Va. Terror Case Sent Back to Lower Court
Appeals Panel Cites Eavesdropping Program
By Jerry Markon
Washington Post Staff Writer
Wednesday, April 26, 2006; A10
The case of a prominent Muslim spiritual leader convicted on terrorism
charges was returned to a federal judge in Alexandria yesterday after
his attorneys told an appeals court that they believe the man was a
target of President Bush's warrantless eavesdropping program.
The U.S. Court of Appeals for the 4th Circuit in Richmond said it sent
the case back in part because attorneys for Ali Al-Timimi have raised
concerns that the government has "undisclosed intercepts" related to
the controversial National Security Agency program. A three-judge
panel said the lower court may take up the NSA issue "and order
whatever relief or changes in the case, if any, that it considers
But the brief order did not spell out what steps U.S. District Judge
Leonie M. Brinkema might take. Timimi's attorney Jonathan Turley said
he hopes Brinkema will hold public hearings that will explore the NSA
program and whether his client was wiretapped without a warrant. If
Timimi was, Turley argued, that would be a violation of his rights
that could void the conviction.
The appellate court's order refocuses attention on the controversy
surrounding the surveillance operation, under which the NSA has
monitored perhaps thousands of phone calls and e-mails involving U.S.
residents and foreign parties without obtaining warrants from a secret
court that handles such matters. Bush has argued that the program is
legal and necessary to protect Americans from terrorists.
Legal experts said the order's significance remains to be seen, noting
that it is unclear whether Brinkema will order hearings -- and if she
does, those sessions could be shielded from public view because of the
sensitive information involved.
Kate Martin, director of the Center for National Security Studies in
Washington, said the order "is a recognition by the 4th Circuit that
on its face, the fact of NSA surveillance might well be important to
this case." But she said appellate courts frequently send cases back
to lower courts when new facts come to light.
Federal prosecutors had initially opposed returning the case to
Brinkema but dropped their opposition for reasons that were unclear
yesterday. Prosecutors declined to comment. The 4th Circuit order said
the government had emphasized that its "consent to [Timimi's] motion
does not reflect its views on the merits of al-Timimi's contentions."
David B. Smith, an attorney for another convicted terrorist who has
used the NSA program to challenge his conviction, said the lack of
government opposition makes the order less significant. Bush
administration officials have fiercely guarded details of the NSA
program since it was exposed in media reports last year.
Smith represents Iyman Faris, an Ohio truck driver who pleaded guilty
in 2003 in a terrorist plot to attack Washington and New York. Faris
has urged Brinkema, also the judge who heard his case, to throw out
his plea in part because he was spied on through the NSA program. The
judge has not ruled.
Faris is one of a number of terrorism defendants who have challenged
the NSA program in court in recent months and argued that it was
improperly used in their cases.
Timimi is a U.S. citizen who was convicted last year of inciting his
Northern Virginia followers to train for violent jihad against the
United States. He was sentenced to life in prison. Timimi's attorneys
had begun the process of appealing his conviction but filed a motion
to return the case to Brinkema this year.
The government has not said publicly whether Timimi was subject to the
NSA program. But Turley believes that he was, arguing that Timimi
often made the type of overseas phone calls that were wiretapped and
that "there was considerable overlap in the dates and details of the
investigation of al-Timimi and the NSA operation."
In addition, Turley said, the government revealed in an unrelated case
that a key figure in Timimi's trial, Suliman al-Buthe, was secretly
monitored by the NSA. Jurors heard testimony at Timimi's trial that
Timimi had discussed his views celebrating the 2003 crash of the space
shuttle Columbia in a phone conversation with al-Buthe. "We are going
to proceed cautiously and give the government every opportunity to
answer these questions," Turley said. "I'm hopeful that Judge Brinkema
will be just as interested in finding the answers as we are."
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