Judge Orders Wiretaps Revealed for Trial
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A federal judge wants to know if a convicted al Qaeda plotter was the subject of government eavesdropping without court approval. The man was found guilty of plotting to kill President Bush. The question is whether he was also a target of a National Security Agency program to conduct surveillance without warrants.
Judge Gerald Bruce Lee has delayed sentencing until government officials answer that question. NPR's Ari Shapiro reports.
ARI SHAPIRO reporting:
When defense lawyer Kahim Wyatt(ph) had first heard that Americans' phones had been tapped without a judge's permission, he immediately thought of his client, Ahmed Abu Ali.
Mr. KAHIM WYATT (Defense Attorney for Ahmed Abu Ali): We sent a letter to the prosecutor asking them if indeed this was something that Mr. Abu Ali was the target of.
SHAPIRO: Prosecutors replied that Abu Ali, who's an American citizen, was never surveilled without a warrant.
But Wyatt says the prosecutors might not have even known where investigators' information came from.
Mr. WYATT: It was just so unlikely that the only time they asked for a wiretap of him was approximately one year after his arrest in Saudi Arabia.
SHAPIRO: Abu Ali was studying at an Islamic University in Saudi Arabia when he was arrested and taken to a Saudi prison. He confessed to plotting with al Qaeda to carry out terrorist attacks, including one to assassinate President Bush.
But he says he only confessed because he was tortured by the Saudis. A jury rejected that defense and convicted him on all nine counts a few months ago.
Now, Judge Gerald Bruce Lee has put sentencing on hold until the government submits a sworn declaration saying whether any information from the warrantless surveillance program was used against Abu Ali. Due date: March 9th.
Justice Department spokesman Brian Roehrkasse said the government plans to comply with the Judge's request.
Bruce Fein was Associate Deputy Attorney General in the Reagan Administration. He says he's been anticipating something like this.
Mr. BRUCE FEIN (Former Associate Deputy Attorney General): This particular ruling shows that in a democracy, secrecy is simply not acceptable, because it precludes accountability. What you now have is a judge insisting that the government come forth and explain whether or not a particular prosecution was aided or abetted by warrantless eavesdropping outside the scope of the Foreign Intelligence Surveillance Act.
SHAPIRO: That's the law that was designed to monitor domestic spying.
Fein says now the Administration is faced with a difficult choice.
Mr. FEIN: Will they come forth and explain the scope of the surveillance and certify that it was not used here? Or if in fact it was used, are they willing to test its constitutionality before an impartial judge?
SHARIPO: Attorney General Alberto Gonzales has repeatedly said that he does not believe the spying program will hurt terrorism prosecutions.
At a news conference yesterday, he announced an unrelated terrorism indictment, and when a reporter asked whether those charges were a result of warrantless eavesdropping, Gonzales said this:
Attorney General ALBERTO GONZALES (United States Attorney General): As I've said in previous discussions about the terrorist surveillance program, we are very, very much concerned about ensuring that we've done everything we can do to not jeopardize any prosecution, to not jeopardize any investigation, and I'll just leave it at that.
SHAPIRO: Defense lawyer Wyatt says this latest development may not jeopardize the prosecution.
Mr. WYATT: I'm open to hearing what they have to say. Their first question they have to answer is whether or not they actually were listening to him through a warrantless tap.
SHAPIRO: If not, the issue may be moot. In this case at least.
There are a handful of other terrorism cases where defense lawyers have also asked a judge to take action in order to find out whether their clients were spied on without a warrant.
Ari Shapiro, NPR News, Washington.