“There is no Sixth Amendment right to have counsel present for a classified, pretrial determination,” according to the government.

Courts had been asked by defendants to disclose details related to United States government applications for surveillance, which were authorized by the Foreign Intelligence Surveillance Court, many times before. The judge had ruled on the legality of the surveillance without ordering the disclosure of classified information to a defendant. However, in January, in a federal case in Chicago involving a young Muslim, who was arrested in an undercover sting operation by the FBI and accused of plotting a terrorist attack, the judge ordered the government to provide the information to the defense.

Defense counsel for Adel Daoud claimed to have the proper security clearance to view classified information and so, Judge Sharon Coleman ruled, “Without a more adequate response to the question of how disclosure of materials to cleared defense counsel pursuant to a 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 government is now panicked and filed an appeal on March 31. It argues, “If permitted to stand, the district court’s order would impose upon the government a lose-lose dilemma: disclose sensitive classified information to defense counsel—an option unlikely to be sanctioned by the owners of that information—or forfeit all FISA-derived evidence against the defendant, which in many cases may be critical evidence for the government.”

The judge declared in her ruling 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.” But, the government adamantly objects to this legal interpretation.

“A court could always say that an adversarial proceeding would be the ‘best’ way to determine the legality of the FISA collection. To compel disclosure on that basis would trivialize FISA’s necessity standard and work a sea change in FISA litigation,” the government suggests.

The government maintains the court should have had no difficulty determining that there was probable cause to place Daoud under surveillance because he was an “agent of a foreign power” and a “significant purpose of the collection was to obtain foreign intelligence information.”

“There is no Sixth Amendment right to have counsel present for a classified, pretrial determination,” according to the government. It then adds, “The government’s compelling interest in protecting ongoing national security investigations and intelligence sources and methods, coupled with the protections found in other parts of FISA, justifies limiting the defendant’s right to review the FISA applications and orders, especially given the relatively straightforward task of assessing probable cause, which district courts do on a regular basis when approving or evaluating criminal search warrants.”

The view of the government is that the executive branch is able to make judgments about the disclosure of classified information, not the judicial branch.

“FISA does not call for district courts to estimate the ‘potential danger of disclosure,’ scrutinizing the executive branch’s judgment that disclosure to the defense would harm national security.” Furthermore, the defense counsel must have a “need-to-know.”

It all is very similar to the posture of US government attorneys in most national security cases, where they will invoke state secrets to curtail the ability of the defendant or plaintiff to challenge government policies or processes.

As explained in a brief filed with the court, here is why the defense believes it should get to see the FISA applications:

…Such disclosure is fundamentally important because it may very well reveal how the FBI initially focused on Defendant—a critical fact that has been withheld. The origins of this investigation, whether through FISA, the FAA, bulk internet metadata collection, pen register/trap & trace authorization, warrantless wiretap, a “back door” search on traditional FISA collection, or some other unknown surveillance program, is essential for the Court to accurately determine the legality of the surveillance. Recently disclosed FISC opinions underscore the importance of knowing the exact basis of how, when, and why the FBI started looking at Defendant, particularly in terms of how different surveillance programs require specific statutory notice and also how the different programs have had specific legal and compliance problems…

In the aftermath of disclosures from former NSA contractor Edward Snowden, Attorney General Eric Holder announced in November that the Justice Department would begin to notify defendants when evidence gathered under FISA was collected. This created the potential that defendants would begin to attempt to challenge the constitutionality of warrantless government surveillance.

Clearly, the government will continue to put up a fierce struggle because they recognize the power this would give to defendants, which could make it much harder to advance prosecutions. It is particularly remarkable that this is happening in the case of Adel Daoud, which seems to be another example of the FBI manufacturing a terrorism case for the federal government to prosecute.

For background on the Daoud case go here and here