Lawyers wonder if secret program spied on clients

Toni Locy Associated Press Dec. 29, 2005 12:00 AM

WASHINGTON - Lawyers for an Islamic scholar, a Fort Lauderdale computer programmer and an Ohio trucker want federal judges to determine whether evidence used against their clients was gathered by a secret domestic spying program.

Jonathan Turley, a George Washington University law professor, said Wednesday that there "seems to be a great likelihood" that Ali al-Timimi, a northern Virginia Islamic cleric convicted for exhorting followers after the Sept. 11 attacks to wage war against U.S. troops overseas, was "subject to this operation."

Attorney Kenneth Swartz of Miami also said he wants to know whether any evidence was gathered by the National Security Agency without a warrant and used to persuade a secret court to authorize six years of wiretaps of his client, Adham Amin Hassoun.

Late Wednesday, attorney David Smith said he also will incorporate the NSA wiretaps into his appeal on behalf of Iyman Faris, a truck driver convicted of plotting to destroy the Brooklyn Bridge. At his sentencing hearing, prosecutors acknowledged that federal agents were led to Faris by a telephone call intercepted in another investigation.

Last month, Hassoun and Jose Padilla, a U.S. citizen held for nearly four years as an "enemy combatant," were charged with raising money to support violent Islamic fighters outside the United States.

President Bush has acknowledged that within days of the Sept. 11 attacks he authorized the NSA to conduct warrantless intercepts of conversations between people in the United States and others abroad who had suspected ties to al-Qaida or its affiliates.

In doing so, the administration bypassed the nearly 30-year-old secret Foreign Intelligence Surveillance Act court established to oversee the government's handling of espionage and terrorism investigations.

Turley already has appealed the case to the Richmond-based 4th U.S. Circuit Court of Appeals, asking that Timimi's conviction and life sentence be overturned. Turley argued that the prosecution was a violation of Timimi's free speech rights. His conviction was based on statements he made at a dinner days after the Sept. 11 attacks at which he urged several young Muslim men to join the Taliban and fight U.S. troops overseas.

Timimi's lawyer said he recently has contacted federal prosecutors in Alexandria, Va., seeking their cooperation in asking the appeals court to return the case to U.S. District Judge Leonie Brinkema.

Brinkema could determine whether NSA-gathered evidence was used against Timimi without the court being told, Turley said. She also could press the government to reveal whether it withheld evidence gathered by the NSA that could have helped Timimi's defense, he said.

If prosecutors decline to go along, Turley said, he will file a request next week asking the appeals court to send the case back to Brinkema.

Prosecutors probably did not know about the domestic spying program, Turley said.

In Hassoun's case, the FISA court was not bypassed. The secret court approved wiretaps of Hassoun from 1994 to 2000, Swartz said.

Before the NSA spying program's existence was revealed, Swartz said, he had planned to challenge the legality of the FISA wiretaps. He said his challenge also will ask a federal judge in Miami to determine whether the FISA court was misled with evidence that it had not been told had been gathered secretly by the NSA.