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Showdown over secret-court documents in Chicago

Published: Wednesday, June 4, 2014 2:31 p.m. CDT
Caption
(AP Photo/U.S. Marshal's office, File)
FILE - This undated file photo provided by the U.S. Marshal's office shows terrorism suspect Adel Daoud, of Hillside, Ill. On Wednesday, June 4, 2014, at the 7th Circuit Court of Appeals in Chicago, a prosecutor and the attorney for Daoud, will deliver oral arguments about a trial judge's ruling granting the defense access to secret-court records. Prosecutors say that letting Daoud's lawyers to see the papers submitted to the Foreign Intelligence Surveillance Court could jeopardize national security. But Daoud's lawyers say it's the only way they can guarantee Daoud a fair trial. The 20-year-old Daoud denies trying to ignite a bomb in Chicago in 2012.

CHICAGO (AP) — Fiercely debated questions about surveillance raised by one-time government contractor Edward Snowden are getting a rare hearing Wednesday in open court.

A three-judge panel at the 7th U.S. Circuit Court of Appeals in Chicago is listening to oral arguments about a trial judge's ruling granting lawyers for terrorist suspect Adel Daoud unprecedented access to secret intelligence-court records. Government attorneys want that ruling reversed, saying it could threaten national security.

Daoud, a 20-year-old U.S citizen, is accused of accepting a phony car bomb from undercover FBI agents posing as extremists in 2012, parking it by a Chicago bar and pressing a trigger. He has pleaded not guilty.

Snowden's revelations about expanded U.S. phone and Internet spying and how the Foreign Intelligence Surveillance Court, or FISA court, secretly signed off on them has raised the profile of such issues.

Lawyers for other accused terrorists are paying close attention to the Chicago case.

Attorneys for two brothers in Florida accused of plotting to detonate bombs in New York City submitted the January ruling by the Daoud judge to their federal judge in Miami as a supplement to their own, still-pending motion to view the secret-court application in their case.

Government attorneys prosecuting Daoud have sharply criticized the trial court's ruling. Letting Daoud's lawyers comb through the voluminous documentation submitted with wiretap applications to the FISA court, they argue, could jeopardize national security.

Congress established the FISA court in 1978 to help ensure that government surveillance focused on foreigners or foreign agents, not on domestic criminal activity. Since then, no defense attorneys had been told they could go through a FISA application until U.S. District Judge Sharon Johnson Coleman's January 29 ruling in Daoud's case.

She said allowing the defense to vet potential evidence would help guarantee Daoud's right to a fair trial. That no judge had ever granted such access to FISA papers before, she added, wasn't a reason not to do it now.

Prosecutors want the appellate court to order the trial judge to follow established practice and go through the secret application behind closed doors and decide herself if the FISA court application was legally sound.

But Daoud's attorneys have cast the issue as one of fundamental rights, saying that wading through the documents themselves is the only way to determine if the clandestine surveillance of their client was legal.

"A system that operates in secret, with no adversarial input (from defense attorneys) ... is almost certain to breed abuse," one defense filing with the appeals courts argues.

In a related ruling, Coleman did say prosecutors would not have to disclose whether the kind of expanded surveillance as revealed by Snowden was used to tip investigators off about Daoud.

But the FISA application could contain details that indicate expanded surveillance did lead investigators to request a more traditional wiretap. If so, Daoud's lawyers could seek to have the entire case tossed, arguing the surveillance amounted to an illegal search and seizure.

Daoud's trial is scheduled to start Nov. 10.

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Follow Michael Tarm on Twitter at https://twitter.com/mtarm

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