Government Won't Release NSA Information to Attorneys

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Attorneys trying to find out whether their U.S. clients were monitored by the NSA are running into a problem that could make it difficult to challenge the surveillance program. The government says that any information about the cases is classified, and that even attorneys can't view it.

MICHELE NORRIS, host:

From NPR News this is ALL THINGS CONSIDERED. I'm Michele Norris.

MELISSA BLOCK, host:

And I'm Melissa Block. The Bush Administration is taking new steps to keep details about its domestic surveillance program from appearing in court. Warrantless surveillance by the National Security Agency has become an issue in a number of court cases. The government is keeping a tight lid on information, arguing that details are too sensitive to be released. NPR's Larry Abramson reports.

LARRY ABRAMSON, reporting:

Like other attorney's Terry Kindlon has been trying to find out whether the NSA monitored his client, Yassin Aref, accused in a plot to import a shoulder fired missile. When the New York Times quoted anonymous government sources as saying yes, the Aref case did involve NSA bugging, Terry Kindlon asked the court whether that was true. Not surprisingly, the government opposed disclosure. Terry Kindlon says his copy of the government's brief was very brief.

Mr. TERRY KINDLON (Yassin Aref's Attorney): And I quote, “the government hereby gives notice of submission of the government's in camera exparte classified memorandum in response to defendant's motion for reconsideration.” And it stops right there. And then it has parentheses and it says redacted and the parentheses closes, and that's the end of their response.

ABRAMSON: The prosecutor's argument was classified, so Kindlon couldn't see it even though he has a security clearance. And when the judge agreed with the government and refused to release the information Kindlon wanted, that ruling was also classified. Kindlon says he's used to battling with prosecutors, but…

Mr. KINDLON: Here, effectively, what the government has done is they've eliminated the defense lawyer from the equation.

ABRAMSON: After Kindlon appealed to a higher court this week, the judge disclosed part of his reasoning. He said simply that the government's interest in protecting national security outweighs the defendant's right of access. Sequestering that information could trip up efforts by lawyers around the country who are hoping to challenge the possible use of evidence based on the NSA program.

Attorney Jonathan Turley is appealing the conviction of Ali Al-Timimi for urging others to wage jihad and he's looking for possible NSA wiretaps. Turley says that since 9/11, the government has been saying, sorry it's classified in a growing number of cases.

Mr. JONATHAN TURLEY (Attorney): It's now using the law to prevent defense counsel from seeing very critical documents, including documents that could result in an acquittal for the defendant.

ABRAMSON: The only defendant who says he has proof of an NSA wiretap has also seen that evidence go into the classified vault. Soliman al-Buthe has been indicted on tax charges for allegedly funneling money to terrorists via the Al-Haramain Islamic Foundation. The government has sealed what al-Buthe says is a transcript from an NSA wiretap released by mistake. In response to questions about that document today, Attorney General Alberto Gonzalez said this…

Attorney General ALBERTO GONZALEZ (United States): If we can provide information we do so, but there are a variety of reasons why, without commenting on this particular case, why certain kinds of records or information can be and should be withheld.

ABRAMSON: Classification may be the only way for the government to protect the information from prying lawyers. By law, defense attorneys are not allowed to see the documents used to justify eavesdropping with a warrant under the Foreign Intelligence Surveillance Act. But many experts say an energetic lawyer should be able to challenge evidence based on warrantless searches. In a hearing before the senate judiciary committee this week, former DOJ official Allan Kornblum said as much.

Mr. ALLAN KORNBLUM (Former Department of Justice): If the president wanted to go forward with prosecution and use that evidence at trial, it would be subject to the federal rules of criminal procedure to the normal discovery. If the president…

Senator ORRIN HATCH (Republican, Utah): So there would definitely be protections for individuals.

ABRAMSON: That response came from Senator Orrin Hatch. A Republican and a defender of the program who seemed to feel that protection will ensure the information is only used for intelligence purposes and not in court. Defense attorneys say keeping the material classified may protect intelligence sources, but it may leave them in the dark. Larry Abramson, NPR News, Washington.

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