December 28, 2005
Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts
By ERIC LICHTBLAU and JAMES RISEN
WASHINGTON, Dec. 27 - 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.
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
The question of whether the N.S.A. program was used in criminal prosecutions
and whether it improperly influenced them raises "fascinating and difficult
questions," said Carl W. 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," Professor
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 said President Bush did not have authority to order eavesdropping by
the security agency without warrants, the White House and the Justice
Department continued on Tuesday to defend the legality and propriety of the
Trent Duffy, a spokesman for the White House, declined to comment in
Crawford, Tex., when asked about a report in The New York Times that the
security agency had tapped into some of the country's main telephone
arteries to conduct broader data-mining operations in the search for
But Mr. Duffy said: "This is a limited program. This is not about monitoring
phone calls designed to arrange Little League practice or what to bring to a
potluck dinner. These are designed to monitor calls from very bad people to
very bad people who have a history of blowing up commuter trains, weddings
He added: "The president believes that he has the authority - and he does -
under the Constitution to do this limited program. The Congress has been
briefed. It is fully in line with the Constitution and also protecting
American civil liberties."
Disclosure of the N.S.A. program has already caused ripples in the legal
system, with a judge resigning in protest from the Foreign Intelligence
Surveillance Court last week. The surveillance court, established by
Congress in 1978 to grant warrants in terrorism and espionage cases, wants 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 N.S.A. program
on behalf of their clients, many of them American citizens, and to find out
more about how it might have been used. They acknowledge legal hurdles,
including the fact that many defendants waived some rights to appeal as part
of their plea deals.
Government officials, in defending the value of the security agency's
surveillance program, have said in interviews that it played a critical part
in at least two cases that led to the convictions of 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, who was implicated in
a failed plot to bomb British targets.
David B. Smith, a lawyer for Mr. Faris, said he planned to file a motion in
part to determine whether information about the surveillance program should
have been turned over. Lawyers said they were also considering a civil case
against the president, saying that Mr. Faris was the target of an illegal
wiretap ordered by Mr. Bush. A lawyer for Mr. Babar declined to comment.
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 had led them
to question whether the security agency identified their clients through
The first challenge is likely to come in Florida, where lawyers for two men
charged with Jose Padilla, who is jailed as an enemy combatant, plan to file
a motion as early as next week to determine if the N.S.A. program was used
to gain incriminating information on their clients and their suspected ties
to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think
they absolutely have an obligation to tell us" whether the agency was
wiretapping the defendants. 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.
"They told me there was no other surveillance," Mr. 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
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.
"We want to know, Did this N.S.A. program make its way into our case, and
how was it used?" Mr. Zwerling said. "It may be a difficult trail for us in
court, but we're going to go down it as far as we can."
Defense lawyers in several other high-profile terrorism prosecutions,
including the so-called Portland Seven and Lackawanna Six cases, said they
were also planning to file legal challenges or were reviewing their options.
"Given what information has come out, with the president admitting that they
had avoided the courts, then the question becomes, do you try to learn
whether something like that happened in this case?" said Patrick Brown, a
Buffalo lawyer in the Lackawanna case. "I would have to talk to my client
about whether that's a road we want to go down."
Gerry Spence, who is the lead counsel representing Brandon Mayfield, a
Portland lawyer who was arrested in error last year in connection with the
Madrid bombings and is now suing the government, said of the security agency
program: "We are going to look into that. The calmest word I can use to
describe how I feel about this is that I am aghast."
Because the program was so highly classified, government officials say,
prosecutors who handled terrorism cases apparently did not know of the
program's existence. Any information they received, the officials say, was
probably carefully shielded to protect the true source.
But defense lawyers say they are eager to find out whether prosecutors -
intentionally or not - misled the courts about the origins of their
investigations and whether the government may have held on to N.S.A.
wiretaps that could point to their clients' innocence.
Stanley Cohen, a New York lawyer who represented Patrice Lumumba Ford in the
Portland Seven case, said many defendants would face significant obstacles
in mounting legal challenges to force the government to reveal whether
material obtained through the security agency's program was used in their
"You really could have standing problems" for many of the defendants, Mr.
But some Justice Department prosecutors, speaking on condition of anonymity
because the program remains classified, said they were concerned that the
agency's wiretaps without warrants could create problems for the department
in terrorism prosecutions both past and future.
"If I'm a defense attorney," one prosecutor said, "the first thing I'm going
to say in court is, 'This was an illegal wiretap.' "