- - Monday, February 3, 2014

In the latest fallout from Edward Snowden’s leaks of classified information, a federal court last week dealt an unprecedented blow to the government in criminal prosecutions where a defendant has been subject to communications intercepts under the Foreign Intelligence Surveillance Act.

For the first time in FISA’s 36-year history, a federal district judge ordered the Department of Justice to disclose to the defense the government’s application for FISA surveillance of the defendant — despite an affidavit from Attorney General Eric Holder Jr. stating that such disclosure would harm U.S. national security.

The case thus represents a further erosion in the judiciary’s willingness to accept government invocations of “national security” without more critical examination.

The ruling occurred in the case of United States v. Daoud, where the defendant is charged with attempting to use a weapon of mass destruction — a federal terrorism offense — and attempting to destroy a building by using an explosive.

FISA expressly permits the use of evidence derived from FISA surveillance in criminal prosecutions and, as required, the government notified the defense of its intent to use FISA-derived information in its case against the defendant, Adel Daoud.

However, FISA also permits defendants apprised of FISA surveillance to file a motion to suppress the government’s use of FISA information at trial — just as a defendant in an ordinary criminal case may move to suppress the fruits of a search claimed to be unconstitutional.

As in most cases in which the government has provided FISA notice to the defense, Mr. Daoud filed a motion asking the court to order the disclosure of the government’s classified application for FISA surveillance so that he can lodge a more informed challenge to the legality of the surveillance.

The government strongly opposes defense motions seeking the disclosure of FISA applications, and the courts have permitted the government to litigate its opposition by filing classified ex parte briefs unseen by the defense, even where defense counsel has a security clearance.

Thus, historically, court rulings on the legal sufficiency of FISA applications have taken place without the benefit of any adversarial proceedings.

The government’s resistance to disclosing FISA applications is understandable: FISA applications include a detailed affidavit from a law enforcement agent or intelligence official containing intelligence information — often including references to sensitive collection sources and methods — in support of a judicial finding that there is probable cause for the requested FISA surveillance.

Although the government historically has sought to persuade judges that disclosing a FISA application to the defense would jeopardize U.S. national security interests, in recent years it has relied heavily on the argument — as it did in the Daoud case — that no judge previously had ever granted a defense motion seeking discovery of a FISA application.

Particularly in the era after Sept. 11, 2001, no judge was willing to be the first to break judicial ranks and grant such a motion. Until now.

In some respects, the court’s ruling is not surprising. FISA expressly authorizes a court to disclose to an “aggrieved person” (the person whose communications were intercepted by FISA surveillance) “portions” of the government’s FISA application and other materials relating to FISA surveillance, albeit “under appropriate security procedures and protective orders” and “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”

Given the numerous national security prosecutions where FISA surveillance has been at issue, it was inevitable that some judge at some point would reject the government’s standard arguments for denying the defense access to FISA applications to challenge their legal sufficiency.

Moreover, the court’s ruling in the Daoud case could be construed as a logical extension of President Obama’s Jan. 17 proposal — directly resulting from the controversy over the Snowden disclosures — that a panel of nongovernmental advocates be established “to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court.”

The president’s proposal was vague and limited, but it opened the door (if only by a crack) to a process that heretofore has been completely closed to outside, adversarial testing.

The practical consequences of the Daoud court’s ruling are likely to be limited. The court permitted only the defendant’s defense attorney, who has a top-secret security clearance, to examine the FISA application, and only under the restrictions of an unspecified protective order.

Any hearing that later may occur regarding the legality of the FISA surveillance at issue will be in a classified setting closed to the public. Nor will the court’s ruling open the floodgates to a wave of cases in which the government is denied the FISA surveillance it seeks.

Based on my own experience as a federal prosecutor in terrorism cases, FISA applications typically include ample probable cause to authorize surveillance, and most district court judges will continue to grant the government’s applications for FISA warrants.

The judge’s order is not binding on any other federal courts (or even on fellow judges in the same judicial district), and it may be overturned on appeal. Nor will this court’s decision necessarily lead to a succession of similar decisions.

Most district court judges will continue to defer to the government’s arguments that judges — and judges alone — should review FISA applications for legal sufficiency.

In the near term, however, the ruling in the Daoud case may have a chilling effect on the willingness of the FBI and other government agencies to transform intelligence investigations into criminal prosecutions if the potential defendants have been under FISA surveillance, as they will have cause for greater concern that sensitive intelligence sources and methods may be compromised.

David H. Laufman is a former chief of staff to the deputy attorney general and assistant U.S. attorney in the Eastern District of Virginia.

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