Appellate judge, attorney spar during do-over hearing in terror case
BY KIM JANSSEN Federal Courts Reporter June 9, 2014 7:04PM
Adel Daoud, of Hillside, is charged with terrorism for allegedly trying to set off what he thought was a car bomb Sept. 14, 2012, near a downtown Chicago bar. | AP file photo
Updated: June 9, 2014 7:10PM
It was supposed be a neat and tidy do-over of a bungled terror hearing that embarrassed the 7th Circuit of the U.S. Court of Appeals last week.
But a second attempt at oral arguments in the case of alleged wannabe downtown bar bomber Adel Daoud provided rare courtroom drama Monday afternoon when Daoud’s lawyer got in an unusually personal spat with Chicago’s prickliest judge.
Daoud’s attorney Thomas Durkin accused Judge Richard Posner of repeatedly interrupting him and, in an angry aside, barked at the judge, “What I don’t understand is why you’re hostile to me in this case.”
Posner, who’s widely expected to side against Daoud and in support of government secrecy in terror cases, shot back, “If you don’t answer my question, I get irritated.”
The angry exchange — one of several during the short hearing — came in a case that has attracted national attention because of its links to the controversial secret government surveillance programs revealed last year by NSA leaker Edward Snowden.
Daoud, 20, of Hillside, is accused of plotting to blow up a pair of South Loop bars in September 2012. But his attorneys want the 7th Circuit to grant them access to classified government evidence that they hope will lead to the case against Daoud being tossed before his trial, due to begin in November.
The records may show that Daoud was researching a high school essay about Osama bin Laden on the internet — potentially a protected 1st Amendment activity — when he was discovered by FBI agents who later set him up in a sting operation, Durkin argued Monday.
In an unprecedented move, a lower court judge previously ruled Durkin could see the secret records, but prosecutors appealed that decision, saying it would harm national security.
The appeal was initially argued last Wednesday, partly in private with Daoud’s attorneys and the media locked out, but a screw-up by court staff who “freaked out” when they saw FBI agents sweeping the courtroom for bugs meant that even the public part of that original hearing wasn’t recorded.
The high-profile nature of the case meant Judges Posner, Ilana Rovner and Michael Kanne ordered the hearing be held again Monday, this time with the court’s recorder switched on.
After Posner explained to the court that there was no legal requirement that the hearing be recorded, Durkin and Posner soon clashed Monday when Durkin failed to explain to Posner’s satisfaction what was so special about Daoud’s case that he should be able to see the top secret files.
“Let me finish, and I don’t mean that respectfully,” Durkin told the judge, in what both he and the judge moments later called a “Freudian slip.”
The judge replied “I’m glad you don’t mean it respectfully — at least you’re being candid.”
Though both men laughed off the awkward moment, it was a rare chance to see Posner on the receiving end of a verbal volley.
Known as one of the nation’s finest legal minds, his withering questioning has been known to reduce highly-skilled lawyers to a bundle of stammering nerves.
He once compared himself to his cat, saying he was “playful, but with a streak of cruelty.”
Speaking after Monday’s hearing, Durkin, who wears his hair and his moustache bushy in the style of an old Western gunslinger, did not appear confident he’d convinced Posner.
“I always say, if you’re going to bet, bet on the government,” he said.