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Richard Posner Wants You To Learn to Love Secrecy

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As you’ve likely already heard, the 7th Circuit ruled aggressively against Adel Daoud, overturning Judge Sharon Johnson Coleman’s ruling that his lawyers could review his FISA warrant. This was utterly predictable, but unfortunate nevertheless.

Steve Vladeck had a really good post on both Judge Ricard Posner’s overreach and Judge Ilana Rovner’s description of the problem FISA presents for challenging the truthfulness of FISA warrant materials.

Here’s how he describes Posner’s obnoxious assumption of the District Court job to actually determine whether defense review is necessary.

But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information.

[snip]

But far more troubling than these (gratuitous) rhetorical flourishes is the last part of Judge Posner’s opinion, which doesn’t just conclude that disclosure to Daoud’s defense counsel in this case is unnecessary under § 1806(f)—the step the Court of Appeals criticized Judge Coleman for skipping—but then goes on to resolve Daoud’s Franks motion on the merits. Thus, the majority concluded that “our study of the materials convinces us that the investigation did not violate FISA,” even though the district court hadn’t even gotten that far.

In other words, in a case in which the whole question is how judges should decide whether they need adversarial participation in order to properly resolve a FISA-based Franks motion, Judge Posner’s answer is, in effect, “don’t worry about it; we judges can handle this without any help.” With all due respect to one of the brightest and most gifted appellate judges in the country, how does he (or his colleagues) know that? Indeed, I thought one of the most significant revelations from the FISA-related disclosures of the past year is that, in fact, judges won’t always get these issues right without the benefit of adversarial presentation and argument.

What’s especially odd about Posner’s opinion, however, is his own understanding of the process he himself used to determine this warrant was legal.

Remember that at the original review of this case, Posner and his colleagues had an unannounced secret hearing to review the warrant, attended by a goodly chunk of the US Attorney’s office. After that, the Court issued an order requiring even more information from the government.

Asking for additional information is legal. Under FISA a reviewing (District) Judge can consult “such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized.” But the fact that the Circuit had to go back for even more information, after having seen all the materials Coleman reviewed, suggests the question was not as easy as Posner suggests.

And Posner wants us to believe his assumption of the role of the District Judge is a benefit to Daoud. He does so, first, in his bizarre rant about secrecy, when he emphasizes the times when secrecy benefit defendants. Then he goes further when dismissing Daoud’s lawyers objection to the secret hearing.

Their objecting to the classified hearing was ironic. 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.

Only it wasn’t. It was an opportunity for the government to get a second bite at the ex parte apple, which by itself apparently wasn’t even sufficient to address questions about the application.

As Vladeck laid out, Rovner wrote a concurrence in which she acknowledged the failure of FISA to provide defendants with the ability to challenge the case against them.

But that’s not the direction our judiciary is going. On the contrary, it is embracing more and more secret procedures, all in an effort to hide what the government is really doing in its countereterrorism efforts.

Did the Government Invent Terrorist Threats Out of Adel Daoud’s Term Paper?

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I’m just now getting around to listening to the Mulligan hearing in Adel Daoud’s hearing at the 7th Circuit on Monday which the panel held because the hearing held the previous Wednesday had not been taped.

The hearing (as opposed to Judge Richard Posner’s long digression about why they were having the Mulligan) started with Judge Ilana Rovner focusing on whether a defendant caught by FISA could ever take a Franks challenge to a FISA warrant — basically, a claim that the government relied on false information in an affidavit supporting a warrant. Posner, too, seemed focused on this, asking Prosecutor William Ridgway whether a case (this case?) could be sustained even in the face of a Franks challenge. (Ridgway said it could, but of course he would say that, because the Circuit can only sustain a review here if it would be significant enough to exonerate Daoud.)

And all that took place against the background of Posner claiming, at least, that the ex parte hearing last week was held to benefit his client, which suggests (as does the request for more information from the government) that the Circuit may be more skeptical of the warrant than Posner let on last week (or perhaps Posner got more skeptical after the hearing).

Daoud’s attorney, Thomas Durkin, tried to bring it back to the larger issues raising questions in this case, including the fact that Dianne Feinstein had suggested Daoud had been caught using Section 702 of FISA.

 

But ultimately, Posner showed most interest when Durkin talked about Daoud’s mosque school term paper on Osama bin Laden.

Durkin: We do know and we did tell the judge this that this 18 year old kid had to do a term paper for — he went to the mosque school, and he had to do a term paper. He decided to do a term paper on Osama bin Laden. We know he had contacts, therefore, with Inspire magazine and reasons why the NSA may have picked him up. That could be just deliberate First Amendment Activity. Nothing more, nothing less. We don’t know that. We don’t know whether there’s something in that affidavit that says — we’ve tried to rule out all kinds of First Amendment activity and we can’t find anybody. We should be permitted to see that.

Posner: Are you trying to say the government investigated him because of school paper he wrote?

Durkin: I don’t know. It could be.

Posner: No, but that’s your suspicion, right?

Durkin: That is my suspicion.

As I explained before, the investigation into Daoud started on May 10, 2012 in response to an unsolicited referral that claimed Daoud had said he’d use the instructions in Inspire to launch an attack. But neither that claim nor a subsequent claim based on an undercover officer shows the language Daoud used. The one time the FBI quoted Daoud in its summary, the FBI seemed to overstate the tie between Inspire and Daoud’s plans to hurt the US.

Thus, the evidence may well support the claim that the FBI — and whoever referred Daoud in the first place — overstated what Daoud had actually said about Inspire. Which, if that’s what they used to get a FISA warrant (and it appears likely it is), ought to be a good basis to claim they lied to get that FISA warrant.

That may not be enough to sustain Sharon Coleman’s decision Daoud should get a review of the warrant (though I suppose it’s possible the 7th could just decide to throw out the warrant). Plus, even then you might have to prove that everything that came after — including the alleged threats to a FBI agent — was entrapment.

But it seems like the 7th Circuit may be fairly critical of what they saw in that FISA warrant.