In January 2014, US District Court Judge Sharon Johnson Coleman ordered (PDF) that Daoudâs counsel, who has the necessary security clearances, could view the surveillance application that the government made to the FISC. Further, Daoudâs counsel could be allowed to advocate for their position in court, with the governmentâs lawyers also present.
âWhile this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds the disclosure may be necessary,â Judge Coleman wrote. âThis finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. 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. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment.â
But the government appealed, and it won in the Monday ruling.
In a 35-page ruling, though, Judge Richard Posner disagreed with this reasoning, noting that courts often have non-adversarial hearings, known as ex parte, where only one side is heard from. Further, he wrote, just because Daoudâs lawyers may have some kind of security clearance, they may not have the necessary clearance in this case, as there are multiple levels of security classification.
âOur study of the materials convinces us that the investigation did not violate FISA,â he concluded. âWe 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.â
âFinally, for future reference we suggest that when a district judge is minded to disclose classified FISA materials to defense counselâa decision bound to precipitate an appeal by the governmentâthe judge issue a classified statement of reasons, as it probably will be impossible to explain in an unclassified opinion all the considerations motivating her decision. In this case, however, our review of the materials persuades us both that there was no basis for disclosure and that a remand would be of no value,â Posner wrote.
Daoud could appeal further to the United States Supreme Court, which only agrees to hear a tiny portion of cases that petition it.
We assure you that the secret evidence we have gathered against you using a secret warrant is very compelling. We have issued a secret ruling to that effect, and urge any lower courts to be more secret about this in the future.
