Now, as a worldwide debate ensues over privacy vs. security, the federal prosecution of suburban Chicago teenager Adel Daoud could become the defining case in how far American authorities may go while snooping on Americans citizens.
In a blunt and occasionally snarky motion filed Friday morning, Mr. Daoud's attorneys chide the government for refusing to disclose whether they used far-reaching electronic surveillance to build a case against the 19-year old west suburban Hillside man. Daoud, an American citizen, was arrested in a federal sting last September amidst a Jihadist plot to blow up a downtown Chicago bar, investigators said.
Daoud's attorney Thomas Durkin, a former federal prosecutor, says that U.S. authorities utilize "a Global War on Terror playbook" to their advantage and then in every case refuse to disclose it.
"Whenever it is good for the government to brag about its success, it speaks loudly and publicly. When a criminal defendant's constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of State Secrets" Durbin states in the motion.
At issue in the Daoud case is whether federal law enforcement agencies relied on electronic surveillance under a controversial, five-year old amendment to the Foreign Intelligence Surveillance Act (FISA.)
The amendment, officially known as the FISA Amendments Act-or FAA-has lately been branded as PRISM. But by whatever name or grouping of letters, it amounts to American authorities spying on American citizens without the usual approval by a conventional public court.
"In the nearly five years since the FAA was enacted, the government has never once disclosed its reliance on material obtained through FAA surveillance" states the Daoud motion. "It would undoubtedly prefer to maintain that record, which has rendered the government's warrantless wiretapping program all but unreviewable in the interim.
"As appears it has done in other cases, the government would be able, in essence, to transform its FAA surveillance into FISA evidence—reaping the fruits of that FAA surveillance, while cleverly sidestepping any possible constitutional challenge to the FAA's warrantless wiretapping program."
Prosecutors contend that federal law does not require the disclosure sought by lawyer Mr. Durkin in Daoud's case. In a court filing last week, government attorneys maintained that they have actually provided more information than the required minimum-although they did not disclose whether extraordinary surveillance tactics were used during the two-year Daoud investigation.
Daoud's legal team disputes that and Judge Sharon Coleman Johnson will determine who is correct.
As the I-Team first reported, Daoud's legal defense team says it first learned of the spy campaign against the Hillside teen from the floor of the United State Senate.
"When Senator Diane Feinstein urged the Senate to reauthorize the FAA during a December 27, 2012, floor debate, she observed that the FAA had been used in nine specific cases, including a 'plot to bomb a downtown Chicago bar.' The government does not deny that this is a reference to Defendant's case, but if nothing else, the government should be forced to answer whether Senator Feinstein had correct information from the intelligence agencies when she spoke from the Senate floor."
Daoud, who has been held without bond in the Chicago MCC since his arrest last September, is now looking for notice from the government concerning suspicions that agents eavesdropped on him, monitored his internet usage and surveilled him using any other electronic methods.
"Whether the government relied on FAA surveillance when it obtained its FISA order is a crucial element of giving adequate notice to criminal defendants. The government should be compelled to provide a simple 'yes' or 'no' answer to the question of whether its evidence was obtained or derived from electronic surveillance conducted under the FAA" his motion states.
As the NSA and PRISM spy programs controversy grows around the world, U.S. officials have eeked out some details. According to attorney Durkin: "On June 18, 2013, Army Gen. Keith Alexander, the director of the National Security Agency, appeared before the House Intelligence Committee and testified that NSA surveillance programs helped prevent 'potential terrorist events over 50 times since 9/11."
"As appears it has done in other cases, the government would be able, in essence, to transform its FAA surveillance into FISA evidence—reaping the fruits of that FAA surveillance, while cleverly sidestepping any possible constitutional challenge to the FAA's warrantless wiretapping program" the defense motion states.
"In the nearly five years since the FAA was enacted, the government has never once disclosed its reliance on material obtained through FAA surveillance to counsel's knowledge. It would undoubtedly prefer to maintain that record, which has rendered the government's warrantless wiretapping program all but unreviewable in the interim."
Well publicized leaks this month from former National Security Agency contractor, Edward Snowden have revealed that a secret Foreign Intelligence Surveillance Court (FISA court) authorized the gathering of U.S. phone records. Another program made public by Snowden showed that American agents track the use of U.S.-based Internet servers by foreigners with possible links terrorism.
Last February, the Supreme Court blocked U.S. citizens from challenging the 2008 expansion of FISA on grounds they could not prove the government will monitor their conversations along with those of potential foreign terrorist and intelligence targets. The vote was 5-4.
