Uh huh. And then there's this....why am I not surprised.
http://www.townhall.com/news/ap/onli...D8EPDUQO3.html
Lawyers Question Evidence in Terror Case
Dec 29 2005
By TONI LOCY
Associated Press Writer
WASHINGTON
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.
Jonathan Turley, a George Washington University law professor, said Wednesday there "seems to be a great likelihood" that Ali al-Timimi, a northern Virginia Islamic cleric convicted for exhorting followers after the Sept. 11 attacks to wage war against U.S. troops overseas, was "subject to this operation."
Attorney Kenneth Swartz of Miami also said 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.
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. At his sentencing hearing, prosecutors acknowledged that federal agents were led to Faris by a telephone call intercepted in another investigation.
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.
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. She 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."
In Hassoun's case, the FISA court was not bypassed. The secret court approved wiretaps of Hassoun from 1994 to 2000, Swartz said.
Before the NSA spying program's existence was revealed, Swartz said, he had planned to challenge the legality of the FISA wiretaps. He said his challenge, to be filed in the next week or two, also will ask a federal judge in Miami to determine whether the FISA court was misled with evidence that it had not been told had been gathered secretly by the NSA.
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, said Smith. He said that Faris' trial lawyer never asked prosecutors for information on any wiretaps in the case.
White House spokesman Trent Duffy said Wednesday that the administration would not comment on pending cases. "I don't think it should serve as any surprise that defense attorneys are looking for ways to represent their clients," he said. "That's what defense attorneys do."
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(Associated Press Writer Joe Danborn in Columbus, Ohio, contributed to this report.)
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