Remember the case of 18 year old Abdella Tounisi in Chicago, a U.S. citizen?
He isn't charged with planning anything in the U.S. -- he had decided to go to Syria and fight with jihadists there. The FBI caught him by setting up a pretend Islamic terror recruiting website. He fell for the bait. During their online communications, Tounisi told the FBI he was very physically very small and had no fighting experience. He also told them he had no contacts in Syria. The FBI assured him his size didn't matter, they would train him, and then instructed him on how to make flight arrangements to Turkey. It even sent him a bus ticket for the next leg of his journey. He was arrested at O'Hare after checking in for his flight to Turkey.
According to the Complaint, the FBI monitored his google searches, the You Tube videos he watched, his IP address log-ins, and e-mails.
The judge recently ruled he can't see the discovery in his case because it's classified. Same thing in the case of Chicago teen Adel Daoud. The judge's order in Tounisi is here.
"The government's interest in protecting national security does not evaporate simply because a defendant allegedly involved with terrorism insists on having personal access to classified information without having the necessary security clearance. Nor does the government have to compromise national security in order to prosecute an accused terrorist."
Here's the procedure proposed by the Government and accepted by the Court for Tounisi to view the evidence against him.
Defense counsel is allowed to review material on a classified laptop in a secure area established by the Court Information Security Officer. Defense counsel may identify particular items she believes Tounisi needs to review, and inform the Government of those items.
If the requests are reasonable, the Government will then submit the items to the Federal Bureau of Investigations (FBI) for declassification review. If the FBI determines that particular items should not be declassified, or any other issue arises as to the items, the parties will address the issue with the court. If the FBI declassifies a requested item, a declassified version will be provided to defense counsel to share with Tounisi.
Tounisi's lawyer says the restrictions violate his Fifth and Sixth Amendment rights to effective representation, a fair and speedy trial, due process, and to meaningful participate in his defense.