From New York Times , August 26, 2007
Spying Program May Be Tested by Terror Case
By ADAM LIPTAK
Published: Sunday, August 26, 2007
New York Times
ALBANY, Aug. 22 -- After a bloody raid by American military forces on an enemy camp in Rawah, Iraq, on June 11, 2003, a Defense Department report took inventory. Eighty suspected terrorists killed. An enormous weapons cache recovered. And, in what the report called "pocket litter," a notebook with the name and phone number of the imam of a mosque halfway around the world, here in the state capital.
Prompted by that notebook and records of 14 phone calls between the imam, Yassin M. Aref, and Damascus, Syria, the Federal Bureau of Investigation quickly began a sting operation aimed at Mr. Aref. Federal agents used an informant with a long history of fraud who spun tales to Mr. Aref about a fictitious plot involving shoulder-launched missiles and the assassination of a Pakistani diplomat in New York.
Mr. Aref and a friend who owned a pizzeria were convicted of supporting terrorism by agreeing to help launder money for the fake operation, and in March the two men were sentenced to 15 years in prison.
But their case seems far from over, and it has become a centerpiece in the effort to challenge one of the Bush administration's signature espionage programs.
Lawyers for Mr. Aref say they have proof that he was subjected to illegal surveillance by the National Security Agency, pointing to a classified order from the trial judge, unusual testimony from an F.B.I. agent and court documents concerning the calls to Syria.
If they are right, the case may represent the best chance for an appellate ruling about the legality of the N.S.A. program, which monitored the international communications of people in the United States without court approval. Unlike earlier and pending appeals disputing the program, all of them in civil cases, Mr. Aref's challenge can draw on the constitutional protections available to criminal defendants.
In the civil cases, appeals courts have confronted significant threshold questions, including whether the plaintiffs have standing to sue.
"There are dodges available in civil cases that just aren't available in criminal cases," said Corey Stoughton, a lawyer with the New York Civil Liberties Union, which has filed supporting briefs in the case. "This case might be able to put this issue to the test."
In a brief filed this month, Mr. Aref's lawyers urged the federal appeals court in New York to rule that the program was unlawful and to reverse the convictions.
Last month, the federal appeals court in Cincinnati dismissed one appeal challenging the N.S.A. program, ruling that the plaintiffs did not have standing to sue, and the federal appeals court in San Francisco heard arguments in appeals from two other challenges this month.
The wiretapping program was disclosed by The New York Times in December 2005. The next month, The Times reported that officials had cited the arrests of Mr. Aref and the pizzeria owner, Mohammed M. Hossain, as one of the relatively rare instances in which domestic surveillance by the N.S.A. had played a role in a criminal case.
The case is significant in a second way, as a vivid illustration of a new form of pre-emptive law enforcement intended to stop terrorism before it happens, even at the expense of charges of entrapment.
"The Federal Bureau of Investigation has an obligation to use all available investigative tools," prosecutors wrote in a brief urging the court to impose harsh sentences in February, "including a sting operation, to remove those ready and willing to help terrorists from our streets."
The lead prosecutor, William C. Pericak, an assistant United States attorney, said the sting had worked perfectly.
"You can't put a percentage on how likely these guys would have been to commit an act of terrorism," Mr. Pericak said in an interview in his office at the federal courthouse here. "But if a terrorist came to Albany, my opinion is that these guys would have assisted 100 percent."
Terence L. Kindlon, a lawyer for Mr. Aref, saw the matter differently.
"The F.B.I. case was a hoax that grew out of the Bush administration's misuse of fear to turn our democracy into a dictatorship," Mr. Kindlon said.
Before the trial, Mr. Aref's lawyers asked the government for information about the N.S.A. surveillance reported in The Times. In March 2006, the government responded to one request with a classified filing that the defense lawyers, who had security clearances, were not allowed to see. That same day, Judge Thomas J. McAvoy denied the defense request in a classified order.
The New York Civil Liberties Union and more than a dozen news organizations, including The New York Times, have filed supporting briefs in the appeals court objecting to the classified judicial decision.
"For a court to issue an opinion in which every word of its reasoning is sealed is unprecedented," said Ms. Stoughton, the civil liberties group lawyer. "It's an invitation to abuse."
Mr. Pericak would not discuss the classified filings in the case.
Mr. Aref's lawyers also rely on a curious exchange with Special Agent Timothy Coll of the F.B.I., who was asked during his cross-examination whether Mr. Aref had been under 24-hour surveillance.
Mr. Pericak objected. "I'm concerned that a truthful answer should implicate classified information," he said.
Mr. Aref's lawyer, Kent B. Sprotbery, rephrased the question, asking instead about 24-hour physical surveillance, implicitly leaving out electronic eavesdropping. To that question Mr. Coll answered no.
To set up the sting against the two men, the F.B.I. turned to a Pakistani immigrant, Shahed Hussain, an accomplished criminal who took as many as 100 driver's license examinations on behalf of people with poor English skills.
No one disputes that Mr. Hussain's goal was to approach Mr. Aref, the imam named in the Rawah notebook. But he had no direct way to do that, so he worked through Mr. Hossain, a naturalized American citizen from Bangladesh who owned the Little Italy pizzeria, a modest, run-down place on Central Avenue.
Most of the conversations between the informant and his targets were recorded, and many were videotaped. They took place in fits and starts, in English, Arabic and Urdu. There were code words, odd pronunciations and misunderstandings.
But there was enough for the jury to conclude that Mr. Hossain understood from early on that the informant was talking about money laundering that would support terrorism and would leave Mr. Hossain $5,000 richer.
At his sentencing, Mr. Hossain said he was mystified by what had happened to him.
"I am just a pizza man," he said. "I make good pizza."
Over time, Mr. Aref was drawn into the fictional plot, asked to serve as a witness to the transactions, a role the government acknowledged was recognized by Islamic tradition. He was not paid.
Mr. Aref is a refugee from the Kurdish region of Iraq. After Saddam Hussein's attacks on the Kurds and the first gulf war, Mr. Aref and his family fled to Syria and then the United States, arriving in Albany in 1999.
His supporters said that his name in a notebook proved nothing and that the Rawah camp was a haven for refugees with no ties to terrorism. In court papers, prosecutors said the notebook was one of many reasons to focus on Mr. Aref.
At the Little Italy pizzeria, where Mr. Hossain first met the informant, his wife, Fatima, carries on without him. Wearing a face veil that showed only her brown eyes, Ms. Hossain recalled ruefully the toy helicopters the informant gave her children to ingratiate himself.
Of Mr. Hussain, the informant, she said, "I don't think a human can make for another human that kind of trouble."
Near the end of the trial last year, Judge McAvoy told the jury, "The F.B.I. had certain suspicions, good and valid suspicions, for looking into Mr. Aref, but why they did that is not to be any concern of yours."
In their appeals, both defendants said that statement, which referred to the Rawah notebook and the calls to Syria, had prejudiced the jury against them.