Spying Cited in Bid To Erase Terror Plea

By Jerry Markon
Washington Post Staff Writer
Saturday, February 4, 2006

An Ohio truck driver who pleaded guilty in a terrorist plot to attack Washington and New York yesterday urged a judge to throw out his plea, in part because he was spied on through President Bush's controversial warrantless eavesdropping program.

Iyman Faris argued that the surveillance violated his rights because it was illegal and that the government therefore could not use it to build a case against him. Faris pleaded guilty in 2003 to plotting with al Qaeda to bring down the Brooklyn Bridge and launch a simultaneous attack in Washington.

A number of terrorism defendants have filed legal challenges to the National Security Agency program in recent weeks, including Ali Al-Timimi, a prominent Muslim spiritual leader convicted of inciting his Northern Virginia followers to train for violent jihad. But Faris is unique because Bush administration officials have acknowledged that he was spied on -- and credited the program with helping to uncover Faris's plot.

"We don't have any hard evidence as to what happened with the NSA and Mr. Faris. All we know is what we read in the papers," Faris's attorney, David B. Smith, said in an interview yesterday. "But assuming he was subject to the NSA program, the whole case could be tainted if the original information that led them to Faris was tainted."

Kenneth E. Melson, first assistant U.S. attorney in Alexandria, where Faris was prosecuted, would not comment on Faris's motion.

Stephen A. Saltzburg, a George Washington University law professor, said the acknowledgment that Faris was spied on might make a judge more likely to hold a hearing to examine the allegations. But he said Faris will have a difficult time getting his plea overturned because defendants give up many of their rights to challenge the evidence against them when they plead guilty. "The problem is that he's [pleaded guilty] and accepted responsibility," Saltzburg said.

Faris's criticism of the NSA program came as part of a motion in which he argued that his plea should be vacated because his previous attorney gave him ineffective counsel. That attorney, J. Frederick Sinclair, "never asked the government whether Faris had been subjected to any form of electronic surveillance," the motion says.

In a filing that accompanied the motion, Faris accuses Sinclair of pressuring him into pleading guilty and failing to investigate his case. He denied that he targeted the Brooklyn Bridge and said he told the FBI that he had because "they were pressuring me and I felt I had to tell them what they wanted to hear. "

Sinclair said yesterday that Faris's allegations are "without merit." He said he could not have known to ask prosecutors about the NSA program because "it's a top-secret thing. Of course, if anybody knew about it or even smelled it, I would have asked for any information that may have resulted in an illegal wiretapping."

Faris, a Kashmiri-born naturalized U.S. citizen, pleaded guilty to providing material support to al Qaeda. Federal officials said he appeared to be a hardworking truck driver but had a secret "double life" that included carrying cash for al Qaeda, providing Osama bin Laden with information about ultralight aircraft and scouting equipment for sabotaging railroad tracks and bridge cables.

Officials said Faris was an al Qaeda scout who had planned with top al Qaeda operative Khalid Sheik Mohammed to sever the cables of the Brooklyn Bridge and to derail trains in or near Washington. Court papers say Faris scouted the Brooklyn Bridge and, after concluding that the plot would fail because of the bridge's security and structure, sent a coded message to al Qaeda that "the weather is too hot."

When he was sentenced to the maximum 20 years in prison, Faris tried to withdraw his guilty plea, saying he had been trying to fool the FBI because he wanted to gather material for a book.

But U.S. District Judge Leonie M. Brinkema rejected the attempt, saying Faris could not admit crimes and then "walk back into this court and say it was all a bunch of lies."

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