Last week, people all over the world were appalled to see that the UK government may, for the first time, conduct a criminal trial in complete secrecy. If the government gets its way, the public will never hear the names of the defendants, the specific charges against them, nor the government’s evidence to support those secret charges.
Here in the United States something eerily similar happened in the trial against Adel Daoud, who faces terrorism charges related to an FBI sting operation. Some background is required in order to understand its significance.
Last year, the US government admitted that some of the evidence against Daoud had been acquired through foreign intelligence collection. Back in 2012, Senator Dianne Feinstein raised Daoud’s prosecution as reason to reauthorize the controversial FISA Amendments Act (FAA), the law that institutionalized Bush’s warrantless wiretapping program. Evidence against Daoud had been obtained under authorities granted to the government through that law, she implied, holding up his prosecution as reason to extend the FAA for another five years.
The statute, Section 702 of which authorizes programs like PRISM, gives the government unconstitutional authority to monitor US persons’ international communications without warrants. In early 2013, the Supreme Court threw out an ACLU challenge to FAA on standing grounds. The highest court agreed with the government in the case, Amnesty v. Clapper, ruling that the ACLU couldn’t prove its clients had been spied on under the Bush administration-era law and therefore didn’t have a right to challenge it.
During oral argument in Clapper, the Court asked the government if defendants in criminal trials are or would be notified about the use of FAA-derived information in cases against them. If the ACLU and its clients cannot challenge the law, the question went, under what circumstances could someone do so, given that the surveillance programs are shrouded in secrecy? If a person needs proof that the government has used FAA to spy on them in order to challenge the law’s constitutionality, but the surveillance is secret, how will they ever find out? How can its constitutionality ever be examined?
The government told the Court that yes, defendants would be notified about the use of FAA derived intelligence if it was ever used to develop a criminal case against them. The Court subsequently tossed the ACLU suit, leaving the FISA Amendments Act and its broad surveillance authorities in place.
But after the Snowden revelations, we learned what the government said wasn’t true. The Solicitor General had misrepresented the facts to the Supreme Court. In an about-face, the DOJ announced a change in policy: now some defendants would be notified of FAA intelligence used against them, officials said.
After learning that FISA-derived information was used against their client, Daoud’s attorneys moved to obtain that intelligence to prepare an adequate defense. For the first time in 36 years, since the Foreign Intelligence Surveillance Act was signed into law, a court approved the motion for disclosure: Daoud would see the FISA related evidence against him. Predictably, the DOJ appealed the district court’s ruling, in a bid to keep the information secret from Daoud and his attorneys.
That brings us to last week, when on June 4, the US Court of Appeals for the 7th Circuit held argument on the issue of whether to disclose the "foreign intelligence" information to Daoud’s defense team, or to reverse the lower court's ruling. Critically, Daoud’s attorneys have suggested that the FISA-derived information may help them show that their client was entrapped by the FBI. Therefore the ruling won't just determine whether the constitutionality of the collection method can be challenged; it will also broaden or narrow the defense's ability to understand the circumstances that led to Daoud's arrest, and therefore attorneys' competence in defending him. (The ACLU and the ACLU of Massachusetts filed a friend of the court brief before the 7th circuit, arguing for disclosure.)
Last Wednesday, Daoud’s attorneys showed up to court ready to argue that the Obama administration has clearly indicated that defendants have a right to see the evidence against them, even if it comes from the FISA Amendments Act. The court heard the defense’s argument. And then something shocking happened: the defense team was told that there would be another hearing, in secret, with just the government and the Court. The defense had not been notified previously about the Court’s intention to allow the government to present evidence in secret. Presumably if they had, Daoud’s attorneys would have prepared arguments about what they might have expected the government to present. The failure to notify the defense of the plan to hold ex-parte hearings with just the government therefore arguably impeded Daoud's (already in-the-dark) defense team.
The lawyers were surprised by the announcement that they would be excluded from what turned out to be a one party argument, with the court hearing only the government. Marshals ejected from the courtroom Daoud’s lead attorney Thomas Durkin, a Bloomberg reporter, and other non-government parties.
And it gets worse. As journalist Kevin Gosztola reports, "apparently the appeals court veered into fact-finding during its secret session because boxes of evidence were brought in by prosecutors." While the question before the 7th circuit only revolves around whether or not Daoud’s attorneys have a right to see the FISA information, it’s therefore possible that the Court may rule much more broadly, preempting disclosure and a future constitutional challenge by declaring that the evidence in question was obtained legally. If that happens, it would be a tragic injustice for Daoud and for our legal system.
After all, what is the promise to notify defendants worth if the accused cannot see the actual evidence against them? And is the government showing evidence to judges in ex-parte sessions in order to intimidate or frighten them away from ruling in favor of disclosure? According to press reports, dozens of government officials from the DOJ, FBI, and "other agencies" were present for the ex-parte session last week. That’s quite a show of force.
These circumstances are different from those in the UK, where prosecutors hope to conduct an entire trial in the dark. But while we know Daoud’s name and the charges he faces, is it possible for him to enjoy his constitutional rights to due process and a fair trial if he cannot see the evidence the government has marshaled against him?
Notably, contra Dianne Feinstein, the government claims that the information it wants to keep secret doesn’t derive from the FISA Amendments Act—the subject of intense controversy and numerous constitutional challenges. Officials claim the information against Daoud was obtained through the traditional FISA process, which requires individualized court orders for surveillance against US persons. But how can we trust that’s true, given the security state’s record of misinforming judges and courts, misrepresenting the facts to the public, and perjuring in testimony before congress?
And even if it is true that the information came from a traditional FISA order, why can’t Daoud see it? Is the United States so fragile that granting full discovery on electronic surveillance in a criminal trial would bring down the republic?
Let’s hope the 7th circuit finds in favor of disclosure. Whispering the buzz words "state secrets" and "national security" into judges' ears and showing them potentially prejudicial evidence during process hearings in closed door proceedings shouldn’t be enough to flip our legal system on its head—especially given what we know about what the government is often hiding when it invokes these claims.
Here's the fundamental question raised by all of this:
UPDATE: The 7th circuit found for the government, ruling not just that the FISA information not be disclosed to Daoud's counsel, but even more broadly, that the underlying surveillance itself was legal. This latter ruling went beyond the scope of the question before the court. It's a big win for the government, and a loss not just for Daoud, but for everyone who wants to challenge the government's surveillance programs. From the ruling:
Not only do we agree with the district judge that it is possible to determine the legality of the government’s investigation of Daoud without disclosure of classified materials to his lawyers; our study of the materials convinces us that the investigation did not violate FISA. We shall issue a classified opinion explaining (as we are forbidden to do in a public document) these conclusions, and why therefore a remand to the district court is neither necessary nor appropriate.