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

By Mike Masnick | Techdirt | June 17, 2014

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.

June 17, 2014 Posted by | Civil Liberties, Deception | , , , | Leave a comment