On September 15, 2012, the government initiated criminal prosecution of Adel Daoud in the U.S. District Court for the District of Oregon after arresting Daoud the day before. The government charged Daoud with attempting to damage and destroy a building by means of explosion, in violation of 18 U.S.C. §§ 2332a(a)(2)(D) and 844(i). Daoud allegedly attempted to bomb a bar in Chicago with a fake bomb provided by an FBI sting. In August, 2013, the government added the charge of soliciting a crime of violence, murder for hire, and witness tampering, in violation of 18 U.S.C. §§ 373(a), 1958(a), and 1512(a)(1)(A), respectively. Daoud allegedly attempted to solicit someone to murder the undercover agent with whom he had dealt.
This case is in this Clearinghouse because the U.S. Court of Appeals for the Seventh District addressed the tension between the Foreign Intelligence Surveillance Act and the evidentiary investigation required by the test laid out in Franks v. Delaware, 438 U.S. 154 (1978), for determining the legality of a warrant. The Frans test allows a defendant to challenge a search warrant on the ground that it was procured by a knowing or reckless falsehood by the officer who applied for the warrant. More details on the underlying criminal litigation are provided at the end.
The government notified the defendant, pursuant to 50 U.S.C. §§ 1806(c) and 1825(d)-sections of FISA, 50 U.S.C. §§ 1801 et seq.-that it intended to present evidence at his trial derived from electronic surveillance that had been conducted under the authority of the Act.
Daoud responded through counsel with a motion seeking access to the classified materials submitted in support of the government's FISA warrant applications in order to determine the legality of the warrant to obtain access to Daoud's communications. The defense counsel sought to show that the evidence obtained or derived from the electronic surveillance was based on information that was unlawfully acquired or that the surveillance was not made in conformity with an order of authorization or approval, both being grounds for suppression. The defense counsel argued that it would be too difficult to conduct a Franks hearing without the classified materials that the government relied on in obtaining the warrant. Anticipating this difficulty, the drafters of FISA devised a solution: the judge makes the additional determination, based on full access to all classified materials and the defense's proffer of its version of events, of whether it's possible to determine the validity of the Franks challenge without disclosure of any of the classified materials to the defense.
In response to the defendant's motion, the government filed a heavily redacted, unclassified response, accessible to Daoud and his lawyers, and a classified version, accessible only to the district court, accompanied by an unclassified statement by the Attorney General that disclosure of the classified material, or an adversarial hearing with respect to it, "would harm the national security of the United States." The harm was detailed in a classified affidavit signed by the FBI's Acting Assistant Director for Counterterrorism.
Judge Sharon Johnson Coleman of the district court studied the classified materials to determine whether they should be shown to the defendant's lawyers, who had the necessary level of security clearances. On January 29, 2014, Judge Coleman ordered the materials to be turned over to the defense counsel. Judge Coleman acknowledged the unprecedented nature of the disclosure of FISA materials to a defense counsel, but held that "the adversarial process is integral to safeguarding the rights of all citizens," and that "the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances," Judge Coleman ruled that "the probable value of disclosure and the risk of nondisclosure outweighed the potential danger of disclosure to cleared counsel." United States v. Daoud, 2014 WL 321384 (N.D. Ill. Jan. 29, 2014). The order, though interlocutory, was appealable immediately, and the government appealed.
On June 16, 2014, the U.S. Court of Appeal for the Seventh District reversed the district court's order. Judge Richard Posner, writing for the court, held that Judge Coleman had failed to to conduct a proper ex parte in camera review to determine whether the defense counsel was entitled to the FISA material. Judge Ilana Rovner filed a concurring opinion. In addressing the Franks issue, Judge Posner wrote, "Thirty-six years after the enactment of FISA, it is well past time to recognize that it is virtually impossible for a FISA defendant to make the showing that Franks requires in order to convene an evidentiary hearing, and that a court cannot conduct more than a limited Franks review on its own. Possibly there is no realistic means of reconciling Franks with the FISA process. But all three branches of government have an obligation to explore that question thoroughly before we rest with that conclusion." United States v. Daoud, 2014 WL 2696734 (7th Cir. June 16, 2014).
Here are additional details on the criminal case:
The first indictment arose out of an investigation that began in May 2012 when Daoud, an 18-year-old American citizen and resident of Hillside, Illinois, a suburb of Chicago, joined an email conversation with two undercover FBI employees posing as terrorists who had responded to messages that he had posted online. The ensuing investigation, based in part on a series of surveillance warrants, yielded evidence that Daoud planned "violent jihad"-terrorist attacks in the name of Islam-and had discussed his plans with "trusted brothers." He expressed interest in committing such attacks in the United States, utilizing bombmaking instructions that he had read both in Inspire magazine, an organ of Al Qaeda that is published in English, and through internet searches. One of his FBI correspondents put him in touch with an undercover agent (a "cousin") whom the correspondent represented to be a fellow terrorist. After meeting six times with the "cousin," Daoud selected a bar in downtown Chicago to be the target of a bomb that the agent would supply him with. The agent told him the bomb would destroy the building containing the bar, and warned him that it would kill "hundreds" of people. Daoud replied: "that's the point."
On September 14, 2012, Daoud parked a Jeep containing the bomb in front of the bar. In a nearby alley, in the presence of the agent, he tried to detonate the bomb. Nothing happened, of course, because the bomb was a fake. Daoud was immediately arrested. It was while in jail a month later that, according to the second indictment, he tried to solicit someone to murder the undercover agent with whom he had dealt.
The criminal proceedings are ongoing. Jessica Kincaid - 07/21/2014