What Would Have Been Big News: The Daoud Disclosure Order

By Carrie Cordero
Friday, February 7, 2014, 5:02 PM

As Wells noted last week, there was a significant decision regarding FISA, in the Northern District of Illinois, on January 29th. In the case of United States v. Daoud, Judge Sharon Johnson Coleman ordered the disclosure of FISA application materials to the defendant's security-cleared attorney.  Thus 36 years of contrary district court precedent---which held that such applications need not be disclosed to the defense, when challenged in a subsequent prosecution---came to a screeching halt.In a pre-Snowden world, such a ruling would have been big, big news. (Of course, in a pre-Snowden world, this disclosure may not have been ordered in this particular case.)  But so far the order hasn't gotten the attention it deserves. I thus thought would be useful, both to overview the relevant legal rules, and their application by the district court in Daoud.  Here’s how the most pertinent provision---Section 106 of FISA---works. First, an “aggrieved person,” that is, “a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance” can move to suppress “evidence obtained or derived” from a FISA surveillance “on the grounds that---(1)    The information was unlawfully acquired; or(2)    The surveillance was not made in conformity with an order of authorization or approval[.]” 50 USC § 1801(k) and § 1806(e). (Note: throughout this post, I am only referring to the electronic surveillance provisions of FISA, but there are companion provisions in the physical search section of FISA, as referenced in the Court’s opinion.)Next, as long as "[]the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States[,]” the district court judge “[]shall….review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted[.]” 50 USC § 1806(f).Here’s the important part as it relates to the Daoud case:

“[]In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” [Emphasis added] 50 USC § 1806(f).

So the key question is whether disclosure to the defense in this case was “necessary” for the judge to rule on whether the surveillance (and search) was lawfully authorized and executed. Judge Coleman's opinion leaves some gray area here. Her opinion appears based, in significant part, on the fact that defense counsel in this case possesses a security clearance. The court appears to apply some sort of balancing test: “that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel.” Daoud opinion at p.4.  The court goes on to conclude that disclosure in this case “may be necessary,” and, the Court’s ultimate decision would be “best made” in the context of “adversarial process.” Opinion at p.5.In other words, this court appears to find that: cleared counsel + adversarial process = disclosure, under FISA section 106.As former federal prosecutor David Laufman explained in a piece highlighting the order, it is not yet clear whether this decision will have a lasting impact on future prosecutions, intelligence collection and/or information sharing. But it could. For my part, I can think of both positive and negative effects that a trend towards disclosure might cause---but I will leave those for another day. In the meantime, Daoud is a case to watch, along with any future cases in which the government seeks to protect FISA applications from disclosure to the defense in other courtrooms around the country.