The U.S. Court of Appeals in Chicago (7th Cir.) reversed a trial court ruling that would have reportedly been the first case in which defense attorneys obtained access to government surveillance court materials.
The three-judge panel sided with the government Monday, stating that the disclosure of Foreign Intelligence Surveillance Court records to the attorneys of Adel Daoud would pose a threat to national security. Daoud was arrested in 2012 for attempting to bomb a Chicago bar in what turned out to be a sting operation.
The court submitted its public opinion with a sealed, classified opinion that provides more explanation.
Judge Richard Posner wrote that the district court erred in thinking the defense attorneys’ security clearances entitled them access to the materials, which he believed could pose a threat to national security.
Posner added that the government should only disclose materials obtained under the Foreign Intelligence Surveillance Act to defense attorneys when a judge, after reviewing the materials privately, deems it necessary to the case. Posner explained that the district court decision, by Judge Sharon Johnson Coleman, indicated that disclosure would be helpful, but not explicitly necessary.
Matthew Segal, a staff attorney for the American Civil Liberties Union Foundation of Massachusetts, said by email that the Seventh Circuit decision allows for unfair levels of government secrecy.
“By reversing the district court’s decision to make FISA materials available to the defense, the Seventh Circuit has permitted the government to maintain a 36-year history of never disclosing to defense lawyers the FISA materials it uses in prosecuting people,” said Segal, who had authored an amicus brief that asked the appellate court to uphold the lower court’s decision.
After the government alerted the defense team of the existence of FISA court records, which were a part of the warrant application, Daoud requested access to the document. The attorney general, though, deemed the materials a threat to national security.
In her January ruling, Coleman granted Daoud’s attorneys access to the FISA materials, even though she noted that no court had done so before, because she found the lawyers had the necessary security clearances. The government immediately appealed this ruling.
Oral argument in the appeal, on June 4, was open to the public for 30 minutes until the panel of judges closed the court. The judges ordered everyone without proper security clearances, including reporters and Daoud’s team of attorneys, to leave the courtroom.
Court employees mistakenly failed to record the public part of the first hearing, so the Seventh Circuit heard arguments on the matter again on June 9.