Surveillance Defense in terror case challenges exclusion from court session on surveillance records

The defense for Adel Daoud, a young Muslim man who was arrested outside a Chicago bar in an undercover FBI operation and charged with attempting to blow up the bar, has submitted a motion objecting to a private court session held to discuss the defense’s access to classified   records. Earlier this year, Judge Sharon Johnson Coleman of U.S. District Court for the Northern District of Illinois granted Daoud’s defense team access to classified   materials obtained under the Foreign Intelligence Act (FISA), an unprecedented move, but prosecutors immediately appealed the court’s decision (see “A first: Judge in terrorism case rules defense may examine government secret FISA application,” HSNW, 30 January 2014).

On 4 June 2014, the 7th Circuit U.S. Court of Appeals listened to prosecutors’ argument for why the district court’s ruling should be overturned. The appeal trial proceeded with Deputy U.S. marshals ordering all viewers out of the court —  including defense attorney Thomas Durkin and his co-counsel. “After about five minutes, marshals let back into the courtroom federal officials with the proper security clearance, including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about two dozen FBI and U.S. Department of Justice officials,” the Chicago Tribune reported. “Boxes of what was apparently evidence in Daoud’s case were also brought into the courtroom before it was locked.”

“Not only do I not get to be there, but I didn’t even get to object,” Durkin said. “I had to object over the fact that I couldn’t even make an objection.”

The Dissenter reports that Durkin’s motion to remove the complete private court session from trial records also seeks to prevent further sessions in which classified submissions are made by the government without a member of the defense marked present. “It would exceed the abuse of discretion standard of review, the scope of the issues presented on appeal, and the proper role of an appellate court if this Court were to use the classified proceedings to consider any additional issues not reached by the district court and not briefed by Appellee — particularly an issue as important as the very merits of the motion to suppress the fruits of the FISA  ,” the motion argues.

Durkin believes that he has a right to FISA materials regarding Daoud’s case, moreover, the now classified materials may reveal how Daoud was led into attempting to blow up the Chicago bar.