DOJ Flips Out That Evidence Gathered Via FISA Orders Might Be Made Available To Defendants

Legal Issues

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.

Filed Under: adel daoud, doj, evidence, fbi, fisa, home grown plots, nsa, own plot, surveillance