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Judge Gerald Bruce Lee has delayed sentencing until government officials answer that question. NPR's Ari Shapiro reports.
ARI SHAPIRO: 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.
KAHIM WYATT: We sent a letter to the prosecutor asking them if indeed this was something that Mr. Abu Ali was the target of.
SHAPIRO: But Wyatt says the prosecutors might not have even known where investigators' information came from.
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: Bruce Fein was Associate Deputy Attorney General in the Reagan Administration. He says he's been anticipating something like this.
BRUCE FEIN: 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: Fein says now the Administration is faced with a difficult choice.
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: 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:
ALBERTO GONZALES: 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.
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: Ari Shapiro, NPR News, Washington.
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