The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

By Jason Meisner, Chicago Tribune

CHICAGO — A federal appeals court in Chicago held a highly unusual closed-door session with government officials Wednesday after debating in public whether attorneys for a local terrorism suspect should be allowed to view confidential surveillance documents filed in the case.

In 30 minutes of arguments that were open to the public, Assistant U.S. Attorney William Ridgway urged the 7th U.S. Circuit Court of Appeals to reverse a trial court’s ruling granting lawyers for Adel Daoud unprecedented access to records of a secret intelligence-court, saying it could harm national security.

As the arguments concluded, Judge Richard Posner announced the public portion of the proceedings had concluded and ordered the stately courtroom cleared so the three-judge panel could hold a “secret hearing.” Daoud’s attorney, Thomas Anthony Durkin, rose to object, but Posner did not acknowledge him. Deputy U.S. marshals then ordered everyone out — including Durkin, his co-counsel and reporters.

Only those with the proper security clearance — including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials — were allowed back in the courtroom before it was locked for the secret session.

Durkin, a veteran Chicago lawyer, said outside the courtroom he was not notified in advance that there would be a secret hearing and called the move unprecedented.

“Not only do I not get to be there, but I didn’t even get to object,” Durkin said. “I had to object over the fact that I couldn’t even make an objection.”

The secret hearing lasted about 30 minutes before Posner and Judges Michael Kanne and Ilana Diamond Rovner.

It was the latest illustration of the lightning rod Daoud’s case has become in the fallout over controversial government spying programs revealed by former National Security Agency contractor Edward Snowden.

Joel Bertocchi, a veteran appellate attorney in Chicago, told the Tribune in a telephone interview that holding a hearing where only attorneys for one side are allowed to be present is rare, especially for the appeals court.

“I’ve never heard of it being done in the 7th Circuit before,” said Bertocchi, noting the appeals court warns litigants that even records that had been sealed in district court will be made public unless the judges can be convinced otherwise.

Bertocchi said the Daoud case was unusual because the appellate court was being asked to look at a district court ruling in which parts of the record had been seen by only one side.

“If the judges are going to be asking questions about the contents of those materials,” it might make sense to do so behind closed doors, he said.

Daoud, now 20, is facing trial on charges he plotted to set off a bomb outside a Loop bar in 2012. Authorities have said he came under FBI scrutiny after posting messages online about killing Americans.

Earlier this year, U.S. District Judge Sharon Johnson Coleman took the unprecedented action of ordering prosecutors to give Doud’s lawyers access to confidential surveillance materials used in the government investigation, including search warrant applications that had been presented to the secretive Foreign Intelligence Surveillance Act court. It was the first such ruling in the 36-year history of FISA.

Daoud’s attorneys have said they need access to the materials to decide whether to challenge the search warrants on the grounds they violated the constitutional protection against unlawful searches and seizures.

In his public argument Wednesday before the appeals panel, John Cline , another Daoud attorney, said trying to mount an attack on records one can’t view is like “playing pin the tail on the donkey.”

Photo: Scott* via Flickr

Want more surveillance news? Sign up for our daily email newsletter!


Start your day with National Memo Newsletter

Know first.

The opinions that matter. Delivered to your inbox every morning

Sen. Bernie Sanders, left, and President Joe Biden during 2020 presidential debate

I look at September 2019 as a month where I missed something. We began with a trip to New York to do Seth Meyers’s and Dr. Oz’s shows. Why would we go on The Dr. Oz Show? For the same reason we had gone on Joe Rogan’s podcast in August: We could reach a vast audience that wasn’t paying attention to the standard political media. On Dr. Oz, Bernie could talk about Medicare for All and his own physical fitness. While at the time we believed Bernie was uncommonly healthy for his age, he was still 78. Questions would be raised related to his age, and we needed to begin building up the case that he was completely healthy and fit. It turned out to be a spectacular interview, ending with the two of them playing basketball on a makeshift court in the studio. Bernie appeared to be on top of the world.

Yet in retrospect, I should have seen Bernie growing more fatigued. After New York, with the school year starting, we did a series of rallies at colleges and universities in Iowa; this was the kickoff of our campus organizing program in the state. We would then fly to Colorado for a large rally in Denver before heading to Boulder to prep for the third debate, to take place in Houston on September 12. In Iowa, Bernie’s voice was a little hoarse. After the rally in Denver, he had completely blown it out. He sounded terrible.

Keep reading... Show less

Rep. James Clyburn

When I interviewed House Majority Whip James Clyburn in 2014 about his memoir Blessed Experiences: Genuinely Southern, Proudly Black, the South Carolina Democrat was confident in America’s ability to find its way, no matter how extreme the political swings might appear at any given time.

“The country from its inception is like the pendulum on a clock,” the congressman told me. “It goes back and forward. It tops out to the right and starts back to the left — it tops out to the left and starts back to the right.” And remember, he said, it “spends twice as much time in the center.”

Keep reading... Show less
{{ }}