FISA — national security

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U.S. Court of Appeals for the 7th Circuit

Criminal

FISA — national security

A district judge must attempt to determine the legality of surveillance without revealing any of the fruits of the surveillance to defense counsel before concluding that disclosure of classified information 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/suitabi lity-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.’”

Reversed and Remanded.

14-1284 U.S. v. Daoud

Appeal from the United States District Court for the Northern District of Illinois, Coleman, J., Posner, J.