The Court of Appeals Reversed the District Court’S order Granting Defense Counsel Access to Classified Documents under FISA

United States v. Daoud, No. 14-1284. Daoud was indicted for attempting to use a weapon of mass destruction and attempting to damage and destroy a building by means of an explosive and soliciting murder for hearing and witness tampering. The government notified him that pursuant to 50 U.S.C. §§ 1806(c) and 1825(d), sections of the Foreign Intelligence Surveillance Act (FISA), that it intended to present evidence derived from electronic surveillance conducted under FISA. Defense counsel filed a motion seeking access to the classified materials in support of the FISA warrant applications. The government provided defense counsel with a heavily redacted, unclassified response, and provided the district court with a classified version. The district court reviewed the classified materials and ordered the government to turn them over to the defense. The government filed an interlocutory appeal and the Court of Appeals reversed the district court’s determination. The Court determined there are compelling reasons for the information to remain classified and it is possible to determine the legality of the government’s investigation of Daoud without disclosure of the classified materials. The Court reversed the district court’s order. The Court also determined, after its own review, that the investigation did not violate FISA. The Court issued a classified opinion explaining its conclusions.