After Bragging About Using Surveillance Law To Catch Terrorists, Government Balks At Proving It In Court

Monday, June 24, 2013

Even as the Obama administration continues its aggressive defense of the PRISM domestic spying program, with defense and intelligence officials claiming that it foiled as many as 50 terror plots, the Justice Department continues to play coy, as though PRISM did not exist.

This disconnect likely arises from the fact that government surveillance often turns out to be a two-edged sword when prosecutors bring criminal charges against alleged wrongdoers. Implementing the constitutional right of “due process under law,” state and federal laws require prosecutors to share all relevant information with defendants, which their attorneys use to identify exculpatory facts and witnesses and develop legal defenses.

In the case of teenage terror defendant Adel Daoud, attorneys alleged in papers filed last week in federal court that the government has not lived up to its obligations. Daoud, an American citizen, was arrested and charged in September 2012 with plotting to blow up a downtown Chicago bar.

Three months later, during a debate on the FISA Amendments Act (FAA), which the Obama administration claims as the legal basis of its PRISM domestic spying program, a key Senator claimed that the FAA had helped investigators catch Daoud. Specifically, on December 27, 2012, Sen. Dianne Feinstein (D.-California), chairwoman of the Senate Intelligence Committee, stated that the FAA had helped thwart “a plot to bomb a downtown Chicago bar” that fall.

If that is true, the Federal Rules of Criminal Procedure would require the government to share the results of the surveillance that led investigators to Daoud, yet prosecutors refuse even to confirm or deny the substance of Feinstein’s comments. Daoud’s attorney, former federal prosecutor Thomas A. Durkin, argues that the government manipulates “a Global War on Terror playbook” to its advantage and then refuses to disclose it.

“Whenever it is good for the government to brag about its success, it speaks loudly and publicly. When a criminal defendant’s constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of State Secrets,” wrote Durkin in a court filing demanding the government confirm or deny the use of the surveillance.

“Whether the government relied on FAA surveillance when it obtained its FISA order is a crucial element of giving adequate notice to criminal defendants. The government should be compelled to provide a simple ‘yes’ or ‘no’ answer to the question of whether its evidence was obtained or derived from electronic surveillance conducted under the FAA,” the motion explains.

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