The district court’s grant of disclosure in defendant Daoud’s challenge to warrantless surveillance

United States v. Daoud, 12 Cr. 723 (N.D.Ill. filed Sept. 15, 2012)

Mr. Daoud was charged with attempting to use a weapon of mass destruction and attempting to destroy a building by means of an explosive. In December 2012, Senator Dianne Feinstein named Mr. Daoud’s case on the Senate floor as one of two cases that showed that warrantless surveillance under Section 702 “has worked.” Notwithstanding Senator Feinstein’s statement, the government responded to a defense motion by denying any intent to use information acquired or derived from Sec. 702 surveillance.

The District Court’s Decision Granting Disclosure

In response to defense discovery motions and on the basis of an open hearing held on January 3, 2014, Judge Sharon Johnson Coleman became the first judge to order the government to disclose its FISA applications and related materials to the defense. In her unpublished order of January 29, 2014, Judge Coleman explained that disclosure to the defense was necessary because “an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding.United States v. Daoud, 2014 WL 321384 at *3. The judge conditioned the disclosure of the FISA applications and materials upon a showing by defense counsel that his top secret SCI (sensitive compartmented information) clearance was still valid, and stated that disclosure would be conducted under a protective order consistent with procedures already in place for the review of classified materials by the court and government counsel.

The court stayed its order pending appeal.

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