A federal appeals court in Chicago ordered a redo of an oral argument in a case where the government filed an appeal against a defendant’s access to secret surveillance records.
Adel Daoud, a young Muslim who was arrested outside a Chicago bar in an undercover FBI sting operation, is charged with “attempting to use a weapon of mass destruction” and “attempting to destroy a building by means of an explosive.” A district court judge granted his defense team access to “foreign surveillance materials” under the Foreign Intelligence Surveillance Act (FISA), which was unprecedented.
On June 4, the 7th Circuit US Court of Appeals held argument on the government’s case for why the district court’s ruling should be reversed. The “public argument” part of the hearing was not recorded.
“By inadvertence, the device that makes a sound recording or the oral arguments of our cases was not turned on for the public argument in this case on Wednesday,” according to a court order issued on June 6. The court scheduled a new argument for June 9.
A do-over was ordered to dispel any perception of corruption.
“Because [of] the inadvertent failure to record the argument occurred in a high‐profile case involving very serious criminal charges against the appellee, we have decided to take the unusual step of ordering a second oral argument even though the case itself is not being reheard, whether by the panel or by the full court, following the issuance of a decision,” the court indicated.
Recording oral arguments is not required by law. However, the 7th Circuit appears to recognize that having this level of transparency is good practice. It helps to ensure the public right of access.
Yet, one might wonder about the “inadvertence” of this error or mistake. It is often routine to check that devices or equipment are functioning before proceeding with arguments in a courtroom.What happened was not simply a mistake on the part of the clerks in the courtroom. Those who do this daily were feeling the tentacles of the national security state as they reached into the process, as has become typical in the past decade.
From the Chicago Tribune:
Gino Agnello, the clerk for the 7th Circuit U.S. Court of Appeals, said employees in charge of turning on the recording equipment were intimidated by the unprecedented security surrounding the case and mistakenly thought they weren’t supposed to record it. Before the arguments began, a U.S. Department of Justice team had swept the courtroom for bugs, and extra security measures remained in place for the hearing in the case of Adel Daoud, he said.
“It was intimidating…My guys frankly assumed they weren’t supposed to record it,” Agnello said. “We screwed up, and there is no excuse.”
Those who are regularly a part of this process were made to feel that there was something extraordinary happening and that is a hallmark of these kind of criminal cases. The amping up of fear is a critical part of any prosecution.
Thomas Durkin, Daoud’s attorney, did not seem to take this to be some innocent error. “This is simply more proof of the two-tiered justice system that’s developing in this country out of national security fear-mongering, and it now appears to have been able to influence a court that is the most hyper-technically cautious court that I have ever practiced in,” he declared.
The fear was further amped when the appeals court judges ordered the press, “spectators,” and defense to leave during oral argument so the prosecutors could have a secret session on the surveillance records in the case. Even though the argument should have been limited to the law and legal interpretations of it, the prosecutors were apparently not confident they could win on those merits. Prosecutors needed to show some evidence in the case to spook the judges into reversing the district court’s decision (even though the grilling of defense attorneys suggested the appeals court had already made up its mind).
There is a very good reason why defense attorneys feel they should get to see the FISA materials—it could help show how the FBI entrapped Daoud.
Despite how these surveillance records could play a key role for defendants accused of serious crimes, such as terrorism, there has been very little resistance to the stunning record of non-disclosure. What the public has seen as compliance or complicity in government secrecy.
As noted a few days ago, disclosures from NSA whistleblower Edward Snowden made it possible to see how the government misled the FISA court and manipulated secret processes intended to provide a check on surveillance powers. That likely inspired the district court judge to take the bold move of granting defense attorneys access to surveillance records. However, it would appear this federal appeals court is still compromised by the national security state and unwilling to act independently of the fear prosecutors manufacture to maintain control over the courtroom.