Legal challenges likely in wiretaps of terror suspects
Defense lawyers want to learn extent of spying program
Eric Lichtblau, James Risen, New York Times
new york times December 28, 2005 04:00 AM Copyright new york times. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Wednesday, December 28, 2005
(12-28) 04:00 PDT Washington -- Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to al Qaeda.
The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out for investigation.
The expected legal challenges add another dimension to the growing controversy over the agency's domestic surveillance program and could jeopardize some of the Bush administration's most important courtroom victories in terror cases, legal analysts say.
The question of whether the National Security Agency program was used in criminal prosecutions and whether it improperly influenced them raises "fascinating and difficult questions," said Carl Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.
"It seems to me that it would be relevant to a person's case," Tobias said. "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. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security."
While some civil rights advocates, legal experts and members of Congress have charged that President Bush did not have the authority to order warrantless eavesdropping by the NSA, the White House and the Justice Department continued to defend the legality and propriety of the program on Tuesday.
Disclosure of the program has already caused ripples in the legal system, with a judge resigning in protest from the Foreign Intelligence Surveillance Court last week. The secret court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, is seeking a briefing from the Bush administration on why it bypassed the court and ordered eavesdropping without warrants.
At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. But they acknowledge facing legal hurdles, including the fact that many defendants accepted plea deals and waived some rights to appeal.
Government officials, in defending the value of the surveillance program, have said in interviews that it played a critical part in at least two cases that led to the convictions of al Qaeda associates -- Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, N.Y., who was implicated in a failed plot to use fertilizer bombs against British targets.
David Smith, a lawyer for Faris, said he plans to file a motion in part to determine whether information about the program should have been turned over in the criminal case.
Government officials with knowledge of the program have not ruled out the possibility that it was used in other criminal cases, and a number of defense lawyers said in interviews that circumstantial evidence has led them to question whether the National Security Agency identified their clients through wiretaps.
In a Virginia case, Edward MacMahon Jr., a lawyer for Ali al-Timimi, a Muslim scholar in Alexandria who is serving a life sentence for inciting his followers to wage war against the United States overseas, said the government's explanation of how it came to suspect al-Timimi of terrorism ties never added up to him.
FBI agents were at al-Timimi's door days after the Sept. 11 attacks to question him about possible terror links, MacMahon said, yet the government did not obtain a warrant through the foreign intelligence court to eavesdrop on his conversations until many months later.
MacMahon said he was so skeptical about the timing of the investigation that he questioned the Justice Department about whether some sort of unknown wiretap operation had been conducted on the scholar or his young followers, who were tied to what prosecutors described as a "Virginia jihad" cell.
"They told me there was no other surveillance," MacMahon said. "But the fact is that the case against a lot of these guys just came out of nowhere because they were really nobodies, and it makes you wonder whether they were being tapped."
This article appeared on page A - 3 of the San Francisco Chronicle