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Supreme Court Asked to Determine if Terrorism Suspect Targeted by FBI Should Have Access to Surveillance Records

Thomas Durkin, one of the defense attorneys for Adel Daoud

Lawyers for a man who was targeted by an FBI sting operation and charged with terrorism offenses have asked the United States Supreme Court to review their case to determine if an appeals court erred in denying access to material the government collected under the Foreign Intelligence Surveillance Act (FISA).

Adel Daoud is charged with “attempting to use a weapon of mass destruction” and “attempting to destroy a building by means of an explosive.” District Court Judge Sharon Coleman granted Daoud’s defense team access to “foreign surveillance materials” under FISA, which was unprecedented. The government immediately appealed the decision, and the Seventh Circuit Court of Appeals ruled against Daoud.

The Seventh Circuit actually conducted a classified hearing where it reviewed investigation into Daoud and found, “It would have been irresponsible of the FBI not to have launched its investigation of the defendant.” The court decided he was not placed under surveillance to investigate “domestic criminal activity,” which would have been a violation of FISA. He was an “agent of a foreign power” and evidence collected should not be suppressed in his case.

Daoud’s lawyer, Thomas Durkin, as well as lawyers with the American Civil Liberties Union (ACLU), have now requested that the Supreme Court address a key question that this case raises: “When is a criminal defendant who is being prosecuted based on evidence acquired under [FISA] entitled to examine applications, orders and other materials relating to that surveillance?” [PDF]

The lawyers argue that the Seventh Circuit’s interpretation of FISA infringes upon defendants’ Fourth and Fifth Amendment rights and “inappropriately insulates far-reaching surveillance activities from judicial review.”

A section of FISA “plainly contemplates FISA materials will be disclosed to defendants in some circumstances.” This makes it possible for defendants to have “meaningful opportunity to seek the suppression of evidence” that is obtained unlawfully. Yet, up until Daoud’s case, no court had ever granted a defendant access to materials and in every single case the Attorney General has submitted an affidavit opposing disclosure of materials.

The lawyers’ petition to the Supreme Court further outlines:

…The question of when defendants are entitled to see FISA materials is a recurring one because the use of FISA-derived evidence in national-security prosecutions is now routine. The question takes on even more importance, however, in light of the vast expansion of the government’s surveillance activities since 2001; the government’s aggressive use of new surveillance authorities whose constitutionality is deeply contested; the government’s reliance on the fruits of surveillance conducted under those authorities to secure FISA orders; and uncertainty about when the government is obliged to notify defendants that any of these authorities were used against them. Denied access to applications, orders, and other materials relating to the government’s surveillance, criminal defendants are unable to determine precisely which surveillance authorities were used against them, or in what ways they were used, let alone establish the factual predicate that would entitle them to Franks hearings. Denied access to these materials, it is difficult or impossible for many defendants to exercise rights guaranteed by the Fourth and Fifth Amendments…

The petition adds defendants are not “ordinarily” notified by the government when their communications have been “monitored under FISA, [the FISA Amendments Act] or other national security authorities.” This means “those whose privacy is implicated by surveillance conducted under these authorities generally lack the ability to contest the constitutionality of the authorities or the government’s use of them.”

Motions to suppress in criminal prosecutions are the principal means, and in many contexts the only means, by which the constitutionality of government surveillance conducted for national-security purposes can be tested. To the extent that criminal defendants are denied access to the materials that would allow them to challenge the lawfulness of this surveillance, the surveillance is shielded from judicial review and effectively placed beyond the reach of the Constitution.

According to the petition, there is still concern that the FISA Amendments Act may have been used inappropriately against Daoud. “For example, the Privacy and Civil Liberties Oversight Board (PCLOB) reported that the FBI searches its database of FAA-obtained
information ‘whenever the FBI opens a new national security investigation or assessment.'”

…The Department of Justice informed [Daoud] that it “does not intend to use any such evidence obtained or derived from FAA-authorized surveillance in the course of this prosecution.”…It declined to say, however, whether the FAA was used to collect or monitor [Daoud’s] communications, and it has not disclosed the meaning it accords to the phrase “obtained or derived”—though, as discussed below…the government has conceded that it interpreted that phrase too narrowly in the past…

Repeatedly, disclosures by National Security Agency whistleblower Edward Snowden are acknowledged to persuade the Supreme Court of the urgent need to intervene in this case. This is an opportunity to “provide guidance” on the role “federal judges should play in ensuring that the government’s surveillance practices are consistent with the Constitution.”

If Daoud had access to these surveillance records collected against him, the petition concludes, his counsel, Durkin, “would be in a position to make more informed arguments about the constitutionality of the government’s surveillance” of his client. His arguments about the “admissibility of evidence derived from that surveillance” would be more informed as well.

CommunityThe Dissenter

Supreme Court Asked to Decide if Terrorism Suspect Targeted by FBI Should Have Access to Surveillance Records

Thomas Durkin, one of the defense attorneys for Adel Daoud

Lawyers for a man who was targeted by an FBI sting operation and charged with terrorism offenses have asked the United States Supreme Court to review their case to determine if an appeals court erred in denying access to material the government collected under the Foreign Intelligence Surveillance Act (FISA).

Adel Daoud is charged with “attempting to use a weapon of mass destruction” and “attempting to destroy a building by means of an explosive.” District Court Judge Sharon Coleman granted Daoud’s defense team access to “foreign surveillance materials” under FISA, which was unprecedented. The government immediately appealed the decision, and the Seventh Circuit Court of Appeals ruled against Daoud.

The Seventh Circuit actually conducted a classified hearing where it reviewed investigation into Daoud and found, “It would have been irresponsible of the FBI not to have launched its investigation of the defendant.” The court decided he was not placed under surveillance to investigate “domestic criminal activity,” which would have been a violation of FISA. He was an “agent of a foreign power” and evidence collected should not be suppressed in his case.

Daoud’s lawyer, Thomas Durkin, as well as lawyers with the American Civil Liberties Union (ACLU), have now requested that the Supreme Court address a key question that this case raises: “When is a criminal defendant who is being prosecuted based on evidence acquired under [FISA] entitled to examine applications, orders and other materials relating to that surveillance?” [PDF]

The lawyers argue that the Seventh Circuit’s interpretation of FISA infringes upon defendants’ Fourth and Fifth Amendment rights and “inappropriately insulates far-reaching surveillance activities from judicial review.”

A section of FISA “plainly contemplates FISA materials will be disclosed to defendants in some circumstances.” This makes it possible for defendants to have “meaningful opportunity to seek the suppression of evidence” that is obtained unlawfully. Yet, up until Daoud’s case, no court had ever granted a defendant access to materials and in every single case the Attorney General has submitted an affidavit opposing disclosure of materials. (more…)

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Kevin Gosztola

Kevin Gosztola

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