Terror Defendant Seeks Hearing To Find Whether He Was Spied On

By Jerry Markon
Washington Post Staff Writer
Tuesday, January 10, 2006

Attorneys for a prominent Muslim spiritual leader convicted on terrorism charges told a federal appeals court yesterday that they believe he was a target of President Bush's warrantless eavesdropping program and that they want a hearing to explore the matter.

The filing with the U.S. Court of Appeals for the 4th Circuit by Ali Al-Timimi was among the first legal attacks on the controversial wiretapping initiative since it was disclosed several weeks ago. Lawyers in other terrorism cases said yesterday that they expect to file further challenges in coming weeks.

Timimi's brief offered no evidence that his telephone calls or e-mails were intercepted as part of the surveillance operation, under which the National Security Agency began listening to phone calls of suspected al Qaeda contacts in the United States in the fall of 2001. But the brief argued that the well-known Islamic scholar was a likely candidate for surveillance because he frequently made overseas phone calls and prosecutors tried to link him to al Qaeda during his trial last year in U.S. District Court in Alexandria.

If Timimi was wiretapped without a warrant, his attorneys argued, that would be illegal and a violation of his constitutional rights. Any material gleaned from the intercepts should have been turned over to the defense, they said.

"The failure of the government to disclose the existence of material evidence in a federal trial makes the entire proceeding a pretense of the legal process," Timimi's attorney Jonathan Turley said in an interview.

Federal prosecutors in Alexandria declined to say yesterday whether Timimi was the subject of a warrantless wiretap or how they would respond to the defense motion. "The government has provided all the information and material to the defendant in this case that is required by law,'' said First Assistant U.S. Attorney Kenneth E. Melson.

Timimi's attorneys yesterday asked the 4th Circuit to halt the pending schedule for briefs to be filed in their client's appeal of his conviction. They said that if that request is granted, they will file another motion asking the court to send the case for a hearing before U.S. District Judge Leonie M. Brinkema in Alexandria.

Legal experts said the filing could spell trouble for the government if it turns out that Timimi -- a U.S. citizen who was convicted of inciting his Northern Virginia followers to train for violent jihad against the United States and sentenced to life in prison -- was in fact part of the secret wiretap program.

Suzanne Spaulding, a former CIA assistant general counsel, said she doubted that material obtained from warrantless eavesdropping would have been introduced at Timimi's trial. But she said it could have been used to aid the investigation or to obtain warrants from the special Foreign Intelligence Surveillance Court to wiretap Timimi.

"Even if it wasn't directly part of the prosecution's case, it seems to me that if it was gathered illegally in violation of law, that taints everything that was built upon it and therefore there would be legal grounds for a court to review it,'' she said.

Andrew McBride, a former federal prosecutor who has argued numerous cases before the 4th Circuit, said it would be a "dead-bang violation" of federal rules if the government possessed recordings of Timimi and withheld them from the defense. He said the 4th Circuit probably would send the matter back to Alexandria for a hearing, which could become a broad test of a defendant's constitutional rights pitted against the president's authority to fight terrorism.

Bush has argued that the eavesdropping is necessary to protect Americans and is legal under the broad presidential powers in the Constitution and under a congressional resolution passed after the Sept. 11, 2001, terrorist attacks authorizing the president to use military force to fight terrorism.

But the furor about the wiretapping continued yesterday as a group of 14 constitutional law experts and former government officials -- including William Sessions, a former FBI director and U.S. District Court judge -- sent a letter to Congress arguing that Bush ordered the spying by the National Security Agency without "any plausible legal authority."

The group contends that Bush does not have limitless powers as commander in chief and that in a democracy, "the president cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."

Members of the surveillance court, which was created by Congress in 1978 to consider surveillance warrants in espionage and terrorism cases, have also expressed serious misgivings about the wiretap program.

Nine of the sitting judges yesterday received a classified briefing on the initiative, administration officials said.

Yesterday's session came after some judges questioned whether any information gleaned from intercepts by the National Security Agency was later used to gain their permission for wiretaps without the source being disclosed.

Staff writers Carol D. Leonnig and Dan Eggen contributed to this report.

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