#7thcircuit

Adel Daoud is a 20 year old American citizen suspected of attempting to carry out a terrorist plot in Chicago set up by the FBI in 2012.  According to court records, Daoud first appeared on the FBI's radar after it was discovered that he was posting messages online about killing Americans.  Thereafter, Daoud was wiretapped, surveilled, and sold a phony car bomb by FBI agents, all through warrants and court orders issued by the secret FISA court.

In preparation for Daoud's November 10th trial, his defense counsel requested that the trial judge permit them discovery of the FISA court records in order to properly determine whether there were any violations of constitutional protections which would in effect invoke the "fruit of the poisonous tree" doctrine for their client, absolving him of the majority of the charges against him.  The Chicago Tribune reported on the trial judge's ruling on the request:

Earlier this year, U.S. District Judge Sharon Johnson Coleman took the unprecedented action of ordering prosecutors to give Daoud’s lawyers access to confidential surveillance materials used in the government investigation, including search warrant applications that had been presented to the secretive Foreign Intelligence Surveillance Act court. It was the first such ruling in the 36-year history of FISA.

The prosecution appealed the trial court's decision, bringing the issue to the attention of the 7th Circuit Appeals Court.  Just yesterday, oral arguments were heard by the three-judge panel of the appeals court.  As would be expected, the court disagreed with the lower court's decision.  According to the AP:

At the time, she [Judge Coleman] said allowing the defense to vet potential evidence would help guarantee Daoud's right to a fair trial. She said the fact that no judge had ever granted such FISA access before wasn't a reason not to do it now.

But during sometimes blistering questioning of the defense, Judge Richard Posner said Judge Coleman failed to thoroughly evaluate the FISA records herself before agreeing to open them up to the defense.

Another of the appeals court panelists, Judge Ilana Diamond Rovner, added that Coleman appeared to have "discarded" applicable FISA law and come up with her own justification for opening the records.

But in a surprising twist of the case, after the arguments by both sides were concluded, the appeals court took an unprecedented procedural action and vacated the courtroom to hold a private 'secret' session.  The Chicago Tribune reported:

As the arguments concluded, Judge Richard Posner announced the public portion of the proceedings had concluded and ordered the stately courtroom cleared so the three-judge panel could hold a “secret hearing.” Daoud’s attorney, Thomas Anthony Durkin, rose to object, but Posner did not acknowledge him. Deputy U.S. marshals then ordered everyone out – including Durkin, his co-counsel and reporters.

Only those with the proper security clearance -- including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials – were allowed back in the courtroom before it was locked for the secret session.

Durkin, a veteran Chicago lawyer, said outside the courtroom he was not notified in advance that there would be a secret hearing and called the move unprecedented.

“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.”

Interestingly, the Guardian also reported yesterday about secret court sessions, noting that a major terrorist trial in the United Kingdom may be closed to the public, the first time a criminal trial has not be open in the country's history.

The United States has a long history and tradition of open court access, especially in criminal cases under the Sixth Amendment right to a "speedy and public trial." However, examples of secrecy in American litigation abound, from the FISA Court noted above, to secret grand jury proceedings, to court protective orders, ex parte motions, and court approved secret settlement agreements. Each of these have long and persuasive legal justifications on their own, but I wonder whether the increasing use of secret hearings, motions, and procedures - especially in national security/terrorism cases - has slowly eroded our collective sense of a "public" court system?