is inadmissible.

Whoever says:

Time for an ultimatum it would seem

Option B presumes that none of the evidence is exculpatory.

Option B should be that the charges are dropped.

If you are going to allow parallel construction, then the onus should be on the prosecution to show the legitimacy of the parallel construction process for that case — traced all the way back to evidence that is completely unrelated to anything collected under FISA (or illegally collected by the NSA/FBI/etc.)

That One Guy (profile) says:

Re: Time for an ultimatum it would seem

I may have worded it poorly, but what I meant to say what that I don’t believe evidence ‘gathered’ via parallel construction should ever be admissible in court, so like you said, if they chose option B the case should be dropped, either make all the evidence available to both sides, or drop the case entirely.

Anonymous Coward says:

Re: Re: Time for an ultimatum it would seem

If they are going to allow evidence laundering does that then mean purchasing a legally obtained copy of media later absolves you of any charges pertaining to piracy? If prosecutors can reconstruct a collection method for evidence to suddenly make evidence that they gained through an illegal manner suddenly legal, then it seems fair to me that purchasing content that was gained through an illegal download would have to result in legitimizing that content.

And while we are at it we can through out any laws against money laundering as once the money is used in a legitimate transaction it is no longer tainted by a criminal activity either.

Anonymous Coward says:

Re: Time for an ultimatum it would seem

I said it before and I’ll say it again. We need to stop using the term “parallel construction” and call it what it really is – EVIDENCE LAUNDERING. 1. The right to be presented with and challenge the evidence being used against you is a crucial cornerstone of due process. 2. The mere fact that they are manufacturing a way of getting the evidence that they already had itself calls into question the legality of the evidence itself.

PRMan (profile) says:

Re: Re: Time for an ultimatum it would seem

If you are continuing to be a bad actor, then it’s fine that they are getting you using parallel construction.

Example: NSA finds out you are a drug dealer and alerts DEA. DEA watches you. You deal drugs again. You go to jail, but only for the second offense. This is no different than any other “anonymous” tip.

Example 2: A guy gives money to a terrorist organization once (maybe he was misled). The NSA lets the FBI know about it. They keep watching him, even begging him for funds. He never gives the funds. Are they going to get him for his first offense using parallel construction? If so, how?

Anonymous Coward says:

Re: Re: Re: Time for an ultimatum it would seem

Your argument is predicated on the dangerous mentality that the ends justify the means. Let’s take your second example. First problem: the term “terrorist organization” effectively means any organization that the government sees as a threat to their agenda not necessarily a threat to the people. Second problem since money is speech that is protected by the first amendment, wouldn’t that make the act of giving money to an organization that opposes your agenda a constitutionally protected act? Third problem, let’s say it’s actually one of these FBI fabricated things and the “terrorist organization” actually only exists in the FBI’s imagination. We have laws against entrapment and what actually happened is that the money was contributed to the FBI so unless we consider the FBI a terrorist organization (which I won’t argue with) no crime has actually been committed.

Zonker says:

Re: Re: Re:2 Time for an ultimatum it would seem

Reading your comment struck me with an odd thought: if money is speech protected under the First Amendment thanks to Citizens United, then how can the US make providing money to “terrorist organizations” a crime without violating those same First Amendment rights?

Anonymous Coward says:

Re: Re: Re: Time for an ultimatum it would seem

“Example: NSA finds out you are a drug dealer and alerts DEA. DEA watches you. You deal drugs again. You go to jail, but only for the second offense. This is no different than any other “anonymous” tip.”

Yes, it is different than any other ‘anonymous’ tip in that a government agency is blatantly violating the US Constitution in order to provide that ‘tip’.

Christenson says:

Circular argument alert!

From the article:
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.

If there’s no disclosure to the defense, the adjudication is simple: All evidence in the case is obtained illegally. See Judge Alsup’s recent opinion!

The feedback loop must be closed: If the government doesn’t play fair and square, the case must be irretrievably lost, preferably with the prosecutor’s name on the headline. No other remedy forces the people in the government to actually do their job.

Trevor says:


The right hand of the government tells the Supreme Court that secret evidence is OK to be collected because if it’s used in a criminal case, it will be shown to the defendant…

…While the left hand of the government tells this trial judge that it can’t allow the secret evidence to be revealed to the defendant in a criminal case, because it’s secret and reasons…

While the government laughs and laughs and laughs (and collects everything).

Anonymous Coward says:

Re: Duh

If the evidence is something that the accused has done, or said, then it is not secret from them, if it isn’t it is fabricated evidence. Any associates of the accused are likely to, and should act on the principle that their communication with the accused are known to the US government.Therefore keeping evidence secret only benefits the government if it is fabricated because the accused cannot refute it.

DannyB (profile) says:

My God how far we've come

Secret evidence that was obtained using secret warrants from secret courts.

Tech companies gagged from the mere existence of a secret subpoena from a secret court; never mind whether and how they responded to it.

People being tried on secret evidence.

Do we have people being tried in secret courts yet? (Don’t know. If we do, it’s a SECRET! Shhhh!)

The NSA run amok. They don’t even know what their private contractor had access to, or what he took. The CIA trying to intimidate congress.

Torture done in good faith.

Rampant, brazenly open corruption. At least politicians and lobbyists used to at least try to make it look somewhat respectable.

The US has changed pretty remarkably in the last 15 years.

Coyne Tibbets (profile) says:


I think there’s a simple tie-breaker that should be applied in all cases of this type. An indication that “laundering” of FAA-obtained evidence was used in a case should result in a ruling by the judge that all evidence in the case presumptively is fruit of a poison tree.

Then the government is given an opportunity to prove provenance of every element of the evidence and, only if they can prove the source of each element was constitutional, will it be ruled admissible.

This would be a variation of “beyond a reasonable doubt”: The government simply shows that the evidence was validly obtained beyond a reasonable doubt, then they can proceed. But this shouldn’t be used at random; only when “laundering” is suspected.

Of course, should it so desire, the government can simply show the constitutionally compliant FAA warrant for the evidence and move on.

Anonymous Coward says:

Re: Tie-breaker

No need for a tie breaker. There is no tie. Due process being subverted is more important for without it the entire base on which this country was founded gets flushed down the toilet meaning there is literally nothing left for them to defend. They are sworn to defend the Constitution not undermine it.

David says:

Where's the problem?

Presenting the evidence would apparently put the lives of lots of people at risk, so don’t present the evidence and let the purported plotter walk. That’s risking fewer lives, apparently.

The option preferred by the “Department of Justice” is “abolish justice and the parts of the constitution pertaining to it”. That’s not an available option for the executive branch. Their job description is following the law, not remodeling it.

Yes, that may make some things harder to do properly. They are not the only ones with constraints in their job.

If the person cannot be convicted in open court even while being a danger to the public, there is no need to worry. Uncle Obama will send off a well-targeted drone strike killing only a limited number of bystanders that cannot be smeared for terrorism in some manner.

That’s the way we do business in Pakistan, and Uncle Obama has made sure that he got the clearance to do this in the U.S. as well. The U.S. prisons are overpopulated anyway, and come to think of it, so are its cities.

ThatFatMan (profile) says:


It think it’s time at the State and Federal Level for some amendments to the various constitutions.

No person, or their legal representative, shall be denied access, for any reason, to any evidence against their person as a right of due process. Further, the right of full disclosure of any lawful decision, being fundamental to the function of a civil society, shall not be infringed.

Its a rough draft, but the idea is that evidence, as anyone might expect, must be disclosed. That is fundamental to an effective defense, and one that should be reinforced. The “For any reason” clause really is meant to say the government cannot rely in evidence that they aren’t willing to disclose, as that clearly violates due process. And finally, getting rid of secret courts is a no-brainer. Americans have a fundamental right, in my opinion, to know what their government is up to, free from redactions or other techniques employed to reduce the understanding of the public for the decisions that they are bound to.

Anonymous Coward says:

Re: Amendment

“…shall not be infringed”

These are meaningless words to the government just like “Congress shall make no law…” Besides, the problem isn’t that the laws are written to guarantee this. It’s in the fifth amendment:

“…nor be deprived of life, liberty, or property, without due process of law…”

and again in the fourteenth amendment:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The problem is that there is no accountability for ignoring them. Making new laws won’t help as they will simply ignore those as well since there is no consequence for doing so.

ThatFatMan (profile) says:

Re: Re: Amendment

I have to agree with you, it is in there. And it isn’t adhered to. And there is basically no penalty for not adhering to it. I think a part of the problem is that the law and our constitution are written in very broad and vague terms. What I was proposing was to clarify the language, to (hopefully) give the government less wiggle-room.

Lets face it, We The People need to do something to reign in our government that seeks to use our legal system as a tool to keep us in line while they run roughshod over us and our rights. Ultimately I am trying to start a dialogue on how do we fight back and take back control of our country and our lives?

Alsee says:

Here’s my view on “parallel construction” of evidence:
If the government is fabricating some “random traffic stop” or something to manufacture a parallel chain to find evidence in the car or whatever, that creates reasonable doubt that the evidence itself is fabricated. I’d go further and say that creates a presumption that the evidence is fabricated. If a fabricated “random stop” finds evidence in a car, that evidence was presumptively planted there to be found in that fabricated random stop.

A fabricated chain of evidence creates a presumption that the evidence itself is fabricated.

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