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Abstract

Sometimes, a seemingly mundane legal issue heard in the trial courts garners such interest that daily newspapers across the United States publicize the issue.  On January 29, 2014, the Los Angeles Times ran a story on an unexpected interlocutory order issued in federal case, United States v. Daoud, which concerned a high-profile terrorism crime allegedly committed in Chicago, Illinois.  The order was issued by the United States District Court for the Northern District of Illinois, Eastern Division, and was reversed five months later by the United States Court of Appeals for the Seventh Circuit.  The district court decision was mainstream newsworthy because Judge Sharon Johnson Coleman ordered the United States government to give accused domestic-terrorist, Abdel Daoud, access to evidence that had been classified “top secret” by the federal government.  Through the discovery process, Daoud requested evidence collected against him under a surveillance warrant authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA).  Daoud sought the classified information so he could determine whether the surveillance was constitutional under doctrine established in Franks v. Delaware.  Since the surveillance warrant was considered extraordinary, the government had to justify the warrant to a FISA Court, a special court established to adjudicate FISA-related matters.   Typically the fact that a FISA warrant was granted remains secret and unknown to a surveillance target until the government announces its intent to use evidence during trial collected under the warrant.  The trial court’s order was newsworthy because no court had previously allowed any defendant access to information shielded from disclosure by FISA.

The government appealed the trial court order to the Seventh Circuit, which held the trial court failed to comply with FISA’s plain language and committed error when it ordered the warrant’s substantiating evidence released to Daoud.  From a statutory interpretation perspective, the Seventh Circuit made the correct decision.  However, the Daoud concurrence highlighted FISA requirements create serious defendant rights issues because defendants, who seek a constitutionally guaranteed Franks hearing, must have knowledge of the evidence he or she desires to challenge in a Franks motion.  Under FISA, defendants are greatly disadvantaged because they are not allowed any FISA-protected evidence required to support a Franks motion.  Therefore, defendants may not receive full constitutional rights during FISA-involved criminal prosecutions.  Judge Coleman’s order provided Daoud constitutional protections consistent with the adversarial trial process.  For reasons explained in this note, the United States Congress should take thorough notice of concerns raised by the Daoud concurrence and recognize the valid policy underpinning Judge Coleman’s order. Future FISA amendments should provide adequate constitutional protections for criminal defendants seeking Franks hearings.

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