Very Mention of Snowden’s Name Makes Prosecutors Tremble

NSA whistleblower Edward Snowden has become such a powerful symbol of government overreach that federal prosecutors in a terror case in Chicago are asking the judge to forbid defense attorneys from even mentioning his name during trial, for fear that it would lead the jury to disregard their evidence.

The upcoming trial is of Adel Daoud, a slow-witted Chicagoland teenager caught in yet another FBI terror sting aimed at someone vulnerable to manipulation. An undercover federal agent provided Daoud with a fake car bomb parked outside a downtown Chicago bar, and then let him push the detonator.

Much of the evidence in the case — involving Daoud’s online explorations into Islam and jihad — was gathered through surveillance conducted using secret warrants issued by the Foreign Intelligence Surveillance Act (FISA) court.

Prosecutors from the U.S. Attorney’s office in Chicago asked Judge Sharon Johnson Coleman on Wednesday to prohibit the defense from mentioning Snowden’s name — along with a number of other things, such as the existence of the National Security Agency, or a speech by Senator Dianne Feinstein in which she cited “a plot to bomb a downtown Chicago bar” as an example of one that was thwarted thanks to FISA authorities.

Their concern: Those topics “are irrelevant and would tend to elicit jury nullification, so the defendant should be barred from inquiring of witnesses, presenting evidence, or arguing to the jury about them.”

A key issue in the case has already been extensively litigated. Judge Coleman in January 2014 ruled that Daoud’s security-cleared lawyers should be allowed to see all the classified materials the government submitted in order to get their FISA warrants.

The Seventh Circuit Court of Appeals reversed her order in June 2014. And the Supreme Court in February let the appellate court ruling stand.

The prosecutors don’t want the defense talking about that, either:

The discovery disputes in this case touch on issues of national security and have been thoroughly litigated. They are not, however, matters that should be brought before the jury. Neither party should request discovery from witnesses or the Court in the presence of the jury, for such requests leave the impression that a party has suppressed information as a means of seeking an unfair advantage.

Here’s how prosecutors explained their desire to classify Snowden as someone who must not be named (legal citations removed):

Much of the government’s evidence in this case was acquired pursuant to the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801, et seq., the lawfulness of which has already been reviewed — and approved — by the Seventh Circuit.

The defendant thus should be precluded from asking questions, presenting evidence, or making arguments to the jury designed to challenge the legality or propriety of the government’s evidence collection methods. Though the defendant may argue to the jury the weight that should be accorded the evidence, he should not be permitted to encourage the jury to disregard the evidence because of the means of collection.

So, specifically:

[T]he defendant should be precluded from making reference to the following subjects, as they are irrelevant to the issues in the case, or would serve to encourage jury nullification: Edward Snowden, the National Security Agency, the FISA Amendments Act, statements by Senator Diane Feinstein made on December 27, 2012, regarding the reauthorization of the FAA, or other prosecutions, investigations, or other matters outside of the record. A juror’s opinion on Edward Snowden, the NSA, or any other issue regarding the government’s collection of evidence against the defendant has no place in this trial.

For good measure, the prosecutors also don’t want the defense to claim entrapment, either:

[T]he defendant should be precluded from arguing or suggesting that the undercover technique the government used in the underlying investigation was improper. Any argument attacking the government’s investigative techniques would not only be improper, but it should also trigger an instruction that such investigative techniques are entirely proper.

Daoud was charged not only with attempting to use a weapon of mass destruction and attempting to damage and destroy a building by means of an explosive, but also with soliciting a crime of violence and obstruction of justice because, while in jail, he allegedly tried to put out a hit on the undercover agent who set him up. Daoud’s defense lawyers told the Chicago Sun-Times that the FBI enlisted a “hulking gang-banger” who wanted to be out of jail for Christmas to be their confidential informant (CI) and lure their “diminutive teenage” client into the murder-for-hire plot.

Prosecutors announced in their Tuesday filing that they don’t intend to call the informant, just the recordings of his conversations. “Because the CI will not be testifying, and his statements will not be offered for the truth of the matter asserted, any impeaching information is irrelevant,” they argued.

(This post is from our blog: Unofficial Sources.)

Photo of Adel Daoud, via U.S. Marshal’s Office