A federal appeals court in Chicago granted the government a secret one-party hearing in the middle of what was supposed to be an open hearing on whether a defendant in facing terrorism charges should have access to secret surveillance records. The defense and media were thrown out. The public had already been told before the hearing began that they were not permitted in the courtroom.

The hearing was the latest in the case of Adel Daoud, who 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 when this happened and appealed because for over three decades no defense attorney has ever been allowed access to such records in a trial.

The defense was not informed ahead of time that the government planned to close the courtroom and transform the federal appeals court into a kind of FISA court where the judge would be hearing government claims about records on Daoud, which the defense has not seen and which lawyers for Daoud would be unable to rebut.

According to Chicago Tribune reporter Jason Meisner, when Daoud’s attorney Thomas Durkin objected, Judge Richard Posner “did not acknowledge him.”

“Deputy US marshals then ordered everyone out – including Durkin and his co-counsel. After about five minutes, marshals let back into the courtroom federal officials with the proper security clearance, including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about two dozen FBI and U.S. Department of Justice officials,” Meisner reported. “Boxes of what was apparently evidence in Daoud’s case were also brought into the courtroom before it was locked.”

The secret hearing went on for about a half hour and Durkin told the press that “the appeals court’s action illustrated the way the ‘war on terror’ has led to an unconstitutional, two-tiered justice system that keeps defense attorneys from accessing information they need to defend their clients.”

Durkin added, “Anybody who thinks that this is an acceptable substitute for the adversarial process, well, more power to them,” and, “This is a sad day for the justice system.”

Michael Tarm, a reporter for the Associated Press, tweeted:

Tarm indicated that judges had “thoroughly grilled” defense lawyers and shown great skepticism toward the district court judge’s decision to grant defense attorneys access to surveillance records. Judge Richard Posner, who was appointed to the court by President Ronald Reagan, was described as “scathing of trial judge’s ruling.”

American Civil Liberties Union staff attorney Patrick Toomey reacted, “The removal of public, press and the defense from the courtroom is a powerful illustration of the secrecy that has infected many parts of our criminal process.” [The ACLU and the Electronic Frontier Foundation submitted a brief in support of Daoud’s access to surveillance records.]

It’s the government’s position that it never has been necessary for a defendant to have access to surveillance records to put on his or her defense and that tests the limits of the process, particularly because Congress expressly contemplated in certain circumstances a defendant would have access to this information. Up until recently no court had ever granted a defense’s request for access to applications and orders by the government. Yet, as Toomey emphasized, the government has an unbroken record over three decades of keeping FISA materials and that is “deeply inconsistent” with what Congress intended.

Daoud’s attorneys argue that the federal appeals court should uphold access to records because the records could aid in arguing that Daoud was entrapped.

“FISA applications for electronic surveillance of defendant’s email accounts may fail to establish probable cause that defendant, a high school student from suburban Chicago and United States citizen, was “an agent of a foreign power,” Daoud’s attorneys argue. [A US citizen is supposed to be “an agent of a foreign power” in order for the FISA court to authorize surveillance.]

Also, according to Daoud’s attorneys, the FISA applications may contain “falsehoods or omissions,” violating the Fourth Amendment. Surveillance “may have been based impermissibly on activity protected by the First Amendment.” The applications may show that the government was seeking to collect evidence of alleged domestic criminal activity, not “foreign intelligence information.”

But the government does not believe it is the place of judges to contest the executive branch and open these surveillance records up to challenge by the defense.

There has been very little resistance to the stunning record of non-disclosure. Judges have been compliant or complicit in secrecy—just as the federal appeals court in Chicago was today.

Disclosures from NSA whistleblower Edward Snowden made it possible to see how the government had misled the FISA court and manipulated secret processes intended to provide a check on surveillance powers. That likely inspired the district court judge to take the bold move of granting defense attorneys access to surveillance records. However, it would appear the federal appeals court is still infected by the national security arguments, which pollute the justice system.

When the process should be open so that a person accused of crimes can have a fair trial, appeals court judges in this case chose to be deferential to prosecutors and hostile toward defense attorneys, and indifferent to the public’s right of access to proceedings.

Kevin Gosztola

Kevin Gosztola

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

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