Adel Daoud was arrested outside a Chicago bar in an undercover FBI sting operation.

Two prominent civil liberties organizations filed a brief urging a federal district court judge to uphold a landmark decision granting a young Muslim accused of “attempting to use a weapon of mass destruction” access to government surveillance records.

Adel Daoud was arrested outside a Chicago bar in an undercover FBI sting operation. His defense team convinced Judge Sharon Johnson Coleman to give the team access to “foreign surveillance materials” under the Foreign Intelligence Surveillance Act (FISA).

The government panicked and responded with an appeal hysterically warning this could bring about a “sea change” in FISA litigation.

Prosecutors believe the district court “abused her discretion” or overstepped her authority by ordering the government to disclose materials to the defense. They also argue that this is not an “extraordinary” case, which should justify the nation’s “first” FISA disclosure order.

Both the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) disagree. They believe this “appeal to inertia is wrong.”

“Warning a court against becoming an outlier is no substitute for statutory interpretation,” according to the brief. “FISA’s text, structure and legislative history all reject a rule of categorical secrecy.”

Also, “FISA’s disclosure provisions are not ornamental, and the district court’s decision to invoke them in this case was not an abuse of discretion.”

Patrick Toomey, a staff attorney for the ACLU, told Firedoglake, “Congress intended for there to be meaningful regime for disclosure of this information to criminal defendants, and instead what the past thirty-six years show is an unbroken line of cases in which disclosure has been barred at every instant.”

Toomey explained that defense attorneys have gone after surveillance records under FISA “very persistently,” and “every single time they’ve been denied.”

“The statute requires executive officials to certify to the court in an individual case that disclosure would be harmful to national security,” he added. “In every case, where this issue has arisen, the Attorney General or another official has filed that certification and the court has accepted it after reviewing the materials and declined to provide access to a defendant.”

The brief highlights how “there was no statute authorizing disclosure of foreign surveillance to criminal defendants” before the statute passed in 1978.

“In the four decades of abuses preceding FISA’s enactment, private litigants could point to no law or procedural rule requiring disclosure of foreign surveillance materials in the absence of a judicial determination that the Constitution had been violated. If Congress had wanted this pre-FISA practice to prevail for another four decades, then it could simply have codified it.”

Of course, the effect of cooperation between the government prosecutors and federal judges has produced a history, which would have taken place if Congress had codified this “pre-FISA practice” into law.

Up until now, there was little resistance from within any branches of government to the glaring record of nondisclosure. What has shifted so that a defense attorney representing an alleged terrorist could win access to surveillance records in court?

Toomey suggested, “The revelations that have come out of the disclosures [from Edward Snowden] in terms of the government’s misrepresentations to the FISA court, the FISA court’s difficulty overseeing these surveillance programs both because of these misrepresentations and because of their complexity, and the understanding that an adversarial process was needed to highlight or bring to the fore those discrepancies or those misrepresentations has begun to make clear the real value of having two-sided participation, especially when an individual’s liberty is at stake as in these criminal cases.”

In other words, no longer should the government be allowed to run the show when it is so clear they are not being forthright with the court.

Aside from perception, Toomey believes judges are aware of the threat of much of this broad electronic surveillance. “They are beginning to push back against government efforts to use these new electronic tools and new forms of electronic surveillance to get far, far more information then has traditionally been contemplated by a search warrant.”

Unfortunately, the record of nondisclosure, which conflicts with why Congress established this process for defendants in the first place, has not led to any major aha moments for any judges up until now. That is why defense attorneys around the country, such as the public defender representing Mohamed Mohamud—who was convicted of plotting to attack a Christmas tree lighting ceremony but had his sentencing put on hold—are paying close attention.

It may give defense attorneys more capability than ever to challenge how the FBI is selecting and targeting defendants, who are arrested in sting operations.

Photo: US Marshall Service

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."