Criminal defense lawyer Terry Kindlon (a frequent reader and commenter on TalkLeft) has filed what is believed to be the first motion to dismiss criminal charges against his client due to Bush's warrantless NSA electronic monitoring program.

An FBI sting case that targeted two members of an Albany mosque should be dismissed because the investigation originated from a national spying program that may be illegal, an attorney for one of the defendants said in a motion filed in U.S. District Court. The challenge of the government's case against Yassin Aref and Mohammed Hossain, who are accused of taking part in a plot to sell missile launchers to terrorists, may force federal prosecutors, and a U.S. District judge, to address a national debate unfolding about whether the National Security Agency violated any laws by eavesdropping on U.S. residents.

Terence L. Kindlon, Aref's attorney, filed a nine-page motion late Friday asking for all evidence in the case to be thrown out, and for a dismissal of the indictment. While defense lawyers in the case have been requesting access to classified evidence for more than a year, the new motion specifically targets the NSA program.

....Now, with attorneys for Aref and Hossain confident secret surveillance was the catalyst for the FBI's Albany sting, the stage is set for the NSA program to be challenged on constitutional grounds as part of the local case. The question is whether the government will be compelled, even tacitly, to confirm that Aref was targeted because of information gleaned from the controversial spy program.

For years, conspiracy was considered the "darling of the prosecutor's nursery." Then it was RICO, the organized crime statute. Today, it's "providing material support to terrorists."

The Washington Post today revisits the improbable conviction of translator Mohammed Yousry, who was appointed by the Court to translate for attorney Lynn Stewart and her client, Omar Abdel Rahman.

Yousry now awaits sentencing in March, when he could face 20 years in prison for translating a letter from imprisoned Muslim cleric Omar Abdel Rahman to Rahman's lawyer in Egypt.

Yousry is not Muslim and had been critical of Rahman in the past. He is a U.S. citizen, married to an Evangelical Christian. Legal experts say the trial transcript show little or no evidence that he committed a crime.

by Last Night in Little Rock

The NY Times reports today that the government stated at a hearing for Jose Padilla that he filled out an application form to join al Qaeda.

The "Mujahideen Data Form" bears the signature of Abu Abdallah al Muhajir, which the F.B.I. says is the Muslim name that Mr. Padilla adopted after he converted to Islam. Defense lawyers have questioned the authenticity of the document, potentially a critical piece of evidence for prosecutors trying to prove that Mr. Padilla sought to become a terrorist.

The defense disputes its authenticity. This is the first glimpse of what the government is using to detain Padilla, accused of planning to make a "dirty bomb."

Jose Padilla was denied bail in Florida today and pleaded not guilty to the charges against him.

In denying bail, U.S. Magistrate Judge Barry Garber sided with prosecutors who said Padilla likely would flee to avoid trial and that the charges - including allegations that he attended an al-Qaida training camp in Afghanistan - made him dangerous.

Miami lawyer David Markus was there and has a recap of the hearing.

Catchy title, no? In theory, it's true. A heaing will be held Tuesday Thursday in federal court in Miami to determine whether Jose Padilla will be granted bail, or detained as a danger to the community or a flight risk pending trial.

David Markus was in court today, and has the details of who is going to represent Padilla and how it was determined. The short answer is: The Miami Federal Defenders (great office with great lawyers by the way) will be lead counsel, and Andy Patel, one of Padilla's New York lawyers since 2002, will be co-counsel. But read David's post for a little bit of how this was determined, and how the Assistant U.S. Attorney tried to block the federal defender from entering the case.

As to the bail issue, David reports:

Judge Garber then asked the government what its position was on bail. AUSA Pell said that the government was asking for pretrial detention based on risk of flight and danger to the community, to which Judge Garber quipped: "Why am I not surprised?"

Last week I predicted that defense lawyers would soon start filing motions related to Bush's warrantless NSA surveillance. The New York Times reports lawyers from coast to coast are getting ready to hit the courts, and some will seek to reopen cases in which the defendants have been convicted and are serving their sentences.

Defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the N.S.A. program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals.

Here are a sampling of the lawyers speaking up:

• Gerry Spence, who represents Oregon lawyer Brandon Mayfield in his civil action against the U.S. for arresting and detaining him as a material witness in the Spain bombings. Mayfield was later released with no charges brought.

• Lawyers for the Lackawanna (Buffalo) 6 and Portland 7 are considering challenges, as are those representing Jose Padilla's co-defendants.

The prosecution of Tampa Professor Sami al Sami was not only a failure for the Justice Department, it was a failure of the Patriot Act.

The trial was a crucial test of government power under the USA Patriot Act, which lowered barriers that had prevented intelligence agencies from sharing secretly monitored communications with prosecutors. The case was the first criminal terrorism prosecution to rely mainly on vast amounts of materials gathered under the Foreign Intelligence Surveillance Act (FISA), whose standards for searches and surveillance are less restrictive than those set by criminal courts.

...Then-U.S. Attorney General John D. Ashcroft hailed al-Arian's 2003 indictment as an early victory for the Patriot Act.

Bump and Update: Reuters reports al-Arian was acquitted on most charges and the jury deadlocked on others. Way to go, Bill Moffitt.

In a stinging defeat for prosecutors, a former Florida professor accused of helping lead a terrorist group that has carried out suicide bombings against Israel was acquitted on nearly half the charges against him Tuesday, and the jury deadlocked on the rest.

....After a five-month trial and 13 days of deliberations, the jury acquitted Al-Arian of eight of the 17 counts against him, including a key charge of conspiring to maim and murder people overseas. The jurors deadlocked on the others, including charges he aided terrorists....Two co-defendants, Sameeh Hammoudeh and Ghassan Zayed Ballut, were acquitted of all charges. A third, Hatem Naji Fariz, was found not guilty on 24 counts, and jurors deadlocked on the remaining eight.

A federal judge ordered the Government to make three al Qaida witnesses, including Khalid Shaikh Mohammed and Ramzi Binalshibh, who are being held overseas in secret prisons where they likely have been tortured, available to Zacarias Moussaoui for interviews because they might have evidence that would show he was not part of the 9/11 attacks and might have evidence favorable to him on the issue of whether, if convicted, he should receive a sentence of life imprisonment or death. The Judge felt so strongly about this issue, that she ordered the Government be precluded from seeking death or introducing 9/11 evidence at his trial unless the Government made the three al Qaida members available for personal interviews.

The Government appealed and the Fourth Circuit agreed, but said written questions could take the place of live interviews. Moussaoui appealed to the Supreme Court which ultimately agreed that the witnesses should have been made available, but ruled the striking of the death penalty was too harsh a remedy.

Moussaoui then pleaded guilty to being a member of al Qaeda and providing material support to it, while denying he conspired to commit the 9/11 attacks and reserving the right to argue for life versus death at sentencing. The sentencing phase of the trial is set for January.

It's the same old song with Jose Padilla.

by TChris

After Jose Padilla was arrested in May 2002, John Ashcroft “interrupted a trip to Moscow to announce on television that the authorities had foiled an effort by Mr. Padilla and other Qaeda operatives to detonate a radioactive or ‘dirty’ bomb on American streets.” Three-and-a-half years later, Padilla has finally been charged -- but not with attempting to detonate a bomb on American soil.

In June 2004, the Justice Department claimed Padilla had “plotted to blow up apartment buildings and hotels, perhaps in New York.” But he hasn’t been charged with conspiring to destroy property in the United States.

How does Attorney General Gonzalez explain the administration’s change of heart? He claims the administration’s decision to hold Padilla for more than three years, first as a material witness and then as an uncharged “enemy combatant,” as well as the administration’s previous accusations of wrongdoing, are “legally irrelevant to the charges we’re bringing today.”

Padilla’s lawyers disagree.

by TChris

David Glazier explains why new rules for the military commissions that try suspected terrorists held at Guantanamo -- rules that are supposed to assure the fairness and accuracy of the commissions' decision-making process -- fail to achieve their goal. One of the glaring problems: trial procedures that permit a defendant to be convicted on the basis of "secret evidence" that the defendant is never entitled to see. Is someone in the Bush administration a fan of Kafka?

Glazier's recommendation:

by TChris

Two men accused of terrorism have been ordered held in solitary confinement for fear that they might persuade other prisoners in the detention facility’s general population to join the terrorist cause. The notion that other inmates are susceptible to terrorism recruitment seems far-fetched, but the government persuaded a court to go along with its desire to isolate the suspects.

U.S. District Judge Marcia Cooke denied motions by Adhan Amin Hassoun and Kifah Wael Jayyousi to be moved out of the special housing unit at Miami's downtown federal detention center. But Cooke also said she will insist that the U.S. Bureau of Prisons provide them with greater access to their lawyers to prepare for what will be a lengthy, complex trial in fall 2006.

TalkLeft background on the case is here.