By Austin Nolen
Newly-unsealed records in the prosecution of a North Philadelphia woman who was accused of attempting to join the Islamic State show that defense attorneys inquired about classified surveillance programs to determine if prosecutors were overstating the evidence against their client.
The Declaration previously reported on the efforts of the defense team for Keonna Thomas to force the government to disclose any classified surveillance of their client. Now, we can exclusively report on a closed-door hearing which occurred last summer where the defense pressed their case in more detail.
An audio recording made of the hearing was unsealed in response to a motion filed by The Declaration. On the tape, defense attorneys can be heard articulating precisely why they wanted access to any classified surveillance of their client.
In federal criminal cases involving classified information, the government can use a law known as the Classified Information Procedures Act to limit defense access to sensitive records.
According to Melanie Reid, a law professor and former federal prosecutor, Section 4 of CIPA “allows the government to obtain a court order limiting discovery of certain classified information.”
As Reid told The Declaration, in order for prosecutors to get an order limiting discovery, “they basically have to show to the court that the classified information is not discoverable, because it is not relevant” to the charges at hand.
However, unlike a judge’s decision in a normal criminal case that information is not relevant, CIPA Section 4 orders are sealed and unavailable to anyone but prosecutors and judges. This makes it much harder for the defense to challenge the government’s claims that information is not relevant to the case.
In fall of 2015, the judge in Thomas’ case made a CIPA Section 4 finding that certain classified material in possession of the government did not have a bearing on the charges against Thomas. This order was also partially unsealed in response to The Declaration’s motion.
The portion of the order unsealed and available to the public and the defense team provides no information about what kinds of records are covered by the order.
In the order, Senior U.S. District Court Judge Michael M. Baylson found that none of the classified information that the government wanted to shield would be “relevant and helpful” to the defense in any aspect of defending Thomas, a standard set by the U.S. Supreme Court in 1957 in Roviaro v. United States.
Last summer, the defense team asked Judge Baylson to reconsider. Part of that effort played out in briefs which were unsealed at the request of The Declaration.
The defense also pressed the issue in a closed-door hearing. On August 12th, 2016, two defense attorneys met with Judge Baylson in his chambers to explain exactly why they believed classified surveillance records would be “relevant and helpful” to their case.
In public, the defense had already argued that they needed classified information in order to assess whether or not Thomas was subjected to controversial and possibly unlawful surveillance techniques such as those exposed by Edward Snowden.
If she had been, the defense could have sought to suppress other evidence found by the government as a result of the initial surveillance.
In the closed session, attorneys Kathleen Gaughan and Andrew Dalack explained the other reason they believed classified information was “relevant and helpful.” It might, they argued, show that their client had no intent to commit a crime.
As an example, Gaughan cited an exchange between Keonna Thomas and an ISIL fighter, in which Thomas allegedly said that “a girl can only wish” about becoming a suicide bomber and the fighter responded “I can make that wish come true.”
However, Gaughan said that when the government turned over the full transcript of that conversation, “this is how this reads… the fighter then says to Ms. Thomas ‘If you get to know me personally, I’m a keeper.’ She then says ‘a girl can only wish,’ he then responds ‘I can make that wish come true.’”
In other words, the defense claimed the government removed key context from Thomas’ statement. Using this conversation as an example, the defense asked Judge Baylson to review the classified records for similar conversations.
According to Gaughan, “some of her conversations could negate her intent to go on a suicide mission. If she’s talking about her future plans, if she’s talking about things she’s planning on doing, if there are conversations regarding her children,” that could be relevant and useful for the defense to show lack of intent.
Gaughan argued that Judge Baylson should go back and review the material covered by his CIPA Section 4 order “with a targeted concern towards a clear insufficiency of evidence and overreaching of the government.”
However, on August 18th, Judge Baylson denied the defense motion to be provided with information about classified surveillance. He did suggest that the defense could file a motion to suppress any evidence derived from classified surveillance.
During the suppression hearing, Judge Baylson told the defense attorneys in the closed session, they could pose questions to the FBI about whether agents used classified surveillance to find probable cause for the regular search warrants issued in the case.
The defense did file a suppression motion late last August, but on September 20th, 2016, Thomas plead guilty to a charge of attempting to provide material support to terrorism. She will be sentenced on September 25th, 2017. The Declaration will be in court again on May 25th to argue for access to more sealed records in the case.