A representative of a criminal defendant has for the first time been granted permission to view the origins evidence gathered against him under the Foreign Intelligence Surveillance Act, one of the wellsprings of authority for terrorism surveillance.



Judge Sharon Coleman, a federal district judge in Illinois, issued an order on Wednesday permitting a lawyer for Adel Daoud, who is accused of attempting to detonate a car bomb near a Chicago bar, to learn the origins of the information the FBI or other US authorities collected about him under an order from a secret court that permits surveillance on terrorists or “agents of a foreign power”.



Never in the 36-year history of the Foreign Intelligence Surveillance Act (Fisa) has anyone but the government and a judge seen the basis for a Fisa application or material derived from one.



“While this court is mindful of the fact that no court has ever allowed the disclosure of Fisa materials to the defense, in this case, the court finds that the disclosure may be necessary,” Coleman wrote, in an order first reported by New York Times journalist Charlie Savage on Twitter.

“This finding is not made lightly, and follows a thorough and careful review of the Fisa application and related materials. The court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding.”

Fisa surveillance is supposed to occur for intelligence purposes – a “significant purpose” must be intelligence gathering – rather than criminal prosecutions. The standard for obtaining Fisa warrants is lower than the “probable cause” guaranteed under the fourth amendment, raising concerns that the use of Fisa materials in criminal cases, as well as information derived from them, might circumvent the standard.

The Justice Department, in the wake of the Edward Snowden revelations, has begun notifying criminal defendants that Fisa surveillance material may be used against them at trial. While terrorism attorneys have long suspected that was the case, the public acknowledgement was another break from tradition.

Thomas Durkin, Daoud’s attorney, hailed Coleman’s order as a legal milestone.

“This decision is historic, courageous and very meaningful in assuring the preservation of the integrity of the adversarial process in federal terrorism related criminal prosecutions,” Durkin said.

Durkin was formerly an attorney for Guantánamo detainee and accused 9/11 co-conspirator Ramzi bin al-Shibh during which time he held a security clearance.

Coleman wrote that once she verifies Durkin’s security clearance remains valid, he will have a chance to review the surveillance material.

Her order came as another criminal defendant challenged the legality of evidence against him that was gathered under Fisa surveillance.

Jamshid Muhtorov, a native of Uzbekistan who came to the United States as a political refugee, was the first defendant to be notified by the Justice Department that evidence against him came from warrantless surveillance.

Muhtorov, who is accused of supporting a designated terrorist organization based in his home country, filed a motion in Colorado calling on the judge to suppress the evidence on the basis that the surveillance violated the fourth amendment.

A previous constitutional challenge to the law, brought by lawyers and journalists, was set aside by the supreme court last year on the grounds that the group could not prove the government would monitor their communications specifically and so did not have standing in the case. At the end of his opinion for the 5-4 majority, justice Samuel Alito wrote that there was a natural path to the high court for a future case that would begin with a government notification to a criminal defendant of warrantless surveillance.

Muhtorov was joined in his motion Wednesday by the federal public defender’s office, the American Civil Liberties Union, and the ACLU of Colorado.



“We’ve learned over the last few months that the NSA has implemented the law in the broadest possible way, and that the rules that supposedly protect the privacy of innocent people are weak and riddled with exceptions. Surveillance conducted under this statute is unconstitutional, and the fruits of this surveillance must be suppressed,” ACLU deputy legal director Jameel Jaffer said about Muhtorov’s motions in a statement.

It is unclear if the judge presiding over the case of Muhtorov, who is accused of aiding the Islamic Jihad Union, will claim Coleman’s order as a controlling precedent. Coleman has yet to rule on suppressing the evidence in Daoud’s case, but permitting an defense attorney to review Fisa-derived evidence is likely to help an argument for suppression.

The new notifications about the evidentiary use of surveillance conducted without individual warrants may spark a constitutional challenge. Previous supreme court cases related to the subject have foundered after defendants could not prove the Justice Department had used such evidence against them.

The criminal complaint against Daoud, 18 years old at the time of his 2012 arrest, refers to his use of an email account used around October 2011 “to obtain and distribute material, some of which he purported to author, relating to violent jihad and the killing of Americans”, as well as to encourage others to join him.

It is unclear how FBI agents learned of the email account, but it appears from the complaint to have prompted undercover agents to contact Daoud posing as jihadists, leading to one providing him with an “inert” bomb in a Jeep Cherokee, then arresting Daoud after he attempted to detonate it.

In November, Durkin filed a motion to review and challenge the surveillance information that might have contributed to his client’s arrest, and raised the possibility that bulk surveillance of the sort disclosed by Snowden might have played a role.

“Such disclosure is fundamentally important because it may very well reveal how the FBI initially focused on defendant – a critical fact that has been withheld,” Durkin wrote in the filing.

“The origins of this investigation, whether through Fisa, the FAA [Fisa Amendments Act], bulk internet metadata collection, pen register/trap & trace authorization, warrantless wiretap, a ‘back door’ search on traditional Fisa collection, or some other unknown surveillance program, is essential for the court to accurately determine the legality of the surveillance.”

Durkin cited the work of journalist Marcy Wheeler, who has asked if Daoud may have come to the FBI’s attention as the result of an authority that permits the NSA to query its databases of foreign-targeted internet communications for the identifying information of Americans dubbed the “backdoor search provision” by senator Ron Wyden and revealed by the Guardian in August thanks to leaks from Snowden.

Daoud’s case also played an inadvertent role in prompting the Justice Department to begin notifying defendants that information came from surveillance collected in bulk under a 2008 expansion of Fisa known as the Fisa Amendments Act.

During a 2012 Senate debate on renewing the Fisa Amendments Act, advocate Dianne Feinstein, the chairwoman of the Senate intelligence committee, cited criminal arrests that the expanded surveillance powers contributed to, including “a plot to bomb a downtown Chicago bar.”

As Savage reported in October, that disclosure helped Solicitor General Donald Verrilli Jr win an argument within the Justice Department that failing to notify defendants of evidence derived from such surveillance had no legal basis.

Attorney general Eric Holder said in November he is conducting a review of criminal cases in which evidence has been used that derived from warrantless surveillance.