Adel Daoud Wins Review of FISA Application

Screen Shot 2014-01-29 at 4.20.11 PMAs I’ve written before, Adel Daoud is a 20-year old American citizen from the Chicago suburbs busted in 2012 for attempting to bomb a nighclub. Since Dianne Feinstein mentioned Daoud’s case during the 2012 FAA reauthorization fight, his lawyers have been trying to figure out how the government obtained all the evidence against him. There are hints they may have used a back door search to collect emails dating to 2011 (before the FBI allegedly started tracking him). There are reasons to think the government may have collected upstream collection on him. Either would be particularly interesting, as this surveillance dates to the same weeks when John Bates wrote an opinion addressing both practices.

In addition, the revelations that NSA collects YouTube comments is of particular interest, as Daoud’s YouTube comments serve as part of the evidence against him. (Remember, they could also collect YouTube comments in bulk, and then conduct backdoor searches of that material.)

The judge in his case has just done what no judge has ever done before — grant his lawyers a review of the FISA application against him. As Charlie Savage first noted, Judge Sharon Coleman granted the defense the ability to review the FISA Application against Daoud.

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 that the disclosure may be necessary. 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. Anders v. California, 386 U.S. 738, 743 (1967). Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. “The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 (1984).

In sum, this Court grants disclosure to cleared defense counsel of the FISA application materials and such disclosure will be made under an appropriate protective order.

Her mention of the necessity for adversarial review suggests the suspicions about the basis for FBI’s interest in Daoud may be well-grounded.

We’ll never learn what’s in that application, but we may get a better sense of whether one federal judge thinks it’s legal to use certain kinds of collection as a basis for a FISA warrant.

Update: Spencer Ackerman alerted me that I was cited in the response motion that won this review (see page 3). Yeah me!

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16 replies
  1. Peterr says:

    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.

    That’s a nice polite little kick in the pants to former FISC Chief Judge John Bates. First, because it’s a direct slap at Bates’s argument that there’s no need for a special advocate in the hearings before the FISC (which you dissected here). Second, because at the post cited in the footnote to which Spencer drew your attention, you point out that Bates is the one who approved — without an adversarial proceeding — the backdoor searches in the first place.

    She didn’t come out and say “Judge Bates, you’re full of it,” but she’s going to give Daoud’s counsel a chance to make that argument for her — at great length and in explicit, if classified, detail.

    I’ve always said that the most entertaining parts to a lot of legal writing is in the footnotes!

  2. Peterr says:

    @emptywheel: The relevant passage of the motion:

    Such disclosure is fundamentally important because it may very well reveal how the FBI initially focused on Defendant—a critical fact that has been withheld. The origins of this investigation, whether through FISA, the FAA, bulk internet metadata collection, pen register/trap & trace authorization, warrantless wiretap, a “back door” search on traditional FISA collection,[3] or some other unknown surveillance program, is essential for the Court to accurately determine the legality of the surveillance. Recently disclosed FISC opinions underscore the importance of knowing the exact basis of how, when, and why the FBI started looking at Defendant, particularly in terms of how different surveillance programs require specific statutory notice and also how the different programs have had specific legal and compliance problems. [4]

    The associated footnotes:

    [3] See Marcy Wheeler, Was Adel Daoud Targeted Off of a Back Door Search of Traditional FISA Collection?, Nov. 9, 2013, available at https://www.emptywheel.net/2013/11/09/was-adel-daoud-targeted-off-of-a-back-door-search-of-tradition-fisa-collection/.

    [4] For example, if Defendant’s online activity was initially collected through the NSA’s bulk collection Internet metadata, a deeply problematic surveillance program discussed in a FISC opinion authored by Judge John D. Bates and publically disclosed on November 18, 2013, then prosecutors must provide notice of such collection pursuant to 50 U.S.C. § 1845. This opinion, which is discussed in greater detail below, is available at http://www.dni.gov/files/documents/1118/CLEANEDPRTT%202.pdf.

    And to this motion of “fundamental” importance, the judge here says “Yep, you’re right. It is important to know these essential things — Judge Bates and his FISC colleagues notwithstanding. His court may have abandoned the value of adversarial proceedings, but the rest of the judiciary has not.”

    Or, you know, words to that effect.

  3. liberalrob says:

    The right-wingers are going to scream bloody murder (what else is new) if the court finds the collection was illegal and cuts this guy loose. “You can’t hamstring our brave defenders like this!” If we can’t play mind-games on angry young men and egg them on to try to get them to actually take actions that we can arrest them for, how can we justify our salaries/I mean protect The Homeland?

    What a country.

  4. Kelly says:

    The origins of this investigation, whether through FISA, the FAA, bulk internet metadata collection, pen register/trap & trace authorization, warrantless wiretap, a “back door” search on traditional FISA collection,(3-See Wheeler Extraordinaire) or some other unknown surveillance program, is essential for the Court to accurately
    determine the legality of the surveillance.

    (Emphasis and bragging added.)

    Awesome! Just love that!

  5. JohnT says:

    @Peterr:

    The relevant passage of the motion:

    Such disclosure is fundamentally important because it may very well reveal how the FBI initially focused on Defendant—a critical fact that has been withheld. The origins of this investigation, whether through FISA, the FAA, bulk internet metadata collection, pen register/trap & trace authorization, warrantless wiretap, a “back door” search on traditional FISA collection,[3] or some other unknown surveillance program, is essential for the Court to accurately determine the legality of the surveillance. Recently disclosed FISC opinions underscore the importance of knowing the exact basis of how, when, and why the FBI started looking at Defendant, particularly in terms of how different surveillance programs require specific statutory notice and also how the different programs have had specific legal and compliance problems. [4]

    The associated footnotes:

    [3] See Marcy Wheeler, Was Adel Daoud Targeted Off of a Back Door Search of Traditional FISA Collection?, Nov. 9, 2013, available at https://www.emptywheel.net/2013/11/09/was-adel-daoud-targeted-off-of-a-back-door-search-of-tradition-fisa-collection/.

    Prosecutors reaction: “Damn dirty hippie bloggers!!11!!1!!”

  6. orionATL says:

    could it be that the federal judiciary, which has grotesquely failed the citizens and guests of this nation with respect to constitutionally guaranteed freedoms from government oppression since 2002,

    is finally realizing its dereliction of obligation and sworn promise to protect from federal policing oppression?

    several case decisions cited here and elsewhere in the last three months give rise to a tiny flame of hope – but then there are the four ultra-authoritarian mitred firefighters on the supreme court who can be counted on to tamp down any rebellion in the judiciary’s ranks.

    thank god for the federalist society, k.k. rove, and patrick leahy,

    otherwise, freedom might reign (god forbid ).

  7. orionATL says:

    don’t know where it came from, but tonight’s sudden apperance of “share to facebook” pop-up is extremely annoying.

  8. Outcountry says:

    The court order says:

    “Here, counsel for defendant Daoud has stated on the record that he has top secret SCI (sensitive compartmented information) clearance. Assuming that counsel’s clearances are still valid and have not expired, top secret SCI clearance would allow him to examine the classified FISA application material, if he were in the position of the Court or the prosecution.”

    What would stop the justice dept from just removing counsel’s top secret clearance to prevent implementation of the judge’s order?

  9. Peterr says:

    @Outcountry: Fear of being held in contempt and having the judge issue a summary judgment against them before discovery even takes place. “You are making it impossible for this defendant to adequately defend himself, and therefore I have no choice but to order his immediate release.”

  10. @SoapboxOrator says:

    Congrats Marcy!

    I kind of got a kick out of seeing that post resurface in a defense filing, since I just happened to be mentioned in that particular post, of all the posts that could have gotten cited.

  11. LeMoyne says:

    Wow. I wondered what might be revealed or transformed during the Black Moon. And by wow I mean WOW!

    The Adel Daoud case seem to be on the verge of revealing the FISA/FAA/215/12333 shell hopping game of evidence laundering in court.

    IANAL, but I think it may reveal that guilt by association expires when the actual suspect expires is killed with no evidence of his guilt in any court record.

    I believe this reveals that no terror defendant can receive adequate representation unless their lawyer is not just hella good, counsel needs an active security clearance and a US Senator to spill an important bean or two so they get a clue as to what questions to ask in discovery, and a reason to ask those questions. That’s a pretty high bar to exercise rights that pre-date the USConstitution.

    From the motion that was granted in part:

    At the risk of stating the obvious, had the FAA not been used whatsoever in the investigation of Defendant [Daoud], one would think that the Office of Senate Legal Counsel, the SSCI, Senator Feinstein, the NSA, the FBI, the Justice Department, or the U.S. Attorney’s Office could just simply say so. That “clarification” would have been far more helpful than any provided by Senate Legal Counsel or the opaque responses by the prosecutors to date.

    LMAO at the nearly exhaustive list of those in the know who just cannot say under what authority they gathered the evidence to prosecute Mr. Daoud. If nothing else, active obfuscation has been revealed.

    Possible Transformation: The unraveling of the parallel similar construction of other cases. This first successful discovery could eventually lead to appeals in many of the much-vaunted ‘100 attacks thwarted over four years’, hmmm?
    And so it begins…

    Yay, you alright! Yay emptywheel!

  12. Outcountry says:

    @Peterr: Fair enough. I agree they probably won’t do it. What about if they take counsel’s top secret clearance away AFTER the proceeding? That would send a message to the next party that tries the same thing.

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