December 28, 2005

"The case against a lot of these guys just came out of nowhere because they were really nobodies..."

Will criminal defense lawyers find a way to challenge the administration's domestic surveillance program?
[A] number of defense lawyers said in interviews that circumstantial evidence had led them to question whether the security agency identified their clients through wiretaps.

The first challenge is likely to come in Florida, where lawyers for two men charged with Jose Padilla, who is jailed as an enemy combatant, plan to file a motion as early as next week to determine if the N.S.A. program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think they absolutely have an obligation to tell us" whether the agency was wiretapping the defendants. In a Virginia case, Edward B. MacMahon Jr., a lawyer for Ali al-Timimi, a Muslim scholar in Alexandria who is serving a life sentence for inciting his young followers to wage war against the United States overseas, said the government's explanation of how it came to suspect Mr. Timimi of terrorism ties never added up in his view.

F.B.I. agents were at Mr. Timimi's door days after the Sept. 11 attacks to question him about possible links to terrorism, Mr. MacMahon said, yet the government did not obtain a warrant through the foreign intelligence court to eavesdrop on his conversations until many months later.

Mr. MacMahon said he was so skeptical about the timing of the investigation that he questioned the Justice Department about whether some sort of unknown wiretap operation had been conducted on the scholar or his young followers, who were tied to what prosecutors described as a "Virginia jihad" cell.

"They told me there was no other surveillance," Mr. MacMahon said. "But the fact is that the case against a lot of these guys just came out of nowhere because they were really nobodies, and it makes you wonder whether they were being tapped."...

Because the program was so highly classified, government officials say, prosecutors who handled terrorism cases apparently did not know of the program's existence. Any information they received, the officials say, was probably carefully shielded to protect the true source.

But defense lawyers say they are eager to find out whether prosecutors - intentionally or not - misled the courts about the origins of their investigations and whether the government may have held on to N.S.A. wiretaps that could point to their clients' innocence.
I think if there is to be a lawsuit examining the legality of the surveillance, it will be in this form, not in a suit brought by a member of Congress (who would not have standing to sue).

UPDATE: For analysis of the legal problems facing the defense lawyers and prosecutors, see Jeralyn Merritt and Reddhedd.

12 comments:

Richard Lawrence Cohen said...

When we get attacked, it will come from a bunch of nobodies who come out of nowhere. Is the government only supposed to intercept high-profile, celebrity terrorists?

Bruce Hayden said...

I concur. I see lawsuits by members of Congress being dismissed essentially as lacking substance - there really not being a Case or Controversy. Here, there are arguably personally aggrieved parties, not some hypothetically aggrieved parties. (as a Con Law prof, I am sure you could put this better).

It is still unclear though whether these cases would fall within the claimed NSA warrant exception. Were the cases against them built on tapping phone calls to known Al Qaeda outside the country?

I still see it as a losing proposition for the Democrats pushing this. Here, we apparently have some terrorist fellow travelers who were presumably (or potentially) caught through national security surveilance.

It always comes back to the question of whether we would be better off, as a country, shutting down terrorists, esp. those on our own soil, or should we protect them sufficiently that they can strike us, as did others on 9/11.

Sloanasaurus said...

Why are liberals so concerned over the rights of foreign terrorists?

Perhaps litigation would reveal who leaked the NSA story to the NY Times - The leakers should get the death penalty if they did not have authority to leak the information.

Jacques Cuze said...

Is the government only supposed to intercept high-profile, celebrity terrorists? No one is asking for your strawman. People are calling only for the administration to follow the law.

I still see it as a losing proposition for the Democrats pushing this. You mean Democrats like Arlen Specter, Bob Barr, Orin Kerr, Warren Rudman, David Keene, and Barron's Editorial Editor?

Why are liberals so concerned over the rights of foreign terrorists? Sloany, I wouldn't consider you to be a foreign terrorist. Civil libertarians upset about this issue are concerned about our rights.

Any society that would give up a little liberty to gain a little
security will deserve neither and lose both -- Benjamin Franklin


I am glad all three of you seem to agree that Ben Franklin was a liberal.

Art said...

Several of the 9-11 hijackers were brought to the FBI's attention by perfectly conventional (and legal) means. The FBI chose not to act on that information.

((Yeh, Yeh, fault of the timidity of the Clinton administration and all that.))

Mary said...

"Is the government only supposed to intercept high-profile, celebrity terrorists?"

"It always comes back to the question of whether we would be better off, as a country, shutting down terrorists, esp. those on our own soil, or should we protect them sufficiently that they can strike us, as did others on 9/11."

I disagree with the way you guys are framing the issue here.

If our country has established procedures and rules (laws), we should follow them, even when we are being tested in times of war. Especially then. Even for "nobodies". Slippery slope.

For example, in America we try people in a court of law, instead of just targeting suspects with a smart bomb to take them out. Under different conditions, that might be necessary. But have no fear, we are not there yet. Ditto with getting court authorization for a wiretap.

I have confidence that following our established rules -- or working within the law to change them if necessary where they aren't proving effective -- is going to pay off overall and keep all of us safe.

Making up the rules as we go, or allowing one branch to act unilaterally, is not in our legal or constitutional blueprint. What price "safety"? Think of people like Brandon Mayfield. Do we sacrifice the rights of some citizens to feel safer overall? Would you feel differently if you were an innocent ethnic minority who could be affected, or the member of a special interest non-majority group that was of interest?

Sometimes I think the terrorist are winning in changing our American ways of life, and good people who fear are helping them dismantle what's been built here.

Ross said...

Gosh, maybe now the administration will have to put Padilla back into military custody to avoid trying the issue of the wiretaps.

PatCA said...

Another breathless NYT article about our nefarious government and its plot against its own defenseless people. Unbelievable. My only consolation is that their stock is at a 52-week low. Surely that indicates some degree of healthy skepticism on the public's part.


quxxo, I'd lay low if I were you. I hear they're building camps in Montana for dissenters!

Jacques Cuze said...

The conservative movement as proof of evolution (but not intelligent design)

SHORTER CONSERVATIVE MOVEMENT 1994:

"I'm from the government, and I'm here to help you."

HAW HAW HAW! AW HAW HAW HAW HAW! Thassa good one! Yee-haaa!

SHORTER CONSERVATIVE MOVEMENT 2005:

"I'm from the government, and I'm here to spy on you and perhaps indefinitely detain you without charges."

That sounds reasonable.

P.S. Yes Patca, and I expect to be turned in by brownshirts such as yourself.

PatCA said...

"Brownshirts such as yourself."


Why do you post here if you revile us so?

John(classic) said...

"For example, in America we try people in a court of law, instead of just targeting suspects with a smart bomb to take them out."

Hmm, actually when we are at war, don't we just take them out with a smart bomb?

Is your argument geared to "in America" and you are asserting that the continental U.S. is not a theater of war in this war?

Sloanasaurus said...

I don't see how my rights are affected by the government spying on inbound and outbound calls with connections to terrorism. It is completly ridiculous for liberals to claim that it does. There is no slippery slope argument here.

In fact, I don't see how my rights are affected by the FBI snooping into my library records if they suspect me of terrorism.

It takes some work to become a suspect of terrorism. You have to do things like snoop around public buildings, make radical statements in mosks about how you want to blow up America, hang out with other suspected terrorists, continue living on an expired visa when your from places like Saudi Arabia or Pakistan, travel often to places like afghanistan or as Jose Padillia participate in an Osama Bin Ladin training camp. You may become a suspect if you profess your loyalty to Hamas or Osama Bin Ladin, or if you spend a lot of money acquiring materials such as fertilizer when your not a farmer or acquire parts to make bombs or spend a lot of time on radical islamic websites.

All these things that create suspician... 99.9% of Americans do not do.

If you are involved in these suspicious activites, George W. Bush has the constitutional right and the constitutional obligation to spy on you and especially has the right and obligation when you are making a phone call to a suspected terrorist in a foreign country or receiving a phone call from a suspected terrorist in a foreign country.

If you don't think the president should be monitoring these calls, then you are seriously mentally disturbed or suicidal.

Btw, if the government takes my right away to own a firearm... now that impacts me and 99.9% of the country, who may also want to have the right to buy a firearm. Yet, liberals don't seem to have a problem with taking firearms from law abiding citizens.