Thomas Durkin, one of the defense attorneys for Adel Daoud

Defense attorneys representing a young Muslim who was arrested in an undercover FBI sting operation and accused of plotting a terrorist attack have urged a federal district court judge to uphold a landmark decision granting access to government surveillance records.

For over thirty-five years, the Foreign Intelligence Surveillance Act (FISA) has been law, supposedly making it possible for the government to balance the need to protect civil liberties with the government’s national security interests. A process was established for defendants accused of crimes to challenge surveillance collected under the law, if it were improper, but up until recently no court had ever granted a defense’s request for access to applications and orders by the government.

A judge ruled in favor of the defense in January and granted access to applications and orders under FISA.

The court order was the first of its kind in judicial history, and a panicked government responded with an appeal warning this could bring about a “sea change” in FISA litigation.

Adel Daoud, the defendant, is charged with “attempting to use a weapon of mass destruction” and “attempting to destroy a building by means of an explosive.”

On May 2, Daoud’s attorneys responded to the government’s appeal. They argue the judge should stand by her ruling because, “FISA applications for electronic surveillance of defendant’s email accounts may fail to establish probable cause that defendant, a high school student from suburban Chicago and United States citizen, was “an agent of a foreign power.” (A US citizen is supposed to be “an agent of a foreign power” in order for the FISA court to authorize surveillance.)

Also, according to the defense, the FISA applications may contain “falsehoods or omissions,” violating the Fourth Amendment. Surveillance “may have been based impermissibly on activity protected by the First Amendment.” The applications may show that the government was seeking to collect evidence of alleged domestic criminal activity, not “foreign intelligence information.”

Essentially, the government’s position is that only the executive branch should make decisions about disclosure of information related to FISA applications or orders, which are classified. The judge overstepped her authority by issuing this court order. The government also believes the judge should not have any questions about whether Daoud was an “agent of a foreign power” and so clearly it was legal and appropriate to conduct surveillance “to obtain foreign intelligence information.”

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

However, defense attorneys have a particular interest in accessing this material. They believe it could aid in their effort to argue Daoud was entrapped.

The reply brief filed explains the defense’s version of what happened with Daoud. Around May 2012, when he was eighteen, just out of high school and still living with his parents, “two FBI employees working online in an undercover capacity engaged him in discussion.”

“One FBI employee portrayed himself as a Saudi national who was planning to fight in Syria or Yemen,” according to defense attorneys. “The other claimed to be an Australian with an interest in ‘violent jihad.’ The two undercover FBI employees introduced defendant to an undercover FBI agent posing as an operational terrorist. Defendant met with the undercover agent six times between July 17, 2012 and September 14, 2012.”

“During the meetings, the undercover agent repeatedly pressed defendant to come up with ideas for domestic terrorist operations, including identifying specific targets. The agent appealed to defendant’s religious beliefs. He went so far as to agree to consult with a fictional sheikh for a ‘real fatwah’ when defendant expressed concerns about a domestic attack, after leaders at his mosque told him that violent jihad was wrong.

The defense believes that “recordings of these meetings” show Daoud was “naive and gullible.”

“On September 14, 2012, while in the company of the undercover agent posing as a terrorist, defendant attempted to set off a fake car bomb outside a bar in Chicago. Minutes before the attempt, defendant questioned the agent about whether they could kill women. The agent responded, ‘Yes,’ and explained that they could do so if the women were paying taxes and supporting the government.”

Daoud “asked, ‘But they never mentioned that women are halal [permissible] to kill. The only, the only brother mentioned that I’m like wait a minute, they also pay taxes and vote. You know. So that’s a good . . . oh, so this is just like Palestine?” The undercover agent responded ‘Yes’ and described the United States as a ‘monster with two heads.’ Minutes later defendant attempted to detonate the fake bomb and was immediately arrested.”

After addressing the legislative history of FISA, the defense states, “The stark fact is that the FISA system, interpreted by the courts to require ex parte proceedings [between government and judge] in every case and never to grant defense counsel access to FISA applications and orders, has failed to protect civil liberties.”

Both the Senate judiciary and intelligence committees recognized in the late 1970s, as the law was being passed and implemented, that judges had the power to deny disclosure to a defendant because the “legality of the surveillance” could be determined without disclosure. However, “possible misrepresentation of fact, vague identification of the persons to be surveilled or surveillance records which [include] a significant amount of nonforeign intelligence information” would call into questions whether procedures or standards had been followed by the government.

The committees believed that in these situations the court would order disclosure. Did they think in the history of FISA it would not be until now that a court would actually grant access to materials to a defendant?

Remarkably, it is National Security Agency whistleblower Edward Snowden, who has made it easier for defense attorneys to make these arguments in court and possibly win. Attorney General Eric Holder announced in November—months after disclosures began—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 to an extent not previously seen in the judicial system.

Released FISA court opinions, made public as a result of a court order and Snowden’s disclosures, demonstrate the government has committed statutory violations and made misrepresentations to the secret surveillance court before. Therefore, it is not outlandish anymore for lawyers to make arguments to a judge that the government is covering up improper surveillance or not being completely forthright and honest.

Finally, the government asserts that any disclosure of FISA materials to defense counsel will result in “irreparable damage” to national security. The defense does not consider this to be likely because the Classified Information Procedures Act (CIPA) is in place to ensure information is protected in judicial proceedings.

Protective orders can be issued to establish conditions for reviewing classified information, filing “classified pleadings” and to prohibit “anyone associated with the defense from revealing publicly the classified information to which access is granted.”

For 34 years, the system has protected “huge volumes of enormously sensitive classified information.” One defense counsel involved in this case had access to “nuclear weapon codes” while defending Taiwanese American scientist Dr. Wen Ho Lee. Government scientists testified that the codes could change the “strategic global balance’ and thus “represent[ed] the gravest possible security risk to the United States.”

“If the CIPA procedures could adequately protect those secrets (and other sensitive classified information in many other cases), they can surely protect the secrets contained in the FISA materials that the district court has ordered disclosed.”

On the other hand, national security claims have in multiple instances been exaggerated to justify government secrecy in cases. The government claimed if the Pentagon Papers were disclosed “grave damage to national security” would occur. In 1979, the government “sought to suppress” a story by Howard Morland called “The H-Bomb Secret,” “claiming that publication would cause immediate and irreparable harm to national security.” Such claims were made in Lee’s case to detain him “under extraordinarily strict conditions for nine months.” Publication and the release of Lee after a plea bargain did not result in any real damage to national security at all.

“Government invoked national security to convince a court to depart from statutory or constitutional standards; in each case, courts initially acceded to the government’s national security claims; and in each case, when the ‘doomsday’ event actually occurred, the government’s purported concerns proved unfounded.”

In the case of Daoud, lawyers hope the judge will see through the government’s strident national security claims and uphold the defense’s ability to review surveillance materials to put together a proper defense. And, if the judge’s decision stands, it not only would be attributable to Snowden but it would also be a potential pendulum shift in manner in which the FBI gets away with targeting and manufacturing terrorism cases in the United States.