Defense Lawyers in Terrorism Cases to Challenge NSA Wiretaps

By Daveed Gartenstein-Ross

The December 28 New York Times has an interesting article that adds a new wrinkle to the NSA wiretap controversy:  Defense lawyers in some of the most important terrorism cases in the country are going to argue that the NSA used illegal wiretaps against their clients.  The Times reports:

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.  The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, 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 first challenge to the NSA wiretaps is likely to come in Florida as early as next week.  The lawyers for two men charged with Jose Padilla are planning to file a motion "to determine if the N.S.A. program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda."  And the Times reports that there may also be challenges to the convictions of Ali al-Timimi and some of his followers:

In a Virginia case, Edward B. MacMahon Jr., a lawyer for Ali al-Timimi, a Muslim scholar in Alexandria who is serving a life sentence for inciting his young followers to wage war against the United States overseas, said the government's explanation of how it came to suspect Mr. Timimi of terrorism ties never added up in his view.  F.B.I. agents were at Mr. Timimi's door days after the Sept. 11 attacks to question him about possible links to terrorism, Mr. MacMahon said, yet the government did not obtain a warrant through the foreign intelligence court to eavesdrop on his conversations until many months later.  Mr. 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. . . .  John Zwerling, a lawyer for one of Mr. Timimi's followers, Seifullah Chapman, who is serving a 65-year sentence in federal prison in the case, said he and lawyers for two of the other defendants in the case planned to send a letter to the Justice Department to find out if N.S.A. wiretaps were used against their clients.  If the Justice Department declines to give an answer, Mr. Zwerling said, they plan to file a motion in court demanding access to the information.

A federal prosecutor, speaking to the Times anonymously, stated:  "If I'm a defense attorney, the first thing I'm going to say in court is, 'This was an illegal wiretap.'"  And from the account in the Times, it seems that a large number of defense attorneys -- including in cases that were believed to have been resolved in the government's favor -- are going to say just that.  Thus, this latest development adds greater urgency to the question of the NSA wiretaps' legality.

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