[Infowarrior] - Appeals court overturns surveillance disclosure order

[Richard Forno]

Appeals court overturns surveillance disclosure order
By JOSH GERSTEIN |
6/16/14 4:12 PM EDT

http://www.politico.com/blogs/under-the-radar/2014/06/appeals-court-overturns-surveillance-disclosure-order-190488.html

A federal appeals court has overturned a district court judge's landmark order requiring the government to show defense lawyers foreign-intelligence-related surveillance on how a terrorism investigation developed.

The U.S. Court of Appeals for the 7th Circuit ruled Tuesday that a lower court judge was wrong to grant such access to attorneys for Adel Daoud, who is charged with plotting to set off a bomb in Chicago in 2012.

"The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact. That is an incomplete description of the American judicial system in general and the federal judicial system in particular," Judge Richard Posner wrote in an opinion joined by Judges Michael Kanne and Ilana Rovner (and posted here). "Conventional adversary procedure...has to be compromised in recognition of valid social interests that compete with the social interest in openness."

The appeals court's ruling didn't just address procedure, however. The judges ruled that the surveillance in Daoud's case was lawful, though their explain their reasoning on that point was placed in a classified opinion not available to the public. However in the public ruling, they also seemed to presuppose Daoud's guilt, or at least his intent.

"The Foreign Intelligence Surveillance Act is an attempt to strike a balance between the interest in full openness of legal proceedings and the interest in national security, which requires a degree of secrecy concerning the government’s efforts to protect the nation. Terrorism is not a chimera. With luck Daoud might have achieved his goal of indiscriminately killing hundreds of Americans—whom he targeted because as he explained in an email, civilians both 'pay their taxes which fund the government’s war on Islam' and 'vote for the leaders who kill us everyday,'" Posner wrote.

While the decision was unanimous, Rovner wrote a concurring opinion suggesting that the deck is effectively stacked against defendants trying to challenge a FISA warrant and changes to the law may be needed. She also said the law is difficult to square with a 1978 Supreme Court decision giving defendants the right to challenge false statements made to obtain evidence in their cases, Franks v. Delaware.

"Defendants in FISA cases face an obvious and virtually insurmountable obstacle in the requirement that they make a substantial preliminary showing of
deliberate or reckless material falsehoods or omissions in the FISA application without having access to the application itself," Rovner wrote. "Thirty-six
years after the enactment of FISA, it is well past time to recognize that it is virtually impossible for a FISA defendant to make the showing that Franks requires in order to convene an evidentiary hearing, and that a court cannot conduct more than a limited Franks review on its own. Possibly there is no realistic means of reconciling Franks with the FISA process. But all three branches of government have an obligation to explore that question thoroughly before we rest with that conclusion."

Daoud's appeal drew attention earlier this month after the appeals court panet held a private argument with government lawyers and investigators present, but defense lawyers and the public locked out. Suspicions were raised further when the court announced that the public argument in the case was never recorded, due to what the clerk termed a mix-up brought on by security concerns. The court later arranged a highly unusual repeat of the public argument.

In Tuesday's ruling, Posner defends the closed session and says it could only operate to Daoud's benefit. "The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant," Posner wrote.



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