The Secret Hearing
After the district court’s decision in United States v. Daoud, 12 Cr. 723, 2014 WL 321384 (N.D.Ill. Jan. 29, 2014) , oral argument before a panel of the federal Court of Appeals for the Seventh Circuit was held on June 4, 2014. After about thirty minutes of argument in open court, Judge Richard Posner ordered the courtroom cleared for “a secret hearing.” Prior notice had not been provided to the defense attorneys, and Mr. Daoud’s entire defense team as well as all journalists and spectators were required to leave. Only U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials remained in the locked courtroom for the secret session, which lasted for about thirty minutes. After the hearing, the panel issued a classified ex parte order requiring the government to provide it with additional information.
Judge Posner’s Majority Opinion
On June 16, 2014, the Seventh Circuit panel reversed Judge Coleman’s order requiring disclosure of the FISA applications and related materials. United States v. Daoud, 14-1284, 755 F.3d 479 (7th Cir. 2014). Despite the seeming conflict between Senator Feinstein’s citation of Mr. Daoud’s case as an example of the successful use of Sec. 702 surveillance and the government’s denial of any intent to use material derived or acquired from Sec. 702 surveillance in Mr. Daoud’s prosecution, neither Judge Posner’s majority opinion nor Judge Rovner’s concurrence mentioned the issue of whether material derived or acquired through Sec. 702 surveillance would be used.
In his opinion, Judge Posner reasoned that under 50 U.S.C. Sec. 1806(f), once the Attorney General filed an affidavit stating that the disclosure of the FISA application and related materials in Mr. Daoud’s case would harm the national security, Judge Coleman was obligated to make an in camera, ex parte determination of whether the surveillance in the case was legal. The statute permits disclosure to the defense only if, in the course of a nonpublic, non-adversarial attempt to determine the legality of surveillance, a judge finds that disclosure is necessary for an accurate determination. Judge Coleman violated the statute by ordering disclosure without first attempting to make the requisite determination on her own.
In addition to this statutory argument, Judge Posner evinced skepticism about the worth of public, adversarial proceedings. Accusing Judge Coleman of the position that “adversary procedure is always essential to resolve contested issues of fact” (755 F.3d at 482 ), he listed non-adversarial and nonpublic proceedings that occur in federal court, such as determinations of the legality of class action settlements or sentences and the routine concealment of “trade secrets.” The occasional use of non-adversarial and nonpublic proceedings does not speak, however, to Judge Coleman’s concern with whether “an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding.” 12 Cr. 723, 2014 WL321384 at *3 (N.D.Ill. Jan. 29. 2014).
In addition, Judge Posner insinuated that Judge Coleman’s decision was based on a naïve trust in defense counsel’s security clearance. Quoting her statement that “the government had no meaningful response to the argument by defense counsel that the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances,” he proceeded to respond on the government’s behalf. “Though it is certainly highly unlikely that Daoud’s lawyers would, Snowden-like, publicize classified information in violation of federal law, they might in their zeal to defend their client, to whom they owe a duty of candid communication, or misremembering what is classified and what not, inadvertently say things that would provide clues to classified material.” .755 F.3d at 484. In addition to attacking defense counsel, Judge Posner evinced skepticism about the government’s procedures for granting security clearances. “There are too many leaks of classified information – too much carelessness and irresponsibility in the handling of such information ….” Id..
Judge Posner went on to hold that a remand to the district court was not needed. From the panel’s own review of the classified materials in the case, “[s]o clear is it that the materials were properly withheld from defense counsel that there is no need for a remand to enable the district judge to come to the same conclusion, because she would have to do so.” Id. In addition, Judge Posner held that the surveillance in the case was legal. He promised to “issue a classified opinion explaining (as we are forbidden to do in a public document) these conclusions ….” Id..
In conclusion, Judge Posner dismissed the defense objection to the closed hearing as “ironic.” Equating questioning by judges behind close doors with cross examination by defense counsel, he stated that, “The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant.” Id.
Judge Rovner’s Concurrence
Although she joined Judge Posner’s opinion, in her concurrence, Judge Ilana Rovner dwelt on the conflict between the confidentiality provisions of FISA and the need for defendants to have an opportunity to show that government misrepresentations were the basis for probable cause findings and the issuance of warrants. Hearings under Franks v. Delaware, 438 U.S. 154 (1978), provide this opportunity in ordinary criminal cases. By contrast, in FISA cases, the confidentiality of warrant applications and related materials makes it nearly impossible for the requisite showing to be made to obtain a Franks hearing. Despite cogently explaining why defense input may be needed for judges to realize that seemingly plausible government evidence is fabricated, Judge Rovner claimed that the problems could be mitigated where, as in Mr. Daoud’s case, “the FISA application is based in part on a defendant’s documented statements.” 755 F.3d at 494. “The court could ask the government to produce complete copies of [the documented defense] statements [on which it relies] for review in camera. … [This] would enable the court to verify that [the statements] were fairly recounted in the FISA application—both in the sense that the defendant was not misquoted and in the sense that the government did not omit portions of a statement that were critical for context.” Id. at 494-95. Defense input might still be necessary, however, for judges to realize that seemingly unambiguous statements are subject to interpretation. In addition, the documented defense statements submitted for a warrant application might be at odds with further evidence of which the defense, but not the court, is aware.
The Supplemental Classified Opinion
On July 14, 2014, the Seventh Circuit panel reached the decision in its Supplemental Classified Opinion, 761 F.3d 678 (7th Cir. 2014).