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If One Judge Gives FISA Review, and Another Judge Gives FISA Review, All Hell Will Break Loose!

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There have been a couple of developments on the government’s effort to continue its practice of shielding its dragnet from adversarial legal review behind the screen of FISA.

First, the 7th Circuit appears to want to punt on the question of whether or not Adel Daoud’s lawyer should be able to review the FISA materials used against him.

It claims (incorrectly, I suspect) it may not have the authority to review Sharon Coleman’s decision to give Daoud review.

A preliminary review of the short record indicates that the order appealed from may not be an appealable order.

Section 3731 of Title 18, United States Code, permits the United States to appeal certain rulings in a criminal case. The district court’s order of January 29, 2014, compelling disclosure of Foreign Intelligence Surveillance Act application materials to defense counsel having the necessary clearance, does not appear to fit within the statute’s list of orders that the government can appeal.

Meanwhile, in Oregon, the government has submitted its response to Mohamed Osman Mohamud’s discovery request for details of why the government didn’t tell him it had used FISA Section 702 to identify him before his trial. (h/t to Mike Scarcella on both documents)

I’ll come back to the substance of that response, as I think it shows the strategy the government will attempt to use to dig out of its discovery obligation hole in Section 702 cases.

But I wanted to point out footnote 19:

A district court order requiring the disclosure of FISA materials is a final order for purposes of appeal. See 50 U.S.C. § 1806(h). In the unlikely event that the Court concludes that disclosure of the classified FAA-related information that defendant requests may be required, given the significant national security consequences that would result from such disclosure, the government would expect to pursue an appeal. Accordingly, the government respectfully requests that the Court indicate its intent to do so before issuing any order, or that any such order be issued in such a manner that the United States has sufficient notice to file an appeal prior to any actual disclosure.

The government is pointing to what will surely be the core of the debate in the 7th Circuit, whether 50 USC 1806(h)‘s mention of Appeals Court review of disclosure decisions trumps  criminal code.

But it’s also revealing something else: with its suggestion that a judge might rule in favor of discovery and start handing over FISA warrant applications willy nilly, and therefore it should get warning before any judge rules against it, it betrays a concern that if judges actual so rule (even assuming they can appeal), it will harm their case.

The government seems to be admitting that one of the only things preventing judges from granting such review is the long history DOJ can point to when no judge has granted such review (which is a line they always use when defendants try to get such review).

It’s the taboo, the unquestioning deference courts have granted every time the Attorney General has claimed such review would harm national security without actually explaining why, that prevents defendants from getting review.

Not any real risk to national security.

And DOJ seems anxious to maintain the power of that taboo at all costs.

One more bit of ironic arrogance in this footnote: the government is suggesting it should get advance review on a ruling about the consequences they might suffer for failing to give a defendant advance review.

Update: I just noticed that Mohamud’s lawyer gave notice of the Daoud ruling and indicated that like Daoud’s lawyer, he also has TS/SCI clearance.

Update: Whoo boy. DOJ is panicking, I think. They’ve suggested that if either of two statutes they cite don’t give the 7th Circuit jurisdiction they should issue a writ of mandamus.

Finally, if the two statutory bases for appellate jurisd iction set forth above were not available, this Court would still have jurisdiction to issue a writ of mandamus to revers e the district court’s order pursuant to 28 U.S.C. § 1651.

Least Surprising Appeal Ever: Back Door Search Edition

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In thoroughly unsurprising news, DOJ has informed the 7th Circuit it will appeal Judge Sharon Coleman’s decision giving attorneys for Adel Daoud an opportunity to review the FISA materials used to identify him.

While we don’t know what exotic mix of FISA claims the Executive used to identify Daoud and decide to sic a series of undercover operatives on him, we do know Dianne Feinstein raised his case during the FISA Amendments Act debate in 2012; the context suggests NSA may have found Daoud using a back door search.

While DOJ will say they’re objecting to Coleman’s decision because no defense attorney has ever reviewed a FISA warrant before so why start now, the other underlying message they send with this appeal is that they lack confidence that their counterterrorism tools would stand up to adversarial review.

The next time someone says this is all legal, you might remind them that DOJ refuses to test that claim in the traditional venue for doing so, an Article III setting.

Adel Daoud Wins Review of FISA Application

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Screen Shot 2014-01-29 at 4.20.11 PMAs I’ve written before, Adel Daoud is a 20-year old American citizen from the Chicago suburbs busted in 2012 for attempting to bomb a nighclub. Since Dianne Feinstein mentioned Daoud’s case during the 2012 FAA reauthorization fight, his lawyers have been trying to figure out how the government obtained all the evidence against him. There are hints they may have used a back door search to collect emails dating to 2011 (before the FBI allegedly started tracking him). There are reasons to think the government may have collected upstream collection on him. Either would be particularly interesting, as this surveillance dates to the same weeks when John Bates wrote an opinion addressing both practices.

In addition, the revelations that NSA collects YouTube comments is of particular interest, as Daoud’s YouTube comments serve as part of the evidence against him. (Remember, they could also collect YouTube comments in bulk, and then conduct backdoor searches of that material.)

The judge in his case has just done what no judge has ever done before — grant his lawyers a review of the FISA application against him. As Charlie Savage first noted, Judge Sharon Coleman granted the defense the ability to review the FISA Application against Daoud.

While this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds that the disclosure may be necessary. This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment. Anders v. California, 386 U.S. 738, 743 (1967). Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. “The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 (1984).

In sum, this Court grants disclosure to cleared defense counsel of the FISA application materials and such disclosure will be made under an appropriate protective order.

Her mention of the necessity for adversarial review suggests the suspicions about the basis for FBI’s interest in Daoud may be well-grounded.

We’ll never learn what’s in that application, but we may get a better sense of whether one federal judge thinks it’s legal to use certain kinds of collection as a basis for a FISA warrant.

Update: Spencer Ackerman alerted me that I was cited in the response motion that won this review (see page 3). Yeah me!

Parallel Constructing Daoud’s Emails

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Judge Sharon Johnson Coleman held a hearing Friday in the Adel Daoud case on whether the government needs to reveal how it collected certain communications from Daoud. That would be notable in any case, given that Daoud is one of the defendants Dianne Feinstein invoked during debate of the FISA Amendments Act reauthorization who has not, however, been noticed that FAA was used to bust him.

But it gets more interesting given something the prosecutor in the case, William Ridgway, said in Friday’s hearing.

Another Daoud attorney, Josh Herman, said some documents turned over by prosecutors, including emails dated 2011, seemed to support defense attorneys’ claim that warrantless surveillance was used on Daoud.

“This is not tin-foil hat paranoia,” Herman said.

But prosecutor William Ridgway said that the 2011 emails may have been found on Daoud’s computer that authorities seized with a warrant in 2012.

If the government did target Daoud only after sifting through communications data without a warrant, the defense wants to challenge all subsequent evidence on the grounds it was gathered through a violation of Daoud’s constitutional rights against unreasonable searches.

The criminal complaint describes an email account Daoud used to “obtain and distribute material … relating to violent jihad” going back to October 2011. That was 7 months before the FBI’s online undercover officers first contacted Daoud — purportedly in response to things he had posted publicly — to set up their sting.

So did the FBI’s investigation of Daoud really start in May 2012, as the complaint sort of implies. In which case, why mention the earlier emails? Or did they identify Daoud via emails collected back in 2011? What legal authority did they use to access those emails? And if they did, what explains the 7 month delay in their sting?

In discussions of where those emails came from at the hearing, Ridgway was non-committal, suggesting they “may” have come from a search on his computer seized with a warrant, but not claiming they did. (The government noticed both FISA wiretap and physical search information, the latter of which often means searches of stored communications, which is presumably another way they could have obtained the emails, if Daoud didn’t delete them, but he appears to have been fairly attentive to hiding his digital tracks by 2012.)

The timing of that claimed start date — October 2011 — is particularly intriguing. Not only is that around the time Daoud turned 18. But it also dates to John Bates’ October 3, 2011 approval (for the first time) of NSA (and CIA)’s use of back door searches on previously collected data and minimization procedures that addressed his concerns about the illegal upstream collection.

I have, in the past, suggested they may have identified Daoud (or perhaps found these emails) via a back door search. While there’s no direct evidence of what collection may have included Daoud, it’s possible they collect URL searches or hits on certain websites from which he collected extremist material.

But it’s also conceivable they identified Daoud via an upstream content search (that is, email collected at a telecom switch via a search on some of the content he had in his emails). For example, perhaps NSA first picked up Daoud’s contacts based on him sending Anwar al-Awlaki materials on October 9 and 18, 2011. It’s conceivable NSA tracks online jihad membership notices, like the one Daoud received on February 6, 2012. It’s likely they track links to sites making Inspire available, such as the URL Daoud sent himself on May 9, 2012 (the initial contacts with online undercover FBI officers were on May 14 and May 17, 2012). If so, any of those emails that transited certain collection points might be sucked up as part of NSA’s use of Section 702 to search on content.

Remember though: NSA has claimed they won’t use these authorities in tandem. They told John Bates they would not conduct back door searches on upstream collection. If they got any of this via upstream collection, they presumably should not be able to go back and search for Daoud (though who knows how NSA finesses this issue via tech claims).

This is why Ridgway’s comment is so striking. Ridgway seemed to suggest there were two possible ways (three, with collection of stored emails) the government could have obtained Daoud’s earlier emails.

Does he know for a fact there are two different ways to get these emails, because the government used both? Does he know there are two ways to get them because the government is using parallel construction to hide one of their more exotic uses of FISA collection from Judge Coleman?

Either of these practices — accessing Daoud’s communications at a time when he had done nothing beyond engage in potentially hateful speech via back door search, or obtaining his emails via upstream collection — would present a use of FISA that, while approved by FISA Judge John Bates (assuming it started after October 3, 2011), has not been known to be scrutinized by an Article III judge presiding in a criminal case. So there’d be a big incentive for the government to use parallel construction to hide the underlying collection.

Of course, it’s most likely — given Judges’ unwillingness to be the first to challenge the government’s ability to keep all FISA materials secret — that we’ll never know, that Daoud will be denied any more information about how the government first identified him as a terrorism lead.

Was Adel Daoud Targeted Off of a Back Door Search of Traditional FISA Collection?

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Daoud Adel is a 20-year old US citizen from suburban Chicago who was charged last year in an FBI sting in which he allegedly tried to set off a car bomb outside a night club. Last year, during the debate on FISA Amendments Act reauthorization, Dianne Feinstein named his case directly, suggesting he had been busted using the legislation before the Senate. His legal team first demanded the FAA material she suggested existed back in May. And in September, they requested discovery for materials relating to FAA.

The government, however, strongly suggests none of the communications used to charge him were collected under FAA. It even suggests he misunderstands the meaning of DiFi’s comment.

Any discovery based on the FAA is unwarranted here because the FAA is simply not at issue in this case. As the Government explained in a previous filing, it “does not intend to use any such evidence obtained or derived from FAA-authorized surveillance in the course of this prosecution.” (DE 49, at 2).

[snip]

The defendant’s claim that the Government should disclose “the nature of the FAA surveillance in this case even, for instance[,] Defendant’s communications themselves were not intercepted” is perplexing. (DE 52, at 15 n.11). If Daoud’s communications were not intercepted, or his facilities not targeted, he would not be aggrieved and have no basis to challenge the collection. The Government sees no legal relevance to his broad discovery request.

Moreover, the defendant has also made multiple claims, in this motion and others, based on his interpretation of a single public remark. While the Government appreciates the defendant’s position in litigating FISA-related matters, it offers that the defendant may misunderstand this public remark, which is not a revelation that has any legal implication.

[snip]

As the Government has explained, this case singularly involves “traditional” FISA surveillance. [my emphasis]

Soapbox Orator’s comments in response to one of my posts on back door searches led me to examine the government’s response closely and I now suspect Daoud may have been identified using a back door search on traditional FISA collection.

Much of this debate centers on comments DiFi made on December 27, 2012, which seemed to suggest the 8 cases she named involved FAA.  But those comments were in response to comments Ron Wyden had just made. In that speech Wyden described (among other problems with FAA) back door searches.

The fact is, once the government has this pile of communications, which contains an unknown but potentially very large number of Americans’ phone calls and e-mails, there are surprisingly few rules about what can be done with it.

For example, there is nothing in the law that prevents government officials from going to that pile of communications and deliberately searching for the phone calls or e-mails of a specific American, even if they do not have any actual evidence that the American is involved in some kind of wrongdoing, some kind of nefarious activity.

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Dianne Feinstein Didn’t Mean to Mislead the Senate into Extending FAA, Promise!

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Charlie Savage has a story describing how, after Solicitor General Don Verrilli got caught lying to SCOTUS about whether defendants busted using FISA Amendments Act would have the opportunity to challenge it in court, DOJ has now decided to adopt a different standard for disclosure of such information.

National security lawyers and a policy advisory committee of senior United States attorneys focused on operational worries: Disclosure risked alerting foreign targets that their communications were being monitored, so intelligence agencies might become reluctant to share information with law enforcement officials that could become a problem in a later trial.

But Mr. Verrilli argued that withholding disclosure from defendants could not be justified legally, officials said. Lawyers with several agencies — including the Federal Bureau of Investigation, the N.S.A. and the office of the director of national intelligence — concurred, officials said, and the division changed the practice going forward.

I’ll return to the import of this debate later.

As part of the story, Savage describes why Adel Daoud, who had been named by Dianne Feinstein last year during the FAA reauthorization debate, won’t get access to any wiretapping information, at least not from her. He links to court documents in which the Senate’s lawyer, Morgan Frankel, claims they don’t have to turn over anything under Speech and Debate, but that in any case, DiFi never meant to suggest FAA had identified the terrorists whose cases she invoked to scare the Senate into reauthorizing FAA.

Here’s what she said (the underlined comments were cited by Frankel):

There is a view by some that this country no longer needs to fear attack. I don’t share that view, and I have asked the intelligence committee staff to compile arrests that have been made in the last 4 years in America that have been made between 2009 and 2012. There are 100 arrests that have been made between 2009 and 2012. There have been 16 individuals arrested just this year alone. Let me quickly review some of these plots. Some of these may arrests [sic] come about as a result of this program. Again, if Members want to see the specific cases where FISA Amendments Act authorities were used, they can go and look at the classified background of these cases.

[lists 9 of the 16 arrests, including Daoud’s]

So I believe the FISA Amendments Act is important and these cases show the program has worked. As the years go on, I believe good intelligence is the most important way to prevent future attacks.

Information gained through programs such as this one — and through other sources as well — is able to be used to prevent future attacks. So, in the past 4 years, there have been 100 arrests to prevent something from happening in the United States, some of these plots have been thwarted because of this program.

And here’s how the Senate Legal Counsel Morgan Frankel dismissed these claims.

Notwithstanding that she was speaking in support of reauthorization of Title VII of the Foreign Intelligence Surveillance Act, Senator Feinstein did not state, and she did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated,

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