Government Secrecy May Lead to New Trial In Va. Terrorism Case

By Jerry Markon
Washington Post Staff Writer
Wednesday, November 21, 2007

A federal judge criticized the government's secrecy yesterday in the case of a prominent Muslim spiritual leader from Fairfax County who was convicted on terrorism charges, and she threatened to grant a new trial if the government doesn't share information about the Bush administration's terrorist surveillance program.

U.S. District Judge Leonie M. Brinkema in Alexandria said her skepticism in the case of Ali al-Timimi stems from government misinformation in another major terrorism prosecution: that of convicted Sept. 11 conspirator Zacarias Moussaoui. Federal prosecutors recently revealed that the CIA had told Brinkema that the interrogations of enemy combatant witnesses in Moussaoui's trial had not been audiotaped or videotaped, when they had. The judge called the factual error "a mess" yesterday but indicated it probably would not affect Moussaoui's guilty plea or life prison term.

Timimi, a U.S. citizen who was convicted in 2005 of inciting his Northern Virginia followers to train for violent jihad against the United States and was sentenced to life in prison, is using the government's now-defunct warrantless surveillance program to challenge his conviction. His attorneys argue that the Islamic scholar was a likely candidate for surveillance and that if he was wiretapped, that would have violated his constitutional rights.

The U.S. Court of Appeals for the 4th Circuit sent the case back to Brinkema last year after Timimi's attorneys raised the wiretapping argument. That led to a flurry of secret litigation. Yesterday, at a rare open hearing in the case, Brinkema said it was "ludicrous" that even prosecutors had not been allowed to see a series of filings that the intelligence community submitted to the judge.

"I am no longer willing to work under the circumstances where both the prosecuting team and defense counsel are not getting any kind of access to these materials," Brinkema said, according to a transcript of the hearing. "Frankly, if I can't get some flexibility on the government's part, then I'm going to be inclined to grant a motion for a new trial."

Late yesterday, the judge ordered that prosecutors, the lead defense counsel and her law clerk receive sufficient security clearances to examine at least some of the secret filings.

Jonathan Turley, Timimi's lead defense attorney, said he was "very pleased" by Brinkema's order. He said the government's secrecy had created "a virtual private conversation between the court and unnamed counsel for unnamed government agencies."

Federal prosecutors in Alexandria declined to comment yesterday, as did the National Security Agency, which administered the controversial warrantless surveillance program and sent a lawyer to yesterday's hearing. Under the program, which is the subject of about 50 challenges in federal courts, the NSA monitored communications between people in the United States and others overseas without warrants if one of the targets was believed to be linked to al-Qaeda.

The government has not said whether Timimi was the subject of a warrantless wiretap, and defense attorneys have offered no evidence that he was. Brinkema did not indicate yesterday whether the defense argument had merit. But she expressed annoyance at secrecy in both the Timimi and Moussaoui cases, indicating that she blamed the intelligence community rather than prosecutors.

"I am sorry to have to say this, but I have lost a great deal of confidence in the representations made to me by folks in the intelligence world, and I'm responding, frankly, to something that happened not in this case, but in the Moussaoui case," the judge said. The existence of videotapes or audiotapes of some enemy combatant witnesses was revealed in an Oct. 25 letter prosecutors sent to Brinkema and the 4th Circuit, which was made public Nov. 9.

George Little, a CIA spokesman, said in a statement yesterday that the agency "recognizes the importance of its obligations to the court. In the Moussaoui case, it was the CIA that found the material and brought the matter to the attention of the Department of Justice."

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