The claim in the Chicago case came in an early-morning filing at federal court in Chicago by attorneys for Adel Daoud, a 19-year-old, of Hillside, who is accused of trying to ignite what he thought was a car bomb outside a bar last year in Chicago. Daoud, whose trial is set for Feb. 3, has pleaded not guilty to attempting to use a weapon of mass destruction and other charges.
Legal observers say the question of what the government has to divulge and when has become an increasingly pressing one in light of new revelations about US. intelligence methods, and the answer courts eventually provide could have far-reaching implications.
Recent leaks by a former National Security Agency contractor Edward Snowden revealed that a secret Foreign Intelligence Surveillance Court, or FISA court, authorized one program that gathers U.S. phone records and another that tracks the use of U.S.-based Internet servers by foreigners with possible links to terrorism.
Prosecutors in the Daoud case refused to say in a filling last week whether they used far-reaching surveillance programs to launch their two-year investigation of the suburban teenager, saying they were under no legal obligation to spell out just what led to an FBI sting focused on him.
Friday's 13-page defense filing argues the government's refusal to confirm or deny whether it used those programs left defense attorneys legally hamstrung: With no answer, they have no grounds to mount a challenge to the programs' constitutionality. And yet, prosecutors could still use the evidence at trial.
"Whenever it is good for the government to brag about its success, it speaks loudly and publicly (about its surveillance methods)," the filing says. "When a criminal defendant's constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of state secrets."
A spokeswoman for the U.S. Attorney's Office in Chicago, Kim Nerheim, declined comment on the filing.
But Karen Greenberg, director of the New York-based Center on National Security at Fordham Law School, says government prosecutors, if they can, typically err on the side of not divulging procedures in terrorism cases.
"I don't think it necessary means they fear losing a Supreme Court challenge," she said. "Actually, I don't get the sense they are worried."
She added that defense attorneys face such insurmountable odds in terrorism cases, it's no surprise many are now zeroing in on the constitutionality of surveillance methods.
"They don't have too many other legal tools in their tool box," she said. "You will have more and more of these kinds of challenges."
A judge in the Chicago case is expected to rule soon on whether prosecutors are obliged to say if they used the expanded surveillance.
The primary source of contention in Daoud's case, as in much of the national debate over U.S. surveillance, is the secret FISA court — set up by the 1978 Foreign Intelligence Surveillance Act. FISA amendments passed in 2008 allow the government to obtain broad intercept orders from the court — raising the prospect that calls and emails between foreign targets and innocent Americans could be subject to surveillance.
Similar disputes over the possible use of expanded surveillance have surfaced elsewhere, including in the federal case of two Florida brothers, Sheheryar Alam Qazi and Raees Alam Qazi, arrested last year for allegedly plotting to detonate bombs in New York City. Both men, who are naturalized U.S. citizens, have pleaded not guilty.
A recent filing by Sheheryar Alam Qazi's attorneys echoes the Daoud filing, saying the defense wasn't seeking details about the secret surveillance procedures — only whether they were used.
Since the 2008 amendments extended the reach of the foreign intelligence law, the U.S. government has consistently declined requests in terrorism cases to say if enhanced surveillance powers kick-started wider investigations, according to both the Daoud and Qazi filings.
"(The government) would undoubtedly prefer to maintain that record, which has rendered the government's warrantless wiretapping program all but unreviewable in the interim," the Qazi filing says.
In February, the Supreme Court threw out an attempt by U.S. citizens to challenge the 2008 expansion of FISA because the plaintiffs couldn't prove the government did or will monitor their conversations along with those of potential foreign terrorist and intelligence targets.
But the high court added its decision did not insulate the FISA expansion from judicial review in the future.
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