Two civil rights groups today urged a federal appeals court in Chicago to uphold a district judge's unprecedented order that confidential court filings by the government in a local terrorism prosecution be disclosed to the defense.
Federal prosecutors are appealing U.S. District Judge Sharon Johnson Coleman's recent order that they disclose to attorneys for Adel Daoud applications for surveillance and wiretaps in the terrorism case that the defense is typically barred from viewing. They argued in a court filing in March that Coleman “disregarded the heavy burden” the Foreign Intelligence Surveillance Act demands in justifying such a disclosure.
In a 46-page brief filed today with the 7th Circuit U.S. Court of Appeals, the American Civil Liberties Union and the Electronic Frontier Foundation wrote the government’s position is “an appeal to inertia” that has built up over decades of similar overstated claims.
The claims by the government also disregard a recognition by Congress that there needs be a balance between maintaining security and hiding information that could be used to help a criminal defendant’s case, according to the friend-of-the-court brief.
“The government’s view— that disclosure has never been warranted— does not respect Congress’s decision to strike a ‘reasonable balance,’” the filing stated. “It respects no balance.”
The 7th Circuit decision will be closely watched as the U.S. government continues to deal with fallout from the controversial government spying programs revealed by former National Security Agency contractor Edward Snowden.
Daoud, now 20, came under FBI scrutiny after posting messages online about killing Americans, authorities have said. The Hillside man was arrested in September 2012 after allegedly trying to detonate what he thought was a car bomb outside a bar in the Loop. FBI analysts posing as terrorists exchanged messages with Daoud and ultimately helped him plan an attack.
In her unprecedented decision earlier this year, Coleman cited the right to effective counsel in ordering prosecutors to turn over government search warrant applications that had been presented to the secretive FISA court to justify surveillance on Daoud. Coleman held off on the release after prosecutors notified the court of their intent to appeal.
Daoud's lead attorney, Thomas Anthony Durkin, has said the defense team needs access to the materials to decide whether to challenge the search warrants on the grounds they violated Daoud's constitutional protection against unlawful searches and seizures.
Last week, Durkin filed a motion blasting prosecutors for overplaying the national security card.