Lawyers for an Islamic scholar, a Fort Lauderdale computer programmer and an Ohio trucker want federal judges to determine whether evidence used against their clients was gathered by a secret domestic spying program. The cases are among the first to challenge the legality of the Bush administration's use of domestic wiretaps without authorization from a court.
Jonathan Turley, a lawyer and George Washington University law professor, said there “seems to be a great likelihood” that his client, Ali al-Timimi, a northern Virginia Islamic cleric, was “subject to this operation.”
Attorney Kenneth Swartz of Miami also said Wednesday that he wants to know whether any evidence was gathered by the National Security Agency without a warrant and used to convince a secret court to authorize six years of wiretaps of his client, Adham Amin Hassoun.
Truck driver's case
Late Wednesday, attorney David Smith said he also will incorporate the NSA wiretaps into his appeal on behalf of Iyman Faris, a truck driver convicted of plotting to destroy the Brooklyn Bridge. NSA wiretaps first led federal agents to Faris, according to anonymous government sources cited by The New York Times.
Faris, 36, pleaded guilty in 2003 to conspiracy and aiding and abetting terrorism, and was sentenced to 20 years in prison. Prosecutors cited incriminating statements he made under questioning by federal agents.
“If all I had was the NSA intercept issue, I don’t think I’d be able to get Faris’ conviction overturned,” Smith, Faris’ appellate lawyer, said.
The appeal will be based an argument that Faris had ineffective counsel during the trial phase, grounds made stronger by the NSA revelations, Smith said. He said that Faris’ trial lawyer never asked prosecutors for information on any wiretaps in the case.
Bush approved warrantless intercepts
Last month, Hassoun and Jose Padilla, a U.S. citizen held for nearly four years as an “enemy combatant,” were charged with raising money to support violent Islamic fighters outside the United States.
President Bush has acknowledged that within days of the Sept. 11 attacks he authorized the NSA to conduct warrantless intercepts of conversations between people in the United States and others abroad who had suspected ties to al-Qaida or its affiliates.
In doing so, the administration bypassed the nearly 30-year-old secret Foreign Intelligence Surveillance Act court established to oversee the government’s handling of espionage and terrorism investigations.
Cleric's conviction under appeal
Turley already has appealed the case to the Richmond-based 4th U.S. Circuit Court of Appeals, asking that al-Timimi’s conviction and life sentence be overturned. Turley argued that the prosecution was a violation of al-Timimi’s free speech rights.
His conviction was based on statements he made at a dinner days after the Sept. 11 attacks at which he urged several young Muslim men to join the Taliban and fight U.S. troops overseas.
Al-Timimi’s lawyer said he recently has contacted federal prosecutors in Alexandria, Va., where a jury convicted al-Timimi in April, seeking their cooperation in asking the appeals court to return the case to U.S. District Judge Leonie Brinkema, who presided over al-Timimi’s monthlong trial.
Brinkema could determine whether NSA-gathered evidence was used against al-Timimi, without the court being told, Turley said. She also could press the government to reveal whether it withheld evidence gathered by the NSA that could have helped al-Timimi’s defense, he said.
If prosecutors decline to go along, Turley said, he will file a request next week asking the appeals court to send the case back to Brinkema.
Prosecutors probably did not know about the domestic spying program, Turley said. “It’s possible that prosecutors had no idea of the origin of this evidence.”
A question of balance
Swartz, the lawyer representing Hassoun, told The Times that “they absolutely have an obligation to tell us” whether the NSA was wiretapping the defendants.
Carl W. Tobias, a law professor at the University of Richmond, told The Times that a question of balance would be central in how judges rule on the scope of the spying program.
“I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants,” Tobias told the Times. “I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security.”