Court Says Feds Don't Have To Reveal Secret Evidence It Gathered Against 'Terror' Suspect Using FISA
from the due-process-what? dept
However, the case has been taking some interesting turns. Late last year, when the Senate was "debating" the renewal of the FISA Amendments Act (a key part of the NSA's surveillance program), Senator (and Senate Intelligence Commission boss) Dianne Feinstein pointed to the Daoud case as evidence for why the FAA needed to be renewed, claiming directly that the FISA Amendments Act was used to stop "a plot to bomb a downtown Chicago bar."
Given that, Daoud's lawyers sought access to the evidence that was obtained via the FISA Amendments Act. This is basic due process. Someone who is accused of a crime is supposed to have access to all of the evidence that was used against him. That was back in May, before the Snowden leaks, and before the revelations that the NSA and other agencies have used questionable surveillance methods to tip off other agencies of people to target, and then had them "launder" the evidence by trying to recreate evidence obtained in a more legal fashion to use against them -- also known as "parallel construction."
Back on August 9th, Daoud's lawyers made a much more thorough request for the evidence obtained via the FAA. As they note, there may be significant problems with the FISA information, including, but not limited to the FISA application for electronic surveillance may fail to establish probable cause that Dauoud was "an agent of a foreign power." As they note, he was an American citizen and high school student in suburban Chicago. They also suggest the FISA application may have contained material falsehoods or omissions and might violate the 4th Amendment. The surveillance also may have violated the FISA law. There are many other reasons they bring up as well.
The Justice Department (of course) argued that it shouldn't have to hand over any of this info, in part because it's classified and in part because they're not going to use that evidence against Daoud.
Unfortunately, the court wasted little time in agreeing with the feds that they don't need to turn over the evidence collected under FISA.
This is troublesome on a variety of levels. First of all, it seems like a clear due process violation, in which you're supposed to be able to see the evidence used against you. Second, it's a victory for "parallel construction," effectively giving the feds a green light to launder illegally obtained evidence, using it to "construct" legitimately obtained evidence. But, more directly, this issue was raised a few months ago, because the US Solicitor General had told the Supreme Court that any defendant who had FISA-collected evidence used in their arrest would have standing to challenge FISA because the government would have to disclose it. And, after it came out that the government wasn't disclosing it, the DOJ promised that, going forward it would provide such information.
Except that it's not doing so here. This is tremendously sketchy. As others are noting, if the evidence was legally obtained and really showed potential threats, why would they hide it?
The government’s successful attempt to keep the surveillance secret in the Daoud trial suggests that it either lacks confidence in the constitutionality of the spying or the Justice Department is still struggling to embrace the greater transparency on surveillance recently promised by the Obama administration—or both.And, on top of that, the court has now sanctified this whole practice of abusing surveillance to spy on people, and then laundering the evidence so no one can challenge it. This is terrible, and hopefully an appeal on this particular issue is forthcoming.