CA7: Defense counsel’s security clearance doesn’t help see FISA material for Franks challenge

Just because defense counsel has security clearance, he doesn’t get to see all the material used in a FISA warrant for a Franks challenge. Balancing is required. On de novo review, defense counsel doesn’t get it. United States v. Daoud, 2014 U.S. App. LEXIS 11140 (7th Cir. June 16, 2014):

Everyone recognizes that privacy is a legally protectable interest, and it is not an interest of private individuals alone. The Foreign Intelligence Surveillance Act is an attempt to strike a balance between the interest in full openness of legal proceedings and the interest in national security, which requires a degree of secrecy concerning the government’s ef-forts to protect the nation. Terrorism is not a chimera. With luck Daoud might have achieved his goal of indiscriminately killing hundreds of Americans–whom he targeted because, as he explained in an email, civilians both “pay their taxes which fund the government’s war on Islam” and “vote for the leaders who kill us everyday.”

Conventional adversary procedure thus has to be compromised in recognition of valid social interests that compete with the social interest in openness. And “compromise” is the word in this case. Daoud was first indicted almost two years ago. Defense counsel have been conducting discovery and have submitted extensive factual allegations to the district court. Those allegations-made in an extensive proffer by the defendant-were before the district judge when she was considering whether to disclose any of the classified FISA materials to defense counsel, along with the factual allegations made by the government as the result of its investigation. It was her obligation to evaluate the parties’ allegations in light of the FISA materials to determine whether she could assess the legality of those materials herself, without disclosure of them to Daoud’s lawyers.

The defendant’s lawyers place great weight on the difficulty of conducting a Franks hearing to determine the legality of a warrant to conduct FISA surveillance. Franks v. Delaware, 438 U.S. 154 (1978), held that a defendant can challenge a search or arrest warrant on the ground that it was procured by a knowing or reckless falsehood by the officer who applied for the warrant. Id. at 155-56. Defense counsel would like to mount such a challenge in this case. But that’s hard to do without access to the classified materials on which the government relied in obtaining a warrant to obtain access to Daoud’s communications. The drafters of the Foreign Intelligence Surveillance Act devised a solution: the judge makes the additional determination, based on full access to all classified materials and the defense’s proffer of its version of events, of whether it’s possible to determine the validity of the Franks challenge without disclosure of any of the classified materials to the defense. The judge in this case failed to do that.

She seems to have thought that any concerns about disclosure were dissolved by defense counsel’s security clearances. She said that “the government had no meaningful response to the argument by defense counsel that the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances”–as if disclosing state secrets to cleared lawyers could not harm national security. Not true. Though it is certainly highly unlikely that Daoud’s lawyers would, Snowden-like, publicize classified information in violation of federal law, they might in their zeal to defend their client, to whom they owe a duty of candid communication, or misremembering what is classified and what not, inadvertently say things that would provide clues to classified material. Unless and until a district judge performs his or her statutory duty of attempting to determine the legality of the surveillance without revealing any of the fruits of the surveillance to defense counsel, there is no basis for concluding that disclosure is necessary in order to avert an erroneous conviction.

It’s also a mistake to think that simple possession of a security clearance automatically entitles its possessor to access to classified information that he is cleared to see. (The levels of classification differ; someone cleared for Secret information is not entitled to access to Top Secret information.) There are too many leaks of classified information–too much carelessness and irresponsibility in the handling of such information-to allow automatic access to holders of the applicable security clearances. More than a million and a half Americans have security clearances at the Top Secret level, which is the relevant level in this case. Office of Management and Budget, “Suitability and Security Processes Review: Report to the President,” Feb. 2014, p. 3, www.whitehouse.gov/sites/default/files/omb/reports/suitability-and-security-process-review-report.pdf (visited June 14, 2014). Like the Fifth Circuit in United States v. El-Mezain, 664 F.3d 467, 568 (5th Cir. 2011), “we are unpersuaded by the defendants’ argument that the Government’s interest [in confidentiality] is diminished because defense counsel possess security clearance to review classified material.”

So in addition to having the requisite clearance the seeker must convince the holder of the information of the seeker’s need to know it. If the district judge’s threshold inquiry into whether Daoud’s lawyers needed any of the surveillance materials revealed that they didn’t, their security clearances would not entitle them to any of those materials. The statute says that disclosure of such materials to them must be “necessary”; even without that word (the vagueness of which in legal contexts is legendary, as lucidly explained in Cellular Telecommunications & Internet Ass’n v. FCC, 330 F.3d 502, 509-12 (D.C. Cir. 2003)), the judge in this case would have had to determine the lawyers’ need for the materials-more precisely, her need for them to have access to the materials so that she could make an accurate determination of the legality of the challenged surveillance. Rather than asserting such a need, she affirmed her capability of making an accurate determination without disclosing any classified materials to defense counsel. Because she was “capable” of making the determination, disclosure was not “necessary” under any definition of that word. We conclude regretfully that the judge thus disobeyed the statute.