- Associated Press - Tuesday, February 11, 2014

CHICAGO (AP) - A federal judge said Tuesday she’ll wait for the appeals process to run its course before implementing her ruling that gives lawyers for a Chicago terrorism suspect access to secret documents spelling out how the U.S. government sought permission to spy on him.

The potentially far-reaching ruling last month was the first time any defense attorneys were granted permission to see such applications to the Foreign Intelligence Surveillance Court, established in 1978, U.S. District Judge Sharon Johnson said at the time.

At a hearing Tuesday, she agreed to prosecutors’ request to stay her ruling, meaning the documents will remain closed at least until the U.S. 7th Circuit Court of Appeals issues an opinion. Depending on the outcome, either side could then appeal to the U.S. Supreme Court.

The question of whether the secret-court, or FISA court, application will be shown in its entirety to Adel Daoud’s attorneys is being closely watched nationwide. Daoud, a 20-year-old U.S. citizen from suburban Chicago who pleaded not guilty to charges he took a phony bomb from undercover agents and sought to detonate it by a Chicago bar in 2012.

Lawyers for two brothers in Florida accused of plotting to detonate bombs in New York City submitted Coleman’s Jan. 29 ruling to their federal judge in Miami a day after she ruled, supplementing their own, still-pending motion to see the secret-court application in their case.

Ronald Chapman, the lawyer for one of the two suspects, Sheheryar Qazi, said in a phone interview Tuesday that it was unfair that attorneys in non-terrorism cases typically get to see warrant applications - but not in terrorism cases.

“But when it comes to FISA, we have to say, ‘Judge we trust your judgment … You tell us if there is anything wrong with the evidence (contained in the government’s application),” he said.

Prosecutors in Chicago filed a notice they were appealing late Monday in Daoud’s case. The trial had been slated to begin on April 7, but Coleman on Tuesday delayed it to an unspecified date in November, citing the appellate process over the secret court documents, which is likely to take months to resolve.

Prosecutors filed only a one-page document indicating the government is appealing Coleman’s January ruling. A full brief outlining their arguments for why the higher court based in Chicago should overturn it will be submitted later.

In filings before the ruling, prosecutors deemed the secret papers too sensitive and said “specific harm” could come from disclosing them. They urged her to follow standard procedure and examine them herself to determine if portions may be relevant to Daoud’s defense.

Some observers sympathetic to the government position have said opening the entire application to review in Daoud’s case could set a dangerous precedent, noting surveillance-court applications typically include details on secret sources and methods.

In her January ruling, Coleman said defense attorneys should, whenever possible, be able to view the whole gamut of evidence against their clients. She called it the “bedrock” of the Sixth Amendment’s guarantee of a fair trial.

Outside court Tuesday, Daoud’s lead attorney, Thomas Durkin, declined to speculate about whether the appellate court would uphold the ruling, saying the issues were “too unique to try and predict.” After Coleman’s ruling last month, he heralded it as “historic.”


Follow Michael Tarm on Twitter at https://twitter.com/mtarm.

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