The Supreme Court’s hesitancy about ruling on challenges to the government’s massive electronic wiretapping program continued on Monday, as the Justices refused, without comment, to hear the constitutional case of a young Illinois man awaiting trial for an alleged bombing plot in Chicago.   The federal government had chosen not to respond to the case, which very likely doomed any chance the case might otherwise have had to be heard.

Daoud v. United States was the first case, in the nearly four-decade history of electronic spying by the U.S. government to gather foreign intelligence, in which a federal judge had ordered the government to turn over secret papers about how it had obtained evidence through wiretaps of telephones and Internet links.  That order, however, was overturned by the U.S. Court of Appeals for the Seventh Circuit, whose ruling was the one the Justices on Monday declined to review.

The denial of that case came on a lengthy list of orders the Justices issued upon returning from a four-week winter recess.  The Court did not grant review in any new cases, nor did it send any cases to the Justice Department to get the federal government’s views.  Among other actions, the Court refused to reopen a case it had granted but then dismissed when the petitioner in the case failed to meet a filing deadline.  That case was Chen v. Mayor and City Council of Baltimore.

One of the unusual features of the government’s global electronic spying program is that the individuals whose conversations or e-mails have been monitored almost never hear about it, because the program is so shrouded in secrecy — except when the news media manages to find out some details.  But, if the government plans to use evidence it gathered under that program against a defendant in a criminal trial, it must notify the defendant that he or she has been monitored.

Thus, a criminal trial like that involving Adel Daoud of Hillside, Illinois, now moving toward opening of the actual trial in Chicago, provides a rare chance for an individual overheard on a government wiretap to challenge the legality of such surveillance.

Even so, the government still has the option of arguing in court that the papers it filed with a specialized federal court, seeking permission to conduct specific surveillance, are so sensitive that they cannot be disclosed, even to a defense lawyer who has a security clearance.

The government invoked that authority in Daoud’s case, and U.S. District Judge Sharon Johnson Coleman ordered the government to disclose those papers to a member of Daoud’s legal team who has the necessary “top secret” clearance.  The Justice Department appealed that decision to the Seventh Circuit, which set it aside, ruling that the judge had not followed the proper procedures, and, in any event, the surveillance that led to monitoring of Daoud’s communications was actually legal.

When the Seventh Circuit decided the case, one of the three judges on the panel, Circuit Judge Ilana Diamond Rovner, argued that all three branches of government had an obligation to try to work out ways for those accused of crime based on intelligence wiretapping a chance to contest the legality of that surveillance.

Daoud’s lawyers took the case on to the Supreme Court, arguing that it is unconstitutional to totally deny a criminal suspect any meaningful opportunity to test the legality of the method of electronic surveillance used to gather criminal evidence.  The Justice Department opted not to respond to that challenge.  When that kind of waiver occurs, the Court has the option of asking for a response.  It did not do so in this case, and simply denied Daoud’s petition without explanation.

Daoud’s actual trial has not yet begun.  Currently, the two sides are locked in a dispute before Judge Coleman over whether the government has to disclose to Daoud’s lawyers the identity of an undercover agent who supplied Daoud with a fake bomb and helped him plan to detonate the bomb outside a bar in the Loop section of downtown Chicago.  The bomb, as the government had planned, did not go off.

The Court’s other action of note in the orders it issued on Monday was to deny a petition for rehearing filed on behalf of a New York man, Bobby Chen.  Chen had succeeded in obtaining Supreme Court review of his case, on a technical procedural point about notification of the other side in a legal dispute.  But Chen, who was then acting as his own lawyer, missed the date for filing his brief on the merits.  When the Court could not locate him, it dismissed his case on January 9.

With the aid of a noted Supreme Court advocate, Washington attorney Paul D. Clement, Chen urged the Justices to revive the case and proceed to decide it.  The petition said that Chen was injured in a fall during a trip to California, and lost contact with his case, but had no intention of abandoning it.  Because he was proceeding without a lawyer, the petition said, the Court should give him some slack about missing the deadline inadvertently.

In a brief order containing no explanation, the Court simply denied the rehearing plea.

Posted in Chen v. Mayor and City Council of Baltimore, Maryland, Cases in the Pipeline, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Court passes up new global spy case, SCOTUSblog (Feb. 23, 2015, 11:18 AM), http://www.scotusblog.com/2015/02/court-passes-up-new-global-spy-case/