United States v. Daoud

Citation755 F.3d 479
Decision Date16 June 2014
Docket NumberNo. 14–1284.,14–1284.
PartiesUNITED STATES of America, Plaintiff–Appellant, v. Adel DAOUD, Defendant–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

755 F.3d 479

UNITED STATES of America, Plaintiff–Appellant,
v.
Adel DAOUD, Defendant–Appellee.

No. 14–1284.

United States Court of Appeals,
Seventh Circuit.

Argued June 4 & June 9, 2014.*
Decided June 16, 2014.


[755 F.3d 480]


William E. Ridgway, Mark E. Schneider, Office of the United States Attorney, Chicago, IL, Jeffrey Michael Smith, Department of Justice, Washington, DC, for Plaintiff–Appellant.

Thomas Anthony Durkin, Durkin & Roberts, Chicago, IL, John D. Cline, Law Office of John D. Cline, San Francisco, CA, for Defendant–Appellee.


Matthew R. Segal, ACLU of Massachusetts, Boston, MA, for Amicus Curiae.

Before POSNER, KANNE, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

The defendant, Adel Daoud, was indicted first in September 2012 for attempting to use a weapon of mass destruction and attempting to damage and destroy a building by means of an explosive, in violation of 18 U.S.C. §§ 2332a(a)(2)(D) and 844(i), and next in August 2013 for having, in addition, later solicited 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.

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 government notified the defendant, pursuant to 50 U.S.C. §§ 1806(c) and 1825(d)—sections of the Foreign Intelligence Surveillance Act (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. Counsel hoped to show that the “evidence obtained or derived from such electronic surveillance” had been based on “information [that] was unlawfully acquired” or that “the surveillance was not made in conformity

[755 F.3d 481]

with an order of authorization or approval,” 50 U.S.C. § 1806(e), both being grounds for suppression.

The government filed two responses: 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.

The district judge studied the classified materials to determine whether they should be shown to the defendant's lawyers, who have security clearances at the level at which these materials are classified. The judge noted that counsel was seeking “disclosure of classified documents that are ordinarily not subject to discovery,” that “no court has ever allowed disclosure of FISA materials to the defense,” and that a court may order such disclosure only where “necessary” for “an accurate determination of the legality of the surveillance,” 50 U.S.C. § 1806(f), or of the “physical search” if that was how the FISA materials were obtained. § 1825(g). Nevertheless, remarking that “the adversarial process is integral to safeguarding the rights of all citizens,” that the Sixth Amendment presupposes “the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing,” and that “the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances,” the judge ruled that “the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel.” And so she ordered the materials sought by defense counsel turned over to them. The order, though interlocutory, was appealable immediately, and the government appealed. 50 U.S.C. § 1806(h); 18 U.S.C.App. III § 7.

She acknowledged that the Attorney General's submission—stating that disclosure of the classified material, or an adversarial hearing with respect to it, “would harm national security”—had “trigger[ed] an in camera, ex parte procedure [in the district court] to determine whether the surveillance of the aggrieved person [Daoud] was lawfully authorized and conducted.” FISA is explicit about this. It provides that “if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, [the court 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. 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.50 U.S.C. § 1806(f) (emphasis added).

So first the district judge must, in a non-public (“ in camera ”), nonadversarial (“ ex parte ”) proceeding, attempt to determine whether the surveillance was proper. If in attempting to determine this the judge discovers that disclosure to the defendant of portions of the FISA materials is “necessary,” the judge may order disclosure, provided there is adequate security. The defendant's brief tries to delete the statutory requirement of sequential ex parte in camera district court analysis by

[755 F.3d 482]

a cropped quotation from the statute: “the court must review the FISA application, order, and related materials ex parte and in camera, unless ‘disclosure [to the defendant] is necessary to make an accurate determination of the legality of the surveillance.’ ” The defendant's misreading of the statute would permit the district judge to avoid conducting an ex parte review if the defendant's lawyers believed disclosure necessary, since if the judge does not conduct the ex parte review she will have no basis for doubting the lawyers' claim of necessity. The statute requires the judge to review the FISA materials ex parte in camera in every case, and on the basis of that review decide whether any of those materials must be disclosed to defense counsel. The judge did not do that. She did not find that disclosure was necessary, only that it “may be necessary.” Although she read the FISA materials and concluded that she was “capable of making such a determination [an ‘accurate’ determination, as is apparent from a previous sentence in her order] of the legality of the surveillance,” she refused to make the determination, which if she was right in thinking she could make an accurate determination would have obviated the necessity for—and therefore the lawfulness of—disclosure of the classified materials to defense counsel.

The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact. That is an incomplete description of the American judicial system in general and the federal judicial system in particular. There are ex parte or in camera hearings in the federal courts as well as hearings that are neither or both. And there are federal judicial proceedings that though entirely public are nonadversarial, either partly or entirely. For example, a federal district judge presiding over a class action is required to determine the fairness of a settlement agreed to by the parties even if no member of the class objects to it. Eubank v. Pella Corp., 753 F.3d 718, 720, 2014 WL 2444388, at *2 (7th Cir. June 2, 2014). And when in a criminal case the prosecutor and the defendant agree on the sentence to recommend, the judge must make an independent determination whether the sentence is appropriate. If, though it is within the range fixed by Congress, he thinks the agreed-upon sentence too harsh or too lenient, he is empowered (indeed required) to reject the agreed-upon sentence and impose a different one within the statutory range. United States v. Siegel, 753 F.3d 705, 710, 2014 WL 2210762, at *5 (7th Cir. May 29, 2014). Another familiar example of nonadversarial federal procedure involves the “ Anders brief”—a brief in which a criminal defendant's lawyer states that the appeal is frivolous and...

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23 cases
  • United States v. Al-Safoo
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 4 Mayo 2021
    ...camera, ex parte review process under FISA satisfies due process under the United States Constitution. See, e.g., United States v. Daoud, 755 F.3d 479, 482-83 (7th Cir. 2014); United States v. El-Mezain, 664 F.3d 467, 567 (5th Cir. 2011); United States v. Abu-Jihaad, 630 F.3d 102, 117 (2d C......
  • United States v. Turner, 15–1175
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 9 Septiembre 2016
    ...investigation did not violate FISA. We shall issue a separate, classified opinion explaining this conclusion. See United States v. Daoud , 755 F.3d 479, 485 (7th Cir. 2014), supplemented , 761 F.3d 678 (7th Cir. 2014).I. BACKGROUND We begin with a brief synopsis of the relevant legal framew......
  • United States v. Mohammad, Case No. 3:15-cr-358
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 11 Septiembre 2018
    ...proceedings. These types of proceedings, however, are not foreign to the American criminal justice system. See United States v. Daoud , 755 F.3d 479, 482 (7th Cir. 2014) ("The judge appears to have believed that adversary procedure is always essential to resolve contested issues of fact. Th......
  • United States v. Muhtorov
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 8 Diciembre 2021
    ...FISA application [or Section 702 materials] that resulted in court-authorized surveillance of the defendant." See United States v. Daoud, 755 F.3d 479, 485-86 (7th Cir. 2014) (Rovner, J., concurring). And it may be that "[a]s a practical matter, the secrecy shrouding the FISA process render......
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1 books & journal articles
  • Introducing Independence to the Foreign Intelligence Surveillance Court.
    • United States
    • Yale Law Journal Vol. 131 No. 2, November 2021
    • 1 Noviembre 2021
    ...(statement of James G. Carr, J., U.S. District Court for the Northern District of Ohio). (80.) 50 U.S.C. [section] 1806(f) (2018). (81.) 755 F.3d 479, 404 (7th Cir. 2014) (Rovner, J., (82.) Id. (83.) Id. at 486. (84.) Id. at 490. (85.) Id. at 486. (86.) KRIS & WILSON, supra note 12, [se......

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