The defense for a man accused of attempted terrorism will be able to review the US government’s surveillance application against him, a federal judge said Wednesday in an unprecedented ruling.
US District Judge Sharon Johnson Coleman’s ruling is the first time a defendant’s legal team will have access to a surveillance application prosecutors submitted to the Foreign Intelligence Surveillance Act (FISA) court. Whether spying then took place is unclear, but, nevertheless, the government’s request will be made available to the defense.
The pretrial ruling is in the case of Adel Daoud, a US citizen from outside Chicago who denies allegations that in 2012 he took a fake car bomb from an undercover FBI agent, parked it outside a downtown Chicago nightclub and pressed a phony trigger.
Daoud's defense team has said that if the government used heightened surveillance to monitor Daoud and only then was he targeted by an FBI sting, they could challenge the constitutionality of pertinent evidence.
Prosecutors had pressed for the secret application to be kept from the defense, yet the ruling means the defense may challenge the prosecution on the nature of the application.
“This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials,” Coleman wrote. “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.”
The application could indicate how investigators decided Daoud, 20, needed further scrutiny, whether by informant or surveillance operations. Daoud’s lead attorney Thomas Durkin called the decision a “historic, courageous and very meaningful ruling to preserve the integrity of the adversarial process," according to AP.
In oral arguments over the matter earlier this month, Durkin pleaded with Coleman to restore “lost faith” in the judicial system by ordering the disclosure of how and whether the government used the very spying methods first exposed to the public from revelations supplied by former NSA contractor Edward Snowden in his client’s case. Though Coleman did not go that far in Wednesday’s ruling, limiting the defense to the FISA court application.
The compliant, secretive FISA court, created in 1978, approves government requests for surveillance orders.
The US attorney’s office in Chicago did not comment to the AP on the ruling. They may appeal Coleman’s decision before Daoud’s trial begins on April 7.
In her opinion, Coleman said one of the government’s main arguments for shielding the FISA application from the defense was that such a disclosure had never been done before.
"That response is unpersuasive," the judge wrote. "Without a more adequate response to the question of how disclosure of materials to cleared defense counsel pursuant to protective order jeopardizes national security, this court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel."
A further ruling will be needed to determine if any information in the FISA application can actually be used in the trial.