Thomas Durkin, one of the defense attorneys for Adel Daoud

The defense for a young Muslim who was arrested outside a Chicago bar in an undercover FBI sting operation and charged with trying to blow up the bar has submitted a motion objecting to a secret session that was held in court over access to secret surveillance records. Defense attorneys were barred from being present. Only people from the US Attorney’s Office, the FBI, and “other agencies” were allowed, despite the fact that court proceedings were supposed to be open to the public.

It is the latest development in the case of Adel Daoud, who 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. The government immediately appealed this decision.

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 appeals court judges ordered the press, “spectators,” and defense to leave during argument so the prosecutors could have a secret session on the surveillance records at issue in the case. The objections of one of Daoud’s attorneys, Thomas Durkin, went completely ignored.

As described in the motion, which asks for relief from the court, Durkin objected but was not permitted to be heard. A reporter from Bloomberg News, Andrew Harris, also objected to “being forced from the courtroom but was also unable to do so for the record.”

“A few minutes after the courtroom was cleared, a Court Security Officer appeared at the door of the courtroom with a list, which he announced had the names of all those cleared to attend the closed session,” the motion recounts. “Undersigned counsel, Durkin, asked if his name or the names of any defense counsel were on the list.”

…The Court Security Officer said that there were no names of defense counsel and only the names of individuals from the U.S. Attorney’s Office, the FBI, and “other agencies.” The Court Security Officer indicated that there were about 26 names on the list. The Court Security Officer then ordered all those who had been cleared for the hearing to line up for admission to the courtroom. Undersigned counsel observed the United States Attorney for the Northern District of Illinois, his First Assistant, and individual prosecutors who have no known connection to this case to be among those permitted entry into the courtroom… [emphasis added]

It is estimated that this secret one-party session lasted as long as the public portion of the hearing.

Given that, the defense motion moves to “strike” the entire session from the record. It also moves to preclude any further sessions like this where classified submissions are made by the government of which the defense is not informed.

The motion argues that the “abuse of discretion standard of review does not permit this court to conduct its own fact-finding and exercise its own, independent discretion” based on a one-party, classified record. The appeals court is to consider the legal standards yet apparently the appeals court veered into fact-finding during its secret session because boxes of evidence were brought in by prosecutors.

“It would exceed the abuse of discretion standard of review, the scope of the issues presented on appeal, and the proper role of an appellate court if this Court were to use the classified proceedings to consider any additional issues not reached by the district court and not briefed by Appellee—particularly an issue as important as the very merits of the motion to suppress the fruits of the FISA surveillance,” the motion additionally argues.

Defense attorneys not only believe they have a right to FISA materials but they have suggested the records would probably show how the FBI entrapped Daoud.

As I have previously noted in coverage of this case, 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.

But the judicial system has a stunning record of non-disclosure that goes back to when FISA was first passed by Congress after the Church Committee hearings challenged abusive domestic surveillance. Prosecutors have infected the criminal justice process with their national security arguments and hope they are able to prevent this case from turning into a landmark case where defendants appropriately cross-examine how they came to be a target of an FBI counterterrorism operation.