From USA Today, posted May 21, 2006
Government keeps info from defense lawyers in terror cases
Posted 5/21/2006 10:50 PM ET
By Kevin Johnson, USA TODAY
WASHINGTON — Government lawyers are refusing to allow defense attorneys in terrorism-related cases to see court filings on whether warrantless surveillance was used to obtain information against their clients, defense attorneys said.
The legal disputes represent a new obstacle for defense attorneys in terrorism cases as the legality of the National Security Agency's surveillance programs is challenged in U.S. courtrooms.
In a New York case, attorney Terence Kindlon represents an Albany mosque leader charged with laundering money in a conspiracy to help terrorists. Kindlon said he has been blocked from reviewing the government's court papers even though he maintains a security clearance that allows him to handle classified matters related to his client's defense.
In Virginia, attorney David Smith is challenging the government's investigative techniques in the case of convicted terrorist Iyman Faris.
Faris pleaded guilty three years ago in connection with a plot to destroy the Brooklyn Bridge. His name surfaced in initial reports about the government's warrantless surveillance program published by The New York Times. In this program, the NSA eavesdrops on international calls in the USA when one of the people on the phone is suspected of having links to terrorist groups.
In the Times' reports, government officials credited the NSA's program for assisting in the investigation of Faris, who is serving a 20-year prison sentence.
Smith is seeking a hearing that would provide his client access to both the government's investigative techniques and court papers filed under seal that now can be reviewed only by the presiding judge in the case.
The Justice Department declined to comment on the NSA-related challenges.
This month, USA TODAY reported that the NSA had amassed an enormous database of domestic telephone records to assist in anti-terrorism efforts. The NSA's collection of phone records outlined by the newspaper does not involve the interception or wire-tapping of actual calls, which are at the center of the New York and Virginia legal challenges.
Smith estimated that there were about a half-dozen disputes throughout the country involving issues similar to the Faris case.
In Oregon, the issue of secret government filings emerged in a lawsuit filed by Al-Haramain, an Islamic charity.
Late last month, a federal judge rejected the government's effort to use secret court filings that would have effectively blocked Al-Haramain's attorneys from reviewing key issues in the matter.
Al-Haramain's attorneys could not be reached for comment.
U.S. District Judge Garr King said the charity "has a right to know the legal and factual positions being taken by the government so they can respond to them," according to a transcript of a court telephone conference obtained by The Oregonian, a Portland newspaper. The Oregonian reported on the government's reliance on the secret filings late last month.
In the New York case, Kindlon said he has been repeatedly denied access to the government's filing in a challenge he is waging on behalf of Yassin Aref.
Aref is accused in a conspiracy to provide assistance to terrorists. Aref and another defendant are charged with laundering thousands of dollars used to purchase a shoulder-fired rocket.
Kindlon said he became suspicious about the government's possible use of surveillance without court warrants in Aref's case when prosecutors said they were drawn to the defendant after Aref's name and telephone number were discovered on a piece of paper recovered from a terrorism suspect in northern Iraq.
"That just sounded like bull to me," said the attorney, who has been unable to view the government's response to his challenge regarding the alleged use of surveillance without warrants.
"I really don't know what's going to happen," Kindlon said. "I'm ready to throw myself off a building at this point."