After 30 minutes of public arguments, the U.S. Court of Appeals for the 7th Circuit called a closed-door “secret hearing” on Wednesday in the U.S. government’s appeal of an Illinois district court decision to open certain surveillance records to defense attorneys with top security clearances.
The three-judge panel ordered everyone without sufficient security clearance out of the courtroom, including reporters and the attorneys to defendant-appellee Adel Daoud. Daoud, who the government has suspected of terrorist activities, was charged with attempting to ignite a bomb at a Chicago bar in 2012.
In the public part of the hearing, a U.S. attorney argued that disclosure of surveillance records could harm national security. Judge Richard Posner then ordered the secret meeting, clearing the courtroom of everyone except those with proper security clearance, namely a U.S. attorney and FBI and Department of Justice officials.
“Not only do I not get to be there, but I didn’t even get to object,” Daoud’s attorney, Anthony Durkin, told the Chicago Tribune. “I had to object over the fact that I couldn’t even make an objection.”
Officials for the Tribune Company did not return requests for comment Thursday on whether the news outlet would challenge the closure.
Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said in an email that the judges’ prevention of access to the case evidence was “really disturbing.”
“I have to say that a secret hearing like this is simply unprecedented and shows the extent to which courts give the government the benefit of the doubt,” Fakhoury said.
In January, a district court ruled that Daoud’s attorneys could view Foreign Intelligence Surveillance Act materials to determine whether surveillance of their client was legal.
The attorneys had asked the court to disclose such information as the government’s applications for surveillance and the factual affidavits supporting the requests.
In response, the government stated that disclosure of FISA materials would harm national security, and an FBI official supported the claim. However, the district courted granted Daoud’s attorney the ability to view the sealed materials because the counsel already had top security clearance.
No court has ever disclosed FISA materials to a defendant, but District Court Judge Sharon Johnson Coleman said in her opinion that the risk of nondisclosure to defense attorneys with security clearances would outweigh the potential danger of disclosure.
“This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials,” Coleman wrote.
After the government appealed Coleman’s decision, the ACLU, the ACLU of Illinois and the Electronic Frontier Foundation filed an amicus brief in support of Daoud's access to the records. They argued that the government should not deny disclosure even though it has never granted this type of disclosure before.
Matthew Segal, of the ACLU Foundation of Massachusetts and counsel of record for ACLU’s amicus brief in this appeal, said that the government’s tradition of nondisclosure was not “shocking,” but demonstrates that the court’s interpretation of FISA strayed from its original purpose.
“It’s certainly not a good sign of the healthy functioning of FISA,” Segal said. “In fact, FISA was enacted in part to check government surveillance.”
Fakhoury said if the 7th Circuit reverses the district court’s decision, it will likely sustain the court’s trend of FISA nondisclosure, but the fact that a judge opened the records in one case is “a good sign.”
“It’s been too long that these documents have been kept under seal and under wraps from the defense attorneys,” Fakhoury said.