CHICAGO (AP) — The government can't keep secret its request to conduct clandestine surveillance of an accused attempted terrorist, a federal judge ruled on Wednesday in a potentially far-reaching decision that gives defense attorneys unprecedented access to records filed with a secret intelligence court.
The ruling is the first time defendant's lawyers will be given access to an application prosecutors submitted to the Foreign Intelligence Surveillance Court, or FISA, which was established in 1978 to monitor spying within in the United States, U.S. District Judge Sharon Johnson Coleman said.
Judge Coleman's decision Wednesday is a rare win for the defense, which has pressed for the government to shed more light on how investigators might have employed the kind of phone and Internet spying revealed by ex-government contractor Edward Snowden.
Her pretrial ruling is in the case of 20-year-old Adel Daoud, a U.S. citizen from suburban Chicago. He denies allegations he took a phony car bomb from an undercover FBI agent in 2012, parked it by a downtown Chicago bar and pressed a trigger.
The decision means defense attorneys should be able to challenge prosecutors on the substance of the application, though not in public. Prosecutors had wanted the judge to follow established practice and view the secret application herself behind closed doors — with prosecutors there, too, but with the defense locked out on security grounds.
Some observers said opening those applications to review in a criminal case could set a dangerous precedent. The documents can run more than 50 pages. "The FISA applications have some of the most sensitive information there is about intelligence sources and methods," said Ken Wainstein, a former adviser to President George W. Bush for Homeland Security and Counterterrorism. "If that information routinely got into the hands of people outside the intelligence community and the judiciary, it could compromise national security."
Coleman's is just one of several rulings to touch on a hotly debated issue of secret surveillance. Late last year, a federal judge in Manhattan upheld the legality of the phone records collection program, while another federal judge in Washington, D.C., earlier concluded it was likely not constitutional.
In her ruling, Coleman said the best place to determine whether the proposed surveillance was proper is through the court system, where defense attorneys are able to see the evidence against their client. She called it the "bedrock" of the Sixth Amendment's guarantee that defendants will get a fair trial.
In a related ruling earlier this month, Coleman said prosecutors did not have to disclose, one way or the other, whether the kind of expanded surveillance as revealed by Snowden was used to tip investigators off about Daoud. But the application related to Daoud could potentially indicate what led investigators to decide Daoud should be scrutinized further, be it an informant or the expanded surveillance.
In an email reacting to Coleman's ruling, Daoud's lead attorney, Thomas Durkin, called it a "historic, courageous and very meaningful ruling to preserve the integrity of the adversarial process." The U.S. attorney's office in Chicago declined any comment on the ruling. They would have the option of appealing the decision to the U.S. 7th Circuit Court of Appeals in Chicago sometime prior to Daoud's trial, which is scheduled to begin on April 7.
In her five-page opinion, the judge notes one of the government's arguments for not offering their courtroom adversaries access to applications submitted to the FISA court, was that it had never been done before.
"That response is unpersuasive," she wrote. "Without a more adequate response to the question of how disclosure of materials to cleared defense counsel pursuant to protective order jeopardizes national security, this court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel."
Under the 1978 law, FISA court judges sign off on wiretapping and search warrants used against foreign agents and suspected spies and terrorists, as well as Americans involved with them. It was FISA amendments passed in 2008 that allowed the government to obtain broad intercept orders from the court — raising the prospect that calls and emails between foreign targets and innocent Americans could be subject to surveillance.
To see the secret application, Coleman said Durkin would have to show he has attained the security clearance required — something the leading defense attorney in multiple terrorism case over the years has said he has.
Prosecutors and the defense argued the matter earlier this month. Durkin implored Colemen during oral arguments to, in his words, restore "lost faith" in the judicial system by ordering the government to fully disclose how and whether it used enhanced spying techniques.
Coleman stopped short of going that far in her Wednesday ruling, saying that — at least for now — she was limiting defense access to the application material to the FISA court. An additional ruling would be required to decide if they can use any information on the applications at the trial itself.
Daoud's attorneys have also said that, if the government employed enhanced surveillance to flag Daoud and only then targeted him in an FBI sting, they intend to challenge the constitutionality of any subsequent evidence.
Coleman said in her ruling Wednesday she was not attempting to assert any opinion on the constitutionality of U.S. surveillance. At the same time, she acknowledged the potential importance of what she had just done by opening up the secret applications to Daoud's lawyers, saying, "This finding is not made lightly."
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