Court Rejects Request That Secret NSA Evidence Used Against Terrorism Suspect Be Shared With Suspect's Lawyers

from the secret-courts dept

We've been following the case of Adel Daoud, an American citizen charged with terrorism. He's one of the many, many folks that was arrested following one of the FBI's infamous home grown plots (i.e. he was never actually involved in any terrorism, as all of his "co-conspirators" were actually FBI agents or informants, and there was never any actual threat or chance that he'd pull off an actual terrorist attack). Back during the (pre-Snowden) debates on renewing Section 702 of the FISA Amendments Act, Senator Dianne Feinstein used Daoud's case as a specific example of when the program had been useful in stopping terrorism.

That caught the attention of Daoud's lawyers, who noted that this was the first they'd heard of this, and it seemed pretty clear that the government had withheld the evidence that was used to bring Daoud to trial in the first place (which is, as you know, not really allowed). After asking for the evidence, the district court first said no, but then ordered that some of the documents being filed actually be shared with Daoud's attorneys (who have the necessary security clearances). The DOJ, of course, flipped out at this idea that the lawyers for someone they're trying to lock up forever should actually be able to see the evidence used against him and how it was collected.

This resulted in an appeals court hearing, which bizarrely had to happen twice after the FBI so scared court staff that they failed to record the public portion of the oral hearings. The hearings were also odd in that, at one point, everybody but DOJ folks and the judges were kicked out of the courtroom, raising serious questions about basic due process.

Unfortunately, Judge Richard Posner's ruling (right after coming out with his good ruling on the public domain) has found that the evidence does not need to be shared with Daoud's lawyers. He slams the district court judge for overreacting and over-valuing the concept of the "adversarial process" in the court room. Seriously.
The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact. That is an incomplete description of the American judicial system in general and the federal judicial system in particular. There are ex parte or in camera hearings in the federal courts as well as hearings that are neither or both. And there are federal judicial proceedings that though entirely public are nonadversarial, either partly or entirely.
Posner basically says that the district court judge herself should have looked over the materials first, to determine if it makes sense to pass them on, rather than defaulting to saying that they should be shared with the lawyers. As such, he basically reveals that the "secret hearing" that was held was to go over the material with the appeals court judges, and they're satisfied that nothing needs to be revealed to Daoud's attorneys.
...our study of the materials convinces us that the investigation did not violate FISA. We shall issue a classified opinion explaining (as we are forbidden to do in a public document) these conclusions, and why therefore a remand to the district court is neither necessary nor appropriate.
Posner also, not surprisingly, rejects the objection by Daoud's lawyers to that secret hearing, noting that it was necessary to determine if the DOJ lawyers were being fully honeset with the court:
Their objecting to the classified hearing was ironic. The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant.

Defense counsel’s written motion cites no authority for forbidding classified hearings, including classified oral arguments in courts of appeals, when classified materials are to be discussed. We don’t think there’s any authority it could cite.
And, voila, the secret law and secret courts and secret evidence continue unabated...

For a very good analysis of this ruling, I recommend Steve Vladeck's take, in which he notes that Posner seems to (somewhat bizarrely) confuse sharing details with Daoud's lawyers in secret, with "openness" to the public. As Vladeck notes, the district court judge recognized that not everything had to happen publicly, but was (reasonably) concerned that just having a judge look over the secret FISA court ruling would not be sufficient, since the judge would not have the same view as the defense attorneys. Posner seems to ignore or misinterpret all of that.
The problem, from Judge Coleman’s perspective, is that it may not always be possible for a district judge to determine whether disclosure is necessary (as opposed to whether it “may be necessary”) without the benefit of adversarial presentation. That is to say, § 1806(f) conditions the disclosure of classified FISA materials to a defendant (or, at least, his security-cleared counsel) upon a finding by the district judge that may, in some cases, only be possible with defense counsel’s participation. This is why, in her order mandating disclosure, Judge Coleman devoted so much of her energy to the importance of adversarial proceedings, especially in criminal cases—not because all proceedings in U.S. courts are adversarial (they’re not), but because, in this context specifically, adverse-ness makes it easier for a judge to have faith that she is comporting with her statutory and constitutional obligations.

But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Coward, Jun 17th, 2014 @ 9:15am

    For all of those people saying "I Have Nothing To Hide" this makes it pretty clear that if you don't have the ability to hide then you are subject to prison without due process and the law can hide everything from you with-out due process. welcome to Stasi America.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Jun 17th, 2014 @ 9:31am

    luckily for us, something similar just failed in the uk.
    not that they wont try, and try again until they get their way of course.

    All this makes me wonder who the real terrorists are.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Jun 17th, 2014 @ 9:33am

    Didn't the Supreme court rule based on testimony that wiretap evidence etc would be shared... that wiretaps are legal and now doesn't this create standing and means to challenge the law counter to the evidence previously provided to the Supreme court.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Jun 17th, 2014 @ 9:43am

    Purile Corruption and Anti-American

    Every Citizen has a right to see the evidence against them and for their lawyers to protect them by being able to review it.

    If the defendant or their lawyers cannot see the evidence then such evidence should be stricken from the record with prejudice!

    reply to this | link to this | view in thread ]

  5. identicon
    Paul Brinker, Jun 17th, 2014 @ 10:10am

    Never ending

    This will of course live on in Appeal for years to come. The Government has unlimited money and resources while the person caught up in the scam will get nothing but life in prison for being young and dumb.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Jun 17th, 2014 @ 10:36am

    I wonder whether the DoJ threatened to revewal Posner's skeletons to the public?

    That's the only way that this makes sense - an out-of-control agency, power-mad, decides to fuck over someone 'to make an example of them'.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Jun 17th, 2014 @ 10:37am

    It's not like the FBI and DOJ had to go into fine detail of the technology potentially used to spy on the defendant. In order to have a fair trial though, the prosecution needs to state on what basis probable cause was used to establish their investigation of the defendant to begin with.

    Did probable cause come from a witness calling up the FBI? Did it come from a phone or email interception? If so, was a warrant issued before the interception took place?

    There's absolutely no reason to hide such broad details in any trial. Unless the disclosure of these broad details would invoke outrage in the American public.

    I personally believe Adel Daoud made a telephone call, or emailed someone outside the United States. Not necessarily to a terrorist phone number on the NSA's watch list. Just to someone with a Middle East area code.

    The NSA intercepted this phone call without a warrant. Tipped off the FBI to investigate him. Then gave Adel Daoud a little terror test through the use of entrapment, in order to help speed up the investigation.

    Let this be a lesson to us all. If you make a telephone call outside the US boarder, send an email, or post on a website. The NSA is intercepting that communication without a warrant, listening to it, and will use anything you say or do against you in a secret court of law.

    That's my takeaway from hearing about this secret legal system in action. I couldn't actually see it in action, because it all took place in secret, but I heard about it through rumors.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Jun 17th, 2014 @ 10:41am

    Oh yeah, you know you live in a free world when a man can be arrested solely on the word that evidence exists, without the bothersome notion of actually providing that evidence, whether it exists or the means legal.......aint life grand

    reply to this | link to this | view in thread ]

  9. identicon
    mcinsand, Jun 17th, 2014 @ 10:46am


    I miss the days when I thought that the US was one of the good guys.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, Jun 17th, 2014 @ 10:51am

    Maybe there is nothing to share.
    Wouldnt be surprised if they were still looking for any credible evidence against this guy

    reply to this | link to this | view in thread ]

  11. icon
    Coyne Tibbets (profile), Jun 17th, 2014 @ 11:15am

    Simple remedy

    The remedy remains quite simple:

    Evidence exists against the defendant. It was derived from secret sources. It was as basis to acquire other evidence.

    The evidence is too secret for anyone (judge or defendant) to see.

    The Sixth Amendment requires that, "In all criminal prosecutions, the accused shall enjoy the right to [...] be informed of the nature and cause of the accusation," and "In all criminal prosecutions, the accused shall enjoy the right to [...] be confronted with the witnesses against him."

    So the evidence is inadmissible, all being either of the poison tree or of its fruit. Dismissed. Defendant goes free.


    reply to this | link to this | view in thread ]

  12. icon
    Ben Carl (profile), Jun 17th, 2014 @ 11:20am

    Posner pretends the 6th Amendment doesn't exist

    I just read through that entire opinion, and Posner keeps referencing the FISA act as if it were the ultimate authority here. Sorry, Judge Posner, a statute doesn't prevail over the Constitution. He doesn't even address the Sixth Amendment at all, not once, in the entire thing. I find that astounding, especially since that is the entire basis of the lower court's decision. Just a phenomenally poorly written opinion.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, Jun 17th, 2014 @ 12:21pm

    Dear Mr President,
    Please end the Star Chamber.
    Every citizen of the United States of America

    reply to this | link to this | view in thread ]

  14. identicon
    Richard Posner, Jun 17th, 2014 @ 12:33pm

    Sixth Ammendment? What's that?

    reply to this | link to this | view in thread ]

  15. icon
    Bergman (profile), Jun 17th, 2014 @ 12:45pm


    Yes they did. But good luck getting anyone in the Court to admit to it.

    reply to this | link to this | view in thread ]

  16. icon
    Bergman (profile), Jun 17th, 2014 @ 12:46pm

    Re: Purile Corruption and Anti-American

    Actually, the man's lawyers should immediately make a motion to dismiss the charges on Sixth Amendment grounds. If you cannot try a man without letting him confront his accusers, and their evidence, then you cannot convict him if you refuse to allow such a confrontation. And then the entire trial becomes pointless.

    I wonder if an attorney, acting as an officer of the court, can find the JUDGE in contempt?

    reply to this | link to this | view in thread ]

  17. icon
    Bergman (profile), Jun 17th, 2014 @ 12:50pm

    Re: Simple remedy

    What they're refusing to reveal is the evidence that led them to the guy in the first place, not the evidence of his synthetic crime (so called because it was an FBI fabrication).

    But every scrap of evidence of that synthetic crime was gained because of that initial secret evidence. Oops.

    A car search that only occurred because of an illegal traffic stop is thrown out on that basis, and this is no different.

    If the evidence that they had probable cause to make the stop in the first place is inadmissible...well...oops.

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, Jun 17th, 2014 @ 1:17pm

    So do we live in a dictatorship yet?

    reply to this | link to this | view in thread ]

  19. icon
    MikeC (profile), Jun 17th, 2014 @ 1:44pm

    Just keep coming back to this - over & over & over

    The great strength of the totalitarian state is that it forces those who fear it to imitate it.

    -Adolf Hitler

    reply to this | link to this | view in thread ]

  20. icon
    Spaceman Spiff (profile), Jun 17th, 2014 @ 5:39pm

    When kangaroos rule the courts...

    Gah! Why bother with a trial - just shoot the poor bastard!

    reply to this | link to this | view in thread ]

  21. identicon
    Techanon, Jun 17th, 2014 @ 6:52pm

    Re: *sigh*

    Yeah, ain't ignorance bliss? On my part I'm glad that I awoke from my ignorance driven slumber and don't see the world as only black and white anymore.

    reply to this | link to this | view in thread ]

  22. identicon
    Quiet Lurcker, Jun 17th, 2014 @ 7:34pm

    Re: Re: Purile Corruption and Anti-American

    I wonder if an attorney, acting as an officer of the court, can find the JUDGE in contempt?

    Sadly, no - rather I don't think so, the court system working as it does. Agreed: there should be SERIOUS repercussions in this instance - this decision is a clear violation of the principles enshrined in the Constitution and the oath (or affirmation) any judge makes in taking up the office - carry out the duties incumbent on him/her under the Constitution. 28 U.S.C. 453.

    reply to this | link to this | view in thread ]

  23. identicon
    Anonymous Coward, Jun 17th, 2014 @ 9:29pm

    Authority? What Authority?

    "We donít think thereís any authority it could cite."

    Well, except for that pesky bit about due process in The U.S. Constitution. But we don't really consider The Constitution to be very authoritative these days anyways.

    reply to this | link to this | view in thread ]

  24. identicon
    David, Jun 17th, 2014 @ 10:06pm


    That would explain the non-public DOJ on Posner session.

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, Jun 18th, 2014 @ 8:08am

    Re: *sigh*

    If only those days actually existed.

    reply to this | link to this | view in thread ]

  26. identicon
    Anonymous Coward, Jun 18th, 2014 @ 8:09am


    Wouldn't this be pretty decent grounds to call for a mistrial?

    reply to this | link to this | view in thread ]

  27. icon
    limbodog (profile), Jun 18th, 2014 @ 10:08am

    Re: *sigh*

    Right there with you. Do you remember when you stopped?

    reply to this | link to this | view in thread ]

  28. icon
    John Fenderson (profile), Jun 18th, 2014 @ 2:32pm

    Re: Re: *sigh*

    I remember when I stopped: when we invaded Iraq as a response to 9/11.

    Prior to that, I believed that the US was, on the whole, a force for good. Far from spotless -- I'm well aware of all the various nasties the US has done -- but generally about as good as anyone can reasonably expect.

    reply to this | link to this | view in thread ]

  29. icon
    KevinEHayden (profile), Jun 18th, 2014 @ 8:43pm

    The terrorists have already succeeded!

    If rulings like this are the new normal in the US, then the terrorists have already won. America, or at least the idealistic principles of justice and equality on which is was founded are now dead.

    reply to this | link to this | view in thread ]

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