Court Says Feds Don't Have To Reveal Secret Evidence It Gathered Against 'Terror' Suspect Using FISA

from the due-process-what? dept

Adel Daoud is an American teen who was arrested last year in one of the FBI's many infamous home grown plots, in which FBI agents entice people into claiming they want to take part in a terror plot, plan the whole thing, give the person a fake bomb, and then arrest them. In this case, the "plot" which only involved Daoud and a bunch of FBI agents, was supposedly to bomb a Chicago bar. Daoud had no actual way of doing this until the FBI showed up and "helped." And then arrested him and celebrated, while admitting the public was "never at risk." Well, duh.

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.








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    Jay (profile), Aug 30th, 2013 @ 5:33am

    Thank you double standard

    What was that phrase we're told?

    "If you aren't doing anything wrong, what do you have to hide?"

    So let me get this straight... The LEOs can take all of the relevant information, all of the drops in basic policing, and they can create terrorists, but they can't convict without information laundering?

    What are you hiding DoJ? The secrets are out. You don't represent the public. You represent bankers over activists. You represent a small minority and you convict the majority. You created a monster and now you don't want to show them due process?

    Does the state hierarchy need to be leaked in order to get you to come clean? Show the evidence. Give this man his due process.

     

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      Anonymous Coward, Aug 30th, 2013 @ 8:23am

      Re: Thank you double standard

      Nope, it needs burning and scrapping, as it';s no longer fit for purpose.

       

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      Hephaestus (profile), Aug 30th, 2013 @ 8:38am

      Re: Thank you double standard

      The issue here is, it would undermine not just this one case, but all the FBI "created terrorist" cases. It would show the FBI in a bad light, and they do not want another agency under the spotlight. NSA, IRS, etc ...

       

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    arkiel (profile), Aug 30th, 2013 @ 7:22am

    If what was said was: "if FISA information is used in a subject's arrest, the lawyer gets access to it," then it seems like parallel construction would 'launder' the information out.

     

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    out_of_the_blue, Aug 30th, 2013 @ 7:32am

    While I agree, it's a technicality: YELL TO JURY IT'S ENTRAPMENT.

    Lawyers are always weenie-ing over complex side issues while effectively surrendering to the simple main thrust. They fall for the fool's mate nearly every time. I expect that'll happen here.

    Oh, I suppose had to be tried, BUT the real problem is that defense attorneys (especially public defenders) NEVER actually believe that clients are innocent and fight on common law principles: they tend to facilitate a conviction (as was done in the Soviet Union, believe read that in Solzhenitsyn). In my opinion it's because they including judges are all members of and in thrall to the same medieval guild (complete with secret rituals: just ask one what "the Bar" is...) which controls their career path. Or they could just be craven cowards. Or abject weenies. In any combination. Anyway, never trust lawyers.

     

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      DCX2, Aug 30th, 2013 @ 9:13am

      Re: While I agree, it's a technicality: YELL TO JURY IT'S ENTRAPMENT.

      The only problem with claiming entrapment is that he had to show some resistance to their attempts at instigating his criminal acts, and then they have to overcome his resistance with some persuasion or coercion.

       

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    Anonymous Coward, Aug 30th, 2013 @ 7:58am

    "The Justice Department (of course) argued that it shouldn't have to hand over any of this info, in part because ... and in part because they're not going to use that evidence against Daoud."

    So just because the prosecution won't use some evidence means the defense isn't allowed to use the same evidence to prove their client isn't guilty?

    How would this work out in say a murder trial then, taking that logic to the extreme.

    Defense Lawyer: We would like to call to the witness stand a witness who saw the whole murder, and knows it wasn't my client who did it.

    Prosecution: We object! We weren't going to use that witness to convict your client, so you shouldn't be allowed to use it them to defend your client.

    Judge: Well, that sounds perfectly reasonable to me. Do you have any witnesses the prosecution has already called, or evidence the prosecution already used against your client, or are you ready to rest your case?

    Defense: But of course they're not going to call forth my witness! Their whole case will completely fall apart from her testimony. And I have other evidence showing that the prosecution fabricated all the evidence against my client.

    Prosecution: Well then you should have made sure that witness and that evidence was necessary for us to bring in to convict your client.

     

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    slinkySlim, Aug 30th, 2013 @ 8:09am

    When secrecy supplants justice there can be no justice and when there can be no justice there will be war.

    The regime of secrecy must fall. It must. That sort of "safety & security" has already gone much, much too far.

    We are no longer united.

     

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    silverscarcat (profile), Aug 30th, 2013 @ 8:16am

    Sheesh...

    The U.S. is a complete and total police state, isn't it?

     

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    DMC, Aug 30th, 2013 @ 8:17am

    Appeal

    I hope this gets appealed to the top. I'd like to see the SCOTUS take a crack at this (or have the Circuit reverse).

     

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      pixelpusher220 (profile), Aug 30th, 2013 @ 8:34am

      Re: Appeal

      Are you sure about that?

      Scalia isn't exactly going to be my choice for writing the overturning opinion...Or Thomas, Or Alito.

      That pretty well stacks the deck against the SCOTUS doing the correct thing here.

       

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        DCX2, Aug 30th, 2013 @ 9:17am

        Re: Re: Appeal

        Much as I dislike certain members of the Supreme Court, a careful analysis of Scalia's voting record would indicate that he very well could find that the defendant has a right to access all evidence. He's generally pretty adamant when a clear reading of the Constitution calls for one thing or another; check out Kyllo vs. United States, Scalia wrote that opinion.

         

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    Nigel (profile), Aug 30th, 2013 @ 9:18am

    Echk This Again

    "In this case, the "plot" which only involved Daoud and a bunch of FBI agents, was supposedly to bomb a Chicago bar. Daoud had no actual way of doing this until the FBI showed up and "helped." And then arrested him and celebrated, while admitting the public was "never at risk." Well, duh."

    That reads like something you would find on The Onion. To my dismay its actually true.

    N.

     

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    Paul, Aug 30th, 2013 @ 9:23am

    Entrapment

    Entrapment only works when an authority abuses his position to make you do something illegal.

    AKA you are drunk at a bar, a cop comes in and then orders you to go home, then the cop orders you to move your car, finally he arrests you for DUI.

    This is classic entrapment because the only reason you were moving your car was because the cop knew you were drunk, and ordered you to move your car, and finally arrested you for actions he ordered you to take.

    The FBI case is not like this, in this case the FBI did not come out and say they were FBI, they simply trolled message boards and found people who were on edge, then said they could provide explosives. As such the FBI was fishing for the largest charge by failing to arrest people early on and instead waiting for them to do something larger. Because early on arrests are often tossed out in court.

     

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      James Burkhardt (profile), Aug 30th, 2013 @ 9:42am

      Re: Entrapment

      Except, as we are arguing, the FBI wasn't doing that. They supposedly got a tip from the NSA to base the entire operation on. The NSA info might show that the accused had previously rejected such advances. It could show a history of cops attempting to induce a crime where none would have otherwise occured. That is entrapment.

      The standard does not rely on a cop identifying himself. See Sorrells v. United States. It identified the controlling question as "whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials"

      Furthermore, the original data may show that his interactions with the FBI had different meaning when taken in the larger context, and the investigation wouldn't have been warrented. Leading to questions, again, of wether or not the crime only occurred because the FBI planted that info. 100s of potential procedural problems come up.

       

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      DCX2, Aug 30th, 2013 @ 10:32am

      Re: Entrapment

      I suggest reading the excellent "I was entrapped!" infocomic.

      http://thecriminallawyer.tumblr.com/post/19810672629/12-i-was-entrapped

       

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    Jasmine Charter, Aug 30th, 2013 @ 11:24am

    Lying liars who lie...

    What's MORE incredible that this scenario is how ANYONE of normal intelligence or greater would EVER assume ANYONE in the government was EVER telling the truth!

    The government is not FOR and BY the people... it is OPPOSED to the people. It stands in CONTRAST to the people's will.

    They lead idiotic sheoples down a media road with fat bank accounts stuff from special interests. And the sheoples are too busy worrying about the latest gossip on Kim K. or whoever is in the limelight at the moment, to actually hold ANYONE accountable.

    It disgusts me.

    I'm at the point where I believe citizenship should be EARNED. If you want to vote, you have to demonstrate basic knowledge of politics, the world and prove that you can make simple rational decisions.

    While that would reduce our current citizenship by about 50%, I think the remaining 50% might actually be able to do some good for the poor, stupid sheoples.

     

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      Anonymous Coward, Aug 31st, 2013 @ 1:11am

      Re: Lying liars who lie...

      I'm at the point where I believe citizenship should be EARNED. If you want to vote, you have to demonstrate basic knowledge of politics, the world and prove that you can make simple rational decisions.

      That is the path that leads to a theocracy. Whoever controls the requirements dictates what knowledge and opinions are required to allow voting.

       

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    identicon
    Anonymous Coward, Aug 30th, 2013 @ 12:25pm

    This is a prime example of what will happen to many more American citizens, if Unconstitutional domestic spying is allowed to continue.

    I didn't ready anything about a wiretap warrant being obtained in this case. So most likely the Unconstitutional spy program was used.

    Another fine point this article makes. Despite the Unconstitutional Intelligence agencies and DOJ stating they would be forced to disclose evidence used as a basis for an arrest. They are now refusing the disclose such evidence.

    That's all the evidence the American people needs to draw a conclusion that the Intelligence agencies and the DOJ are Unconstitutional liars!

     

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    JMT (profile), Aug 30th, 2013 @ 3:09pm

    To all those people who want to know why Kim Dotcom is fighting extradition to the US instead of just turning up in court to defend himself, THIS IS WHY.

     

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    Anonymous Coward, Aug 30th, 2013 @ 3:16pm

    yet again, where the fuck do these people come from? they are supposed to be upholders of the law, not a band of idiots that pick and chose what can be disclosed and what cant! how the hell is anyone supposed to know what they have done if the charges are not backed up with evidence? if you dont know what evidence there is against someone, howe can it be disputed? this ios simply a way to ensure that the Police State can continue to function, throwing into jail anyone that is wanted to be put into jail. the obvious probability here being that it can be used in a personal way, to get rid of a person who is disliked or being a stumbling block

     

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    Bergman (profile), Aug 30th, 2013 @ 11:11pm

    So the sixth amendment is dead?

    Overturned by court order...I was not aware that a court had the authority to abolish a constitutional amendment.

    Were I the defense lawyer, I'd immediately move for a dismissal of all charges on Sixth Amendment grounds. It will almost certainly be denied, but symbolism has a place even in a kangaroo court. Especially in a kangaroo court.

     

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    identicon
    Johnny Luckett, Sep 28th, 2013 @ 11:40pm

    The Importance of democracy

    I'm particularly enthusiastic to live in a society that gives every man woman and child the opportunity to develop themselves to their full capacity. The cowards & terrorists (the Tsarnaev brothers) that implemented the bombing in Boston further show us the importance of vigilance that must be implemented within the United States and abroad. This cowardly act committed by these terrorists was an attack, not just on the United States, but on freedom itself!!!

    We must always appreciate the views of others, as they continue to explore this philosophical experiment called democracy; although, we must stand strong and know that Internationally we are one-together against those that seek to force their evil twisted dogma's, false conspiracy's, and political slavery upon us. If you truly aspire to the values of freedom, then I (for one) would be proud to call you an American; my greatest hope is that you too will become one with us being free to practice your faith and beliefs without persecution or malice.

    Johnny Luckett

     

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    Carl, Nov 13th, 2013 @ 3:09pm

    False evidence to build a false case

    I'm currently being setup by federal law enforcement. I can see it coming a mile away. They've been investigating me for years because of a false accusation by a former employer that I hacked them. The accusation was a distraction and deflection of their own guilt because they got busted with an incriminating email disclosing their misdeeds toward me that someone forwarded to me... The investigation against me went nowhere. They had no case but they harassed and tormented me for years. Now their constructing a case against me to make it look like I'm hacking at my new job. I just want a normal life and for these guys to leave me the f* alone. It all sounds paranoid but this is what they do. When they can't get you on legitimate terms, and they want you...they falsify a case. It's a nightmare. American freedom is dead.

     

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    identicon
    Carl, Nov 13th, 2013 @ 3:16pm

    False evidence to build a false case

    The idea that their tactics are ethical such that the ends justify the means is exactly the kind of nonsense that the constitution was engineered to protect us from. They monitor us electronically, against our will and against what we believe to be our rights, and if they find something they believe to be legitimate, they build a parallel case of false evidence that they can admit without being exposed for illegal tactics...but the original thing they think is incriminating enough to justify synthesizing false evidence has to be addressed openly or it could be misunderstood without getting to address it...it's extremely prone to mistakes but they're never the ones to pay for the mistake...it's all about their jobs being easier at the cost of your freedoms.

     

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