Packing Heat
The White House defends its warrantless spying program, but a small army of lawyers is gunning to shoot it down
Delayed. A few of the challenges are being especially closely watched. Last Thanksgiving, a federal jury in Virginia convicted a young American Muslim and alleged al Qaeda member named Ahmed Omar Abu Ali of nine counts of plotting to assassinate President Bush. Now his attorney, Khurrum Wahed, has filed a motion to postpone Abu Ali's sentencing proceedings. "Our question," says Wahed, "is, how broad was this program?" U.S. District Judge Gerald Bruce Lee has granted Wahed's request to delay sentencing, and he ordered prosecutors to present a sworn declaration from the government by Thursday as to whether warrantless surveillance was used and if so, under what "specific constitutional or statutory authority."
Defense lawyers are also tracking the case of Ali al-Timimi with interest because it's in one of the nation's most conservative appeals courts, the U.S. Fourth Circuit Court of Appeals, in Richmond, Va. Al-Timimi is an American biologist and Islamic scholar, convicted last April of inciting young men who had formed the so-called Virginia Jihad Network to join the Taliban and fight against coalition troops in Afghanistan. He was sentenced to life in prison, with no prospect of parole. His attorney, Jonathan Turley, persuaded the Fourth Circuit to freeze al-Timimi's appeals proceedings. The Justice Department was expected to notify the court early this week that it does not oppose Turley's motion to remand the case to the lower court to determine if the government wiretapped al-Timimi without a warrant and if it failed to disclose potentially exculpatory wiretaps. "There was at trial great suspicion that other intercepts existed," says Turley. "The government repeatedly denied that."
In Albany, an FBI sting case has also taken a legal detour. The case involves an Iraqi-born Islamic scholar named Yassin Aref and his codefendant Mohammed Hossain--both members of an Albany mosque--who were accused of conspiring to sell missile launchers to terrorists. The trial is scheduled for next year. Aref's attorney, Terence Kindlon, wants the court to suppress any NSA-obtained evidence and dismiss the indictment. At the time of their arrest, the government stated that it had targeted Aref and Hossain after coalition forces found "pocket litter" with their names in a destroyed western Iraqi encampment. "The explanation for why they took an interest in him," says Kindlon, "has always been suspect to me."
The government has two weeks to respond to Kindlon's motions, which he says were inspired by a popular liberal criminal defense website, www.talkleft.com, created by Denver, Colo., defense attorney Jeralyn Merritt--one of Oklahoma bomber Timothy McVeigh's principal trial lawyers. Now others, like Chicago public defender Mary Judge, are learning from Kindlon. Judge wrote a letter in January to federal prosecutors seeking to find out if NSA surveillance was used against her client, Sami Latchin, who is being held under house arrest in Des Plaines, Ill., for allegedly being an Iraqi sleeper agent for Saddam Hussein. Initially, there was no response. Then Judge wrote another letter saying she'd appreciate a reply even if was "simply, that you refuse to respond to the inquiries." Judge's wish was granted, more or less. The U.S. attorney in Chicago, Patrick Fitzgerald, responded with a crisp one-sentence note, stating that he would have no response at this time.
With With Jill Konieczko and Carol Hook
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