NY: SECRECY REMAINS MAJOR ISSUE IN MOSQUE CASE
MICHAEL VIRTANEN, Associated Press, 3/2/06
ALBANY, N.Y. -- Almost 18 months after two members of an Albany mosque
were arrested in an FBI anti-terrorism sting, the issue of federal
secrecy remains unresolved, further complicated by recent allegations
that warrantless wiretaps were used to gather evidence.
U.S. District Judge Thomas McAvoy scheduled a hearing March 24 in
Binghamton on pretrial motions, including bail reconsideration for
Muslim cleric Yassin Aref and the Justice Department's reply on the
use of wiretaps.
"The interesting first question is: Did you conduct warrantless
wiretaps? If the answer to that is no, it's over," said Kevin
Luibrand, attorney for co-defendant Mohammed Hossain. "It's a very
easy question to answer to get us off this hump. That's why I think
the answer is yes."
Aref and Hossain are accused of laundering money in 2003-2004 for an
FBI informant, a Pakistani businessman posing as an arms dealer.
Neither is accused of actual violence.
Defense attorneys want the charges thrown out, or at least any
evidence obtained from phone taps without court warrants, arguing that
would have violated their clients' constitutional rights against
The National Security Agency's warrantless wiretap program was
disclosed publicly Dec. 16 by The New York Times. President Bush and
Attorney General Alberto Gonzales have defended it as necessary
eavesdropping on incoming calls from suspected terrorists abroad
beginning sometime after the Sept. 11, 2001 terrorist attacks. They
have declined to disclose any details.
Assistant U.S. Attorney William Pericek said he has forwarded the
Albany wiretap query to the Justice Department Counterterrorism
Section and the deputy attorney general. In a letter to the judge last
month, Pericek cited "the novelty of the issue," which has been raised
in other cases, and the need to coordinate with other agencies. He
requested a two-week delay, promising a reply by March 10.
The New York Civil Liberties Union asked to participate, saying it has
been involved "in a number of cases ... presenting questions about the
lawfulness of extraordinary measures taken by the federal government
in the aftermath of 9/11." Acknowledging it opposes the warrantless
wiretap program, the NYCLU said its expertise can help sort out the
complex legal issues.
In a brief Wednesday, Pericek argued the NYCLU filed too late and has
nothing different to offer from the defense lawyers.
Meanwhile, prosecutors have repeatedly invoked the Classified
Information Procedures Act in asking McAvoy to shield certain
documents, saying disclosure would compromise national security.
Defense attorneys Luibrand and Terence Kindlon say they, too, have
been kept in the dark, even though both are U.S. military veterans and
have security clearances.
Prosecutors say all pertinent evidence will be in the record, that the
case was a sting where suspects agreed to participate in a crime, and
authorities are merely shielding sensitive background that led to the
Prosecutors recently got another extension until March 16 to file more
sealed documents with the judge arguing against disclosures.
Bail was revoked in the fall for Aref, 35, imam of Masjid as-Salam in
Albany. Co-defendant Hossain, 50, an Albany pizzeria owner and mosque
member, remains free on bond. They have denied charges they conspired
to provide support to Jaish-e-Mohammed, a Pakistan-based group listed
by the federal government as a terrorist organization.
U.S. Magistrate Judge David Homer concluded Sept. 30, in revoking his
bail, that Aref "espouses and has adopted the goals of terrorist
organizations." That was when prosecutors presented Aref's diary
entries from 1999, shortly before he reached the U.S. as a refugee
from the Kurdish region of northern Iraq.
Kindlon argued that prosecutors "artfully" created that false
impression with diary excerpts that recorded the views of some people
Aref had met while working for the political group Islamic Movement in
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