United States v. Adel Daoud
755 F.3d 479, 2014 U.S. App. LEXIS 11140, 2014 WL 2696734 (2014)
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Rule of Law:
Under the Foreign Intelligence Surveillance Act (FISA), a district court must first conduct an ex parte, in camera review of classified surveillance materials to determine their legality. A court may only order disclosure of such materials to defense counsel if it finds, after its private review, that disclosure is necessary to make an accurate determination of the surveillance's legality.
Facts:
- Adel Daoud, an 18-year-old American citizen, posted messages online expressing interest in committing 'violent jihad' in the United States.
- In May 2012, Daoud began communicating with two undercover FBI employees who were posing as terrorists.
- An undercover FBI agent, posing as a 'cousin' and fellow terrorist, met with Daoud six times.
- Daoud selected a bar in downtown Chicago as the target for a bombing and was told the device would kill 'hundreds' of people, to which he replied, 'that’s the point.'
- On September 14, 2012, Daoud drove a Jeep containing an inert (fake) bomb supplied by the agent to the front of the bar.
- While in a nearby alley with the undercover agent, Daoud attempted to detonate the fake bomb.
- After his arrest, while incarcerated, Daoud allegedly tried to solicit the murder of the undercover agent he had dealt with.
Procedural Posture:
- The U.S. Government indicted Adel Daoud in the U.S. District Court for the Northern District of Illinois on terrorism-related charges.
- The government notified Daoud of its intent to use evidence obtained or derived from surveillance authorized under the Foreign Intelligence Surveillance Act (FISA).
- Daoud's counsel filed a motion in the district court seeking access to the classified FISA warrant applications.
- The government opposed the motion, and the Attorney General filed an affidavit stating that disclosure would harm national security, triggering an ex parte, in camera review process.
- The district court judge, after reviewing the materials, granted Daoud's motion and ordered the government to disclose the classified materials to Daoud's security-cleared defense counsel.
- The U.S. Government (appellant) filed an interlocutory appeal of the district court's disclosure order to the U.S. Court of Appeals for the Seventh Circuit, with Daoud as the appellee.
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Issue:
Does the Foreign Intelligence Surveillance Act (FISA) permit a district court to order the disclosure of classified surveillance materials to security-cleared defense counsel without first making a specific finding that such disclosure is 'necessary' to accurately determine the legality of the surveillance?
Opinions:
Majority - Posner, Circuit Judge.
No. The Foreign Intelligence Surveillance Act requires a district judge to first conduct a private review of classified materials and only permit disclosure if it is strictly necessary to determine the surveillance's legality. The statute, 50 U.S.C. § 1806(f), creates a mandatory, sequential procedure where the judge must first attempt to determine the legality of the surveillance through an ex parte, in camera review. Disclosure is only authorized if, after this review, the judge finds it is 'necessary' for an accurate determination. The district judge failed to make this required finding of necessity; in fact, she stated she was 'capable' of making the determination herself, which negates any claim of necessity. The court rejected the argument that defense counsel's security clearances mitigate the national security risks of disclosure, noting the potential for inadvertent leaks and the principle that a security clearance does not grant automatic access to all classified information.
Concurring - Rovner, Circuit Judge.
No. While joining the majority's statutory analysis and conclusion in full, the concurrence addresses the structural problem of applying the Fourth Amendment challenge established in Franks v. Delaware in the FISA context. A Franks challenge requires a defendant to make a 'substantial preliminary showing' that a warrant affidavit contained deliberate or reckless falsehoods, which is practically impossible when the defendant has no access to the classified FISA application. The opinion argues that the secrecy of the FISA process renders this crucial check on government power a 'dead letter.' It calls upon the judiciary to acknowledge this problem and find accommodations, and for the other branches of government to consider reforms, to ensure the Fourth Amendment's protections are not rendered meaningless in national security cases.
Analysis:
This decision strictly interprets the procedural requirements of FISA, reinforcing the high barrier defendants face when challenging national security surveillance. By mandating a finding of 'necessity' before any disclosure, the court prioritizes governmental secrecy and national security interests over the principles of an adversarial process, even for security-cleared counsel. The ruling solidifies the judge's ex parte, in camera review as the primary, and often sole, check on the legality of FISA surveillance. However, Judge Rovner's concurrence highlights significant judicial concern that this framework may effectively eliminate a defendant's ability to meaningfully exercise their Fourth Amendment right to challenge the veracity of a warrant, suggesting an unresolved tension in the law.
