Lawyers for an alleged suburban terrorist who are attempting to see secret surveillance evidence against their client were booted out of a hearing Wednesday by appeals court judges who said the hearing was secret.
In a highly unusual move, the 7th Circuit of the U.S. Court of Appeals ordered lawyers for Adel Daoud to leave the courtroom while prosecutors tried to convince judges on the appeals court panel to keep the controversial evidence under wraps.
Daoud, 20, is accused of plotting to blow up a pair of South Loop bars in 2012.
But in a groundbreaking ruling in January, U.S. District Court Judge Sharon Johnson Coleman granted Daoud’s attorney Thomas Durkin the right to examine secret Foreign Intelligence Surveillance Act records, which Durkin hopes could provide grounds for having the case against Daoud thrown out.
Prosecutors immediately appealed Coleman’s ruling, warning it set a precedent that could harm national security.
But a hearing at which the 7th Circuit was due to hear oral arguments from both sides Wednesday afternoon ended in acrimony after Judges Richard Posner, Michael Kanne and Ilana Rovner abruptly booted Durkin, Daoud’s father, the media and everyone else who was not a security cleared government worker from the courtroom for a “secret hearing.”
Daoud’s attorneys stood outside the courtroom looking bewildered.
“I’ve never seen this happen before,” said Durkin, one of the attorneys. “Not only do I not get to be there, I didn’t even get to object. I had to object over the fact that I couldn’t even make an objection.”
As a fuming Durkin was forced to wait outside, around two dozen prosecutors and government agents with clearance were allowed to remain in the courtroom. Among the officials inside the courtroom was U.S. Attorney Zach Fardon.
Durkin called it “farcical” that the government argued it fears a leak of the secret documents when it had allowed more than 20 officials into the courtroom Wednesday.
The longtime attorney presumed the government was presenting the classified evidence his team is seeking.
“What’s happening is we’re having a two-tiered system justice in the federal criminal courts. We have cases on the war on terror, which we allow secret proceedings in because its so sensitive and then we have our regular old justice system and I think that’s . . . very frightening.”
Daoud, of Hillside, is accused of plotting to blow up Cactus Bar and Cal’s Liquors in September 2012, and of later trying to arrange the murder of an FBI agent who helped set him up. He pressed a button he believed would set off the bomb, but the device was in fact a dummy made by the FBI as part of a sting, prosecutors said.
Attorneys for the 20-year-old have said they should be allowed to see evidence collected against their client using the NSA’s controversial Internet and telephone snooping programs.
But Attorney General Eric Holder has said in court documents that disclosure will harm national security.
The case attracted fresh attention after NSA leaker Edward Snowden’s revelations last year about how the secret Foreign Intelligence Surveillance court signed off on expanded spying programs.
Though prosecutors say they won’t use the secret FISA evidence against Daoud at trial, Durkin wants to see it, in the hope he can show early missteps in the case that poisoned the whole investigation.
But during the initial, public, part of Wednesday’s oral argument hearing, the appeals court judges seemed to reserve their toughest questions for Daoud’s attorney.
“You can have all the clearances in the world. You don’t have the right to see classified information unless you need to know,” Judge Posner told another of Daoud’s attorneys, John Cline.
Assistant U.S. Attorney William Ridgway agreed and said, “This is not a case that meets the high bar of necessity for disclosure.”
The 7th Circuit is expected to issue its ruling in the coming weeks.
After Wednesday’s hearing, Daoud’s father, Ahmed Daoud, was reminded of court proceedings in his native country, Durkin said.
“He’s kind of upset this doesn’t look like the American legal system that he came to learn,” Durkin said. “He says it looks more like Egypt.”
The U.S. Attorney’s office declined to comment.
Contributing: Kim Janssen