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Terror Case Sent Back to Lower Court

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    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
    Message 1 of 1 , May 6, 2006
      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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