Va. Terror Case Sent Back to Lower Court

By Jerry Markon
Washington Post Staff Writer
Wednesday, April 26, 2006

The case of a prominent Muslim spiritual leader convicted on terrorism charges was returned to a federal judge in Alexandria yesterday after his attorneys told an appeals court that they believe the man was a target of President Bush's warrantless eavesdropping program.

The U.S. Court of Appeals for the 4th Circuit in Richmond said it sent the case back in part because attorneys for Ali Al-Timimi have raised concerns that the government has "undisclosed intercepts" related to the controversial National Security Agency program. A three-judge panel said the lower court may take up the NSA issue "and order whatever relief or changes in the case, if any, that it considers appropriate."

But the brief order did not spell out what steps U.S. District Judge Leonie M. Brinkema might take. Timimi's attorney Jonathan Turley said he hopes Brinkema will hold public hearings that will explore the NSA program and whether his client was wiretapped without a warrant. If Timimi was, Turley argued, that would be a violation of his rights that could void the conviction.

The appellate court's order refocuses attention on the controversy surrounding the surveillance operation, under which the NSA has monitored perhaps thousands of phone calls and e-mails involving U.S. residents and foreign parties without obtaining warrants from a secret court that handles such matters. Bush has argued that the program is legal and necessary to protect Americans from terrorists.

Legal experts said the order's significance remains to be seen, noting that it is unclear whether Brinkema will order hearings -- and if she does, those sessions could be shielded from public view because of the sensitive information involved.

Kate Martin, director of the Center for National Security Studies in Washington, said the order "is a recognition by the 4th Circuit that on its face, the fact of NSA surveillance might well be important to this case." But she said appellate courts frequently send cases back to lower courts when new facts come to light.

Federal prosecutors had initially opposed returning the case to Brinkema but dropped their opposition for reasons that were unclear yesterday. Prosecutors declined to comment. The 4th Circuit order said the government had emphasized that its "consent to [Timimi's] motion does not reflect its views on the merits of al-Timimi's contentions."

David B. Smith, an attorney for another convicted terrorist who has used the NSA program to challenge his conviction, said the lack of government opposition makes the order less significant. Bush administration officials have fiercely guarded details of the NSA program since it was exposed in media reports last year.

Smith represents Iyman Faris, an Ohio truck driver who pleaded guilty in 2003 in a terrorist plot to attack Washington and New York. Faris has urged Brinkema, also the judge who heard his case, to throw out his plea in part because he was spied on through the NSA program. The judge has not ruled.

Faris is one of a number of terrorism defendants who have challenged the NSA program in court in recent months and argued that it was improperly used in their cases.

Timimi is a U.S. citizen who was convicted last year of inciting his Northern Virginia followers to train for violent jihad against the United States. He was sentenced to life in prison. Timimi's attorneys had begun the process of appealing his conviction but filed a motion to return the case to Brinkema this year.

The government has not said publicly whether Timimi was subject to the NSA program. But Turley believes that he was, arguing that Timimi often made the type of overseas phone calls that were wiretapped and that "there was considerable overlap in the dates and details of the investigation of al-Timimi and the NSA operation."

In addition, Turley said, the government revealed in an unrelated case that a key figure in Timimi's trial, Suliman al-Buthe, was secretly monitored by the NSA. Jurors heard testimony at Timimi's trial that Timimi had discussed his views celebrating the 2003 crash of the space shuttle Columbia in a phone conversation with al-Buthe. "We are going to proceed cautiously and give the government every opportunity to answer these questions," Turley said. "I'm hopeful that Judge Brinkema will be just as interested in finding the answers as we are."

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