United States v. Adel Daoud
755 F.3d 479
7th Cir.2014Background
- Daoud was indicted in 2012 for attempting to use a weapon of mass destruction and attempting to damage a building by explosives under 18 U.S.C. §§ 2332a(a)(2)(D) and 844.
- A second indictment in 2013 added charges of soliciting murder-for-hire, a crime of violence, and witness tampering under 18 U.S.C. §§ 373(a), 1958(a), and 1512(a)(1)(A).
- An FBI sting began in May 2012 after Daoud joined an online discussion with undercover agents posing as terrorists; surveillance supported plans for violent jihad in the U.S.
- Daoud met with the undercover agent multiple times, selected a Chicago bar as a target, and parked a Jeep with a supposed bomb in front of the bar in September 2012; the bomb was fake.
- The government notified Daoud that it would present classified FISA-derived evidence; Daoud sought access to the supporting FISA materials to challenge legality or admissibility.
- The district court ordered disclosure of some classified materials to defense counsel with security clearances; the government appealed, and the court of appeals reversed, holding disclosure was not necessary for an accurate legality determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disclosure of classified FISA materials was necessary | Daoud argues disclosure is necessary for an accurate Franks-like review. | Daoud contends the district court failed to conduct required ex parte in camera review and erred by ordering disclosure. | Disclosures not necessary; order reversed; no remand required. |
| Franks applicability to FISA-based evidence | Daoud argued Franks should apply to challenge FISA material veracity. | Meets difficulty of Franks where defendant lacks access to the FISA application. | Franks is not practically workable in the FISA context; recognized limits and need for alternative safeguards. |
| Adequacy of district court's in camera review under FISA | Defense contends in camera review was insufficient to evaluate legality of surveillance. | Daoud insists the court could not assess legality without disclosure. | Court held ex parte in camera review could be appropriate but was not needed to disclose; remand not required. |
| Impact of national security considerations on defense rights | National security interests justify secrecy; defense access is limited. | Rights to adversarial testing must be balanced against secrecy; disclosure is sometimes necessary for accuracy. | National security interests justify withholding; no remand or further disclosure required. |
Key Cases Cited
- Franks v. Delaware, 438 F.3d 154 (U.S. 1978) (impeachment of warrant affidavits for false statements and omissions)
- United States v. Ning Wen, 477 F.3d 896 (7th Cir. 2007) (FISA order as a Fourth Amendment warrant)
- Mubayyid, 521 F. Supp. 2d 125 (D. Mass. 2007) (discusses disclosure balance in FISA contexts)
- Abu-Jihaad, 630 F.3d 102 (2d Cir. 2010) (Franks applicability in FISA and limitations)
- Belfield, 692 F.2d 141 (D.C. Cir. 1982) (balance of secrecy and discovery in FISA context)
- United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) (Franks-like concerns in FISA contexts)