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April 19, 2014

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Judge: Defense in terror case can see secret docs

Updated Wednesday, Jan. 29, 2014 | 3:43 p.m.

CHICAGO (AP) — The government can't keep secret its request to conduct clandestine surveillance of an accused attempted terrorist, a federal judge ruled Wednesday in a decision that gives defense attorneys unprecedented access to records from a secret intelligence court.

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 Foreign Intelligence Surveillance 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 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.

"The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding," Coleman wrote. "The adversarial process (where two sides argue for and against) is the bedrock of effective assistance of counsel protected by the Sixth Amendment (assuring a fair trial)."

In a related ruling earlier this month, Coleman ruled prosecutors did not have to disclose, one way or the other, whether the kind of expanded surveillance as revealed by Snowden was used to tip investigators off about Daoud. But the application related to Daoud could potentially indicate what led investigators to decide Daoud should be scrutinized further, be it an informant or the expanded surveillance.

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.

In her five-page opinion, the judge notes one of the government's arguments for not offering their courtroom adversaries access to applications submitted to the Foreign Intelligence Surveillance Court, or FISA court, was that it had never been done before.

"That response is unpersuasive," she wrote. "Without a more adequate response to the question of how disclosure of materials to cleared defense counsel pursuant to protective order jeopardizes national security, this court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel."

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. Known as the FISA court, 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.

Prosecutors and the defense argued the matter earlier this month.

Durkin implored Colemen during oral arguments to, in his words, restore "lost faith" in the judicial system by ordering the government to fully disclose how and whether it used enhanced spying techniques hotly debated worldwide.

Judge Coleman stopped short of going that far in her Wednesday ruling, saying that — at least for now — she was limiting defense access to the applications material to the FISA court. And additional ruling will be required to decide if they can use any information on the applications at trial.

Daoud's attorneys have also said that, if the government employed enhanced surveillance to flag Daoud and only then targeted him in the FBI sting, they intend to challenge the constitutionality of any subsequent evidence.

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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Follow Michael Tarm on Twitter at https://twitter.com/mtarm