Secret Courts, Secret Evidence, and American Justice

Techdirt has recently covered a just shameful decision out of the US. The case involved an alleged domestic terror suspect who the FBI helped in every way to plan a bombing in Chicago. From the article:

Daoud’s lawyers made a much more thorough request for the evidence obtained via the FAA. As they note, there may be significant problems with the FISA information, including, but not limited to the FISA application for electronic surveillance may fail to establish probable cause that Dauoud was “an agent of a foreign power.” As they note, he was an American citizen and school student in suburban Chicago. They also suggest the FISA application may have contained material falsehoods or omissions and might violate the 4th Amendment. The surveillance also may have violated the FISA law. There are many other reasons they bring up as well.

The Justice Department (of course) argued that it shouldn’t have to hand over any of this info, in part because it’s classified and in part because they’re not going to use that evidence against Daoud.

Unfortunately, the court wasted little time in agreeing with the feds that they don’t need to turn over the evidence collected under FISA.

Just to be clear, this means that a secret court approved the secret surveillance of a domestically situated American citizen, and then refused to disclose the collected evidence. The American defendant, then, cannot know the totality of evidence that the state collected. This evidence might have played a key role in subsequent investigative efforts and, as a result, may have ‘poisoned’ the subsequent evidence.

Of course, we seemingly won’t ever know if such a poisoning theorem is true or not. All we’ll know is that American courts permit the state to engage in secret surveillance without disclosing what was collected to defence attorneys. And declare all subsequent proceedings as a ‘fair’ trial environment.