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Judge: Defense in terror case can see secret docs

January 30, 2014

CHICAGO (AP) — The U.S. government can’t keep secret its request to conduct clandestine surveillance of an accused attempted terrorist, a federal judge in a Chicago terrorism case said Wednesday in a ruling that gives defense attorneys an unprecedented look at a request made to the country’s secret intelligence court for permission to spy on an American citizen.

U.S. District Judge Sharon Johnson Coleman said her ruling is the first time a defendant’s lawyers will be given access to an application prosecutors submitted to the intelligence court, which was established in 1978 to monitor spying within in the United States.

It’s not clear if the spying took place, but a judge said the government must make their request to do so available to his defense attorneys.

It is a rare win for the defense, which has pressed for the U.S. government to shed more light on how investigators employed the kind of phone and Internet spying revealed by ex-government contractor Edward Snowden.

The pretrial ruling is in the case of 20-year-old Adel Daoud, a U.S. citizen from suburban Chicago. He denies allegations he took a phony car bomb from an undercover FBI agent in 2012, parked it by a downtown Chicago bar and pressed a trigger.

The decision means they will be able to challenge prosecutors on the substance of the application. Prosecutors had wanted the judge to view the secret application herself behind closed doors — with prosecutors present, but with the defense locked out on security grounds.

Some observers said opening those applications to review in a criminal case could set a dangerous precedent. The documents can run more than 50 pages.

“The FISA applications have some of the most sensitive information there is about intelligence sources and methods,” said Ken Wainstein, a former adviser to President George W. Bush for Homeland Security and Counterterrorism. “If that information routinely got into the hands of people outside the intelligence community and the judiciary, it could compromise national security.”

In an email, Daoud’s lead attorney, Thomas Durkin, called it a “historic, courageous and very meaningful ruling to preserve the integrity of the adversarial process.”

The U.S. attorney’s office in Chicago declined any comment on the ruling. They would have the option of appealing Coleman’s ruling to the U.S. 7th Circuit Court of Appeals in Chicago sometime prior to Daoud’s trial, which is scheduled to begin on April 7.

The FISA court was set up by the 1978 Foreign Intelligence Surveillance Act in response to outrage over spying on activists and other U.S. citizens. Its judges sign off on wiretapping and search warrants used against foreign agents and suspected spies and terrorists and Americans involved with them.

It was FISA amendments passed in 2008 that allowed the government to obtain broad intercept orders from the court — raising the prospect that calls and emails between foreign targets and innocent Americans could be subject to surveillance.

To see the secret documents, Durkin would have to demonstrate he has attained the security clearance required — something the leading defense attorney in multiple terrorism case over the years has said he has.

Coleman said in her ruling Wednesday she was not an attempting to assert any opinion on the constitutionality of U.S. surveillance.

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