aGameOfThrones
06-17-2014, 07:24 PM
The United States Court of Appeals for the Seventh Circuit has ruled against terrorism suspect Adel Daoud, saying that he and his attorneys cannot access the evidence gathered against him. The Monday ruling overturns an earlier lower district court ruling that had allowed Daoud and his lawyers to review the legality of digital surveillance warrants used against him.
Further Reading
Senators have questions for NSA and others, probably won’t get answers soon
New "comprehensive review" of surveillance practices due by December 31, 2014.
In May 2012, Daoud, an American citizen, was arrested in Chicago after having orchestrated the bombing of a downtown bar. However, the bomb was a dud, provided by*FBI handlers who*encountered his postings online.
In a December 2012 session of the US Senate, Sen. Diane Feinstein (D-CA) cited Daoud’s case (although not by name) as an example (PDF) illustrating why her colleagues should support renewing the Foreign Intelligence Surveillance Act (FISA). That piece of legislation contains the controversial Section 702, which provides the legal authority that the National Security Agency uses as the basis for Prism and other surveillance and data collection programs.
When Daoud’s lawyers discovered that this case involved secret evidence that they had not been privy to, they eventually asked the court to notify them if any evidence gathered had been done so under a Foreign Intelligence Surveillance*Court (FISC) order. Under the normal procedures of American jurisprudence, a defendant has the right to see the evidence against him or her and can challenge the basis on which such a warrant was authorized.
The government responded with its own affidavit from Attorney General Eric Holder, who told the court that disclosing such material would harm national security.
In January 2014, US District Court Judge Sharon Johnson Coleman ordered (PDF) that Daoud’s counsel, who has*the necessary security clearances, could view the surveillance application that the government made to the FISC. Further, Daoud’s counsel could be allowed to advocate for their position in court, with the government’s lawyers also present.
“While this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds the disclosure may be necessary,” Judge Coleman wrote. “This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment.”
But the government appealed, and it won in the Monday ruling.
In a 35-page ruling, though, Judge Richard Posner disagreed with this reasoning, noting that courts often have non-adversarial hearings, known as ex parte, where only one side is heard from. Further, he wrote, just because Daoud’s lawyers may have some kind of security clearance, they may not have the necessary clearance in this case, as there are multiple levels of security classification.
“Our study of the materials convinces us that the investigation did not violate FISA,” he concluded. “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."
“Finally, for future reference we suggest that when a district judge is minded to disclose classified FISA materials to defense counsel—a decision bound to precipitate an appeal by the government—the judge issue a classified statement of reasons, as it probably will be impossible to explain in an unclassified opinion all the considerations motivating her decision. In this case, however, our review of the materials persuades us both that there was no basis for disclosure and that a remand would be of no value,” Posner wrote.
http://arstechnica.com/tech-policy/2014/06/court-terror-suspect-cant-get-nsa-evidence-gathered-against-him/
Further Reading
Senators have questions for NSA and others, probably won’t get answers soon
New "comprehensive review" of surveillance practices due by December 31, 2014.
In May 2012, Daoud, an American citizen, was arrested in Chicago after having orchestrated the bombing of a downtown bar. However, the bomb was a dud, provided by*FBI handlers who*encountered his postings online.
In a December 2012 session of the US Senate, Sen. Diane Feinstein (D-CA) cited Daoud’s case (although not by name) as an example (PDF) illustrating why her colleagues should support renewing the Foreign Intelligence Surveillance Act (FISA). That piece of legislation contains the controversial Section 702, which provides the legal authority that the National Security Agency uses as the basis for Prism and other surveillance and data collection programs.
When Daoud’s lawyers discovered that this case involved secret evidence that they had not been privy to, they eventually asked the court to notify them if any evidence gathered had been done so under a Foreign Intelligence Surveillance*Court (FISC) order. Under the normal procedures of American jurisprudence, a defendant has the right to see the evidence against him or her and can challenge the basis on which such a warrant was authorized.
The government responded with its own affidavit from Attorney General Eric Holder, who told the court that disclosing such material would harm national security.
In January 2014, US District Court Judge Sharon Johnson Coleman ordered (PDF) that Daoud’s counsel, who has*the necessary security clearances, could view the surveillance application that the government made to the FISC. Further, Daoud’s counsel could be allowed to advocate for their position in court, with the government’s lawyers also present.
“While this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds the disclosure may be necessary,” Judge Coleman wrote. “This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment.”
But the government appealed, and it won in the Monday ruling.
In a 35-page ruling, though, Judge Richard Posner disagreed with this reasoning, noting that courts often have non-adversarial hearings, known as ex parte, where only one side is heard from. Further, he wrote, just because Daoud’s lawyers may have some kind of security clearance, they may not have the necessary clearance in this case, as there are multiple levels of security classification.
“Our study of the materials convinces us that the investigation did not violate FISA,” he concluded. “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."
“Finally, for future reference we suggest that when a district judge is minded to disclose classified FISA materials to defense counsel—a decision bound to precipitate an appeal by the government—the judge issue a classified statement of reasons, as it probably will be impossible to explain in an unclassified opinion all the considerations motivating her decision. In this case, however, our review of the materials persuades us both that there was no basis for disclosure and that a remand would be of no value,” Posner wrote.
http://arstechnica.com/tech-policy/2014/06/court-terror-suspect-cant-get-nsa-evidence-gathered-against-him/