CHICAGO – The U.S. 7th Circuit Court of Appeals took a judicial mulligan Monday after staff failed last week to follow standard practice and record what was supposed to be the only such hearing in a terrorist case touching on surveillance issues broached by Edward Snowden.
The rare do-over of oral arguments at a U.S. appellate court started slowly with one judge even saying she would try and carefully recreate as best she could the questions she asked the parties in the unrecorded hearing.
But any chance of an approximate replay of last week’s hearing evaporated when a lawyer for terrorism suspect Adel Daoud abandoned courtroom deference and began clashing with the presiding judge of the three-judge appellate panel, Judge Richard Posner.
Daoud, a 20-year-old U.S citizen, has denied government allegations that he accepted a phony car bomb from undercover FBI agents in 2012, parked it by a Chicago bar and pressed a trigger. His trial is scheduled to start Nov. 10.
“What I don’t understand is why you are hostile to me in this? Why your tone of voice is hostile?” asked attorney Thomas Durkin, a nationally prominent defense lawyer who stepped in Monday for another defense lawyer who delivered the arguments last week.
“What? If you don’t answer my questions, I get irritated,” Posner responded.
Officials said last week that workers responsible for turning on a court recorder at the initial hearing were startled by U.S. agents who swept the room for bugging devices and so assumed – wrongly – that all recordings were prohibited. A recording of Monday’s hearing was successfully made and promptly posted on the court website later in the afternoon.
The legal issue at the center of both the original hearing and the do-over was a government request for the court to reverse a trial judge’s unprecedented ruling that Daoud’s lawyers should be able to see secret records from the Foreign Intelligence Surveillance Court, or FISA court, about their client.
Prosecutors say opening the secret documents could jeopardize national security. But the defense argues that understanding all the evidence, including any expanded surveillance that may have been used against Daoud, is critical to their client getting a fair trial.
Durkin told Monday’s hearing that Daoud was working on a high school term paper about Osama bin Laden around 2012 and that the FISA records could shed light on whether U.S. investigators flagged Daoud because of Internet searches regarding bin Laden.
In his comments to the court, Durkin praised the lower court judge, Sharon Johnson Coleman, saying she displayed courage by becoming the first judge in the FISA court’s 36-year history to agree to grant defense attorneys access to such records.
“This is a high-profile case. ... It is a case that calls out for judicial courage,” Durkin said.
Unlike at the first hearing, the name of Snowden came up repeatedly as Durkin sought to address the national debate regarding revelations by the former National Security Agency contractor about expanded U.S. phone and Internet spying.
“There are a lot of people questioning the integrity of the system,” Durkin boomed.
Judge Posner repeatedly stopped as Durkin raised wider questions about the extent of government spying.
“You keep wandering off the case,” Posner scolded him.
Despite points of tension between Durkin and Posner, there also were moments of levity. That included when Durkin misspoke as the two were arguing and interrupting each other.
“If you’d let me finish, and I don’t mean that respectfully,” Durkin said before apologizing and correcting himself.
“It’s known as a Freudian slip. ... that’s when a person reveals what he really thinks,” Posner said, smiling.
“You may be right about that,” Durkin laughed. “I actually like you, believe it or not.”