U.S. v. Daoud

In prosecution on charges that defendant attempted to use weapon of mass destruction and attempted to damage building by means of explosive, Dist. Ct. erred in finding, after conducting in camera and ex parte procedure of classified materials under Foreign Intelligence Surveillance Act (FISA), that although she was capable of making accurate determination as to whether classified information obtained in govt.’s electronic surveillance of defendant was lawfully conducted under FISA based upon information contained in classified materials, such materials should be made available to defendant’s counsel because said materials “may be necessary” in going forth with his motion to suppress such surveillance evidence. Attorney General made necessary statement that disclosure of such classified materials would harm national security of U.S., and FISA language allows disclosure to defendant’s counsel only if Dist. Ct. could not make ruling on motion without assistance of defendant’s counsel. Fact that defendant’s counsel had requisite security clearance to receive such information did not require contrary result. Ct. also indicated that it would be drafting classified opinion to explain its observation that govt. investigation into defendant’s activities did not violate FISA.