Are Classified, Ex Parte Appellate Hearings “cross-examination of the government”

June 10th, 2014

During the oral argument do-over in United States v. Adel Daoud (remember they failed to record the first one because the staff was “intimidated” by the DOJ), Judge Posner seemed outrage that Thomas Durkin, the lawyer for Daoud, objected to the fact that after his arguments were over, the Court would close the doors and conduct an ex parte hearing with the government lawyers. Posner replied that the ex parte hearing was like a “cross-examination of the government” that “could only help the defendant.”

After that public session ended, Posner ordered the courtroom cleared to the surprise of Durkin and other observers so he and the two other judges on the panel could question government officials about classified documents that a district court judge had ruled Daoud’s attorneys could review. Those include search warrant applications that had been presented to the secretive and controversial Foreign Intelligence Surveillance Act court.

Over the weekend, Daoud’s attorneys filed a formal objection to the closed session. During the argument Monday, Posner called the request “ironic.”

“This was cross-examination of the government, and it could only help the defendant,” he said of the secret session.

Is this right? Are ex-parte hearings where the judges can grill the government like “cross-examinations.” Obviously the lawyer for Mr. Daoud did not think so.

Of note is an opinion by Judge Boggs, which was argued while I clerked for him, in another Classified Information Procedures Act (CIPA), United States v. Amawi.

When reviewing a district court’s decision to withhold information under CIPA, this court is placed in a somewhat unfamiliar posture. Rather than neutrally deciding disputes with an open record based on the adversarial process, we must place ourselves in the shoes of defense counsel, the very ones that cannot see the classified record, and act with a view to their interests. Meija, 448 F.3d at 458 (“[T]he defendants and their counsel, who are in the best position to know whether information would be helpful to their defense, are disadvantaged by not being permitted to see the information—and thus to assist the court in its assessment of the information’s helpfulness.”). Acting as if we were in essence standby counsel for the defendants, we must determine what may be “relevant and helpful” to them. This is not a position that we relish, yet it is required by CIPA, as interpreted by Yunis and its progeny. And, after a review of the entire record with respect to the claims concerning classified information by the defendants, we find that there was nothing “relevant and helpful to the defense.”