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Defendants Plan Suits Over NSA Surveillance

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.

  • David B. Smith intends to bring a challenge for David Faris, charged in Ohio with plotting to blow up the Brooklyn Bridge:

[He] said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush.

  • The co-defendants of Jose Padilla are gearing up:

[They] plan to file a motion as early as next week to determine if the N.S.A. program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think they absolutely have an obligation to tell us" whether the agency was wiretapping the defendants.

  • John Zwerling, one of my pals from Alexandria, VA., will be filing as well, on behalf of Seifullah Chapman. Chapman was a follower of Ali al-Timimi, a Muslim scholar convicted of inciting his disciples to wage war against the U.S. Al-Timini is serving a life sentence, Chapman is serving 65 years.

[Zwerling] said he and lawyers for two of the other defendants in the case planned to send a letter to the Justice Department to find out if N.S.A. wiretaps were used against their clients. If the Justice Department declines to give an answer, Mr. Zwerling said, they plan to file a motion in court demanding access to the information. "We want to know, Did this N.S.A. program make its way into our case, and how was it used?" Mr. Zwerling said. "It may be a difficult trail for us in court, but we're going to go down it as far as we can."

Some federal prosecutors tell the Times the NSA warrantless surveillance could be a problem for the Government in both past and future cases.

I think those who pleaded guilty and waived their right to appeal may have a tough time getting back into court. Also, the Lackawanna Six defendants, some of whom pleaded guilty in part to avoid being designated as enemy combatants and shipped to Guantanamo, may decide against making a challenge to preserve their bargains.

The bottom line is the government and prosecutors are required under a Supreme Court ruling known as Brady v. Maryland to provide defendants with all "material" information affecting their case, including derogatory information that could impact the credibility of prosecution witnesses. This includes information that might impact their guilt or their sentence.

Another Supreme Court case, Kyles v. Whitley, 514 U.S. 419 (1995) held that the duty of disclosure is not limited to evidence in the actual possession of the prosecutor. Rather, it extends to evidence in the possession of the entire prosecution team, which includes investigative and other government agencies.

I continue to think the place to begin is with a simple request under 18 U.S.C. Section 3504.

(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States—

(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act; .....

(b) As used in this section “unlawful act” means any act the use of any electronic, mechanical, or other device (as defined in section 2510 (5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.

The Government can't avoid answering the defense requests simply by asserting the material is classified. Once it is established that a defendant has standing to make the challenge, at a minimum I think the Government could be compelled to submit the information to the Judge for a decision on whether it is relevant and helpful to the defense and should be turned over. In the event of an adverse decision by the Court, the Government should have only two choices: either turn over the information or refuse and dismiss the criminal charges.

We don't convict on secret evidence in the U.S.... yet.

Update: Reddhedd weighs in here.

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  • Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#1)
    by Talkleft Visitor on Tue Dec 27, 2005 at 09:42:34 PM EST
    My understanding is that Jack Abramoff is also looking at this as an angle tonight.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#2)
    by Che's Lounge on Tue Dec 27, 2005 at 10:15:25 PM EST
    Can someone answer me this question? Are we in a state of war or not? Because that is the backbone defense promulgated by the fascist pundits to legally justify the (vice) president's actions.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#3)
    by Talkleft Visitor on Tue Dec 27, 2005 at 11:16:34 PM EST
    That NY Times link is actually a repaste of your prediction link. Here (for readers, until its fixed), is the NY Times story. [Thanks, I fixed it.]

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#4)
    by Talkleft Visitor on Wed Dec 28, 2005 at 04:13:15 AM EST
    Are we in a state of war or not?
    While we are of course in a state of war, it doesn't seem to likely that all these wiretaps were directed at agents of the Iraqi insurgency, does it? Bush enablers, as is their habit, conflate the real war in Iraq with the metaphorical "war on terrorism"--you can't really be at war with a tactic.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#5)
    by kdog on Wed Dec 28, 2005 at 06:15:34 AM EST
    And if these defendants are in fact guilty bad dudes...we will have Bush's lawlessness to blame for their release. Speaking for me, I'd rather a terrorist go free than grant the president unlimited power to spy on American citizens without court oversight.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#6)
    by peacrevol on Wed Dec 28, 2005 at 06:45:26 AM EST
    Texas is on fire...literally. We've been fighting them for days. Not trying to hijack the thread or anything tho...just saying. These terrorists are trying to make America a police state. They know that if they put enough heat on everyone, the US govt will take away citizens' rights in the name of nat'l security. So far it's working. That's how they saw US occupation of the middle east and they're trying to bring it to everyone's attention by scaring us into letting our prez have the power to spy on us. We cant let that happen b/c our safety is not worth giving up our freedom. That's what they teach you when you're young and all the way through school. Paul Revere didnt ride for his safety. He rode for his freedom. Until our citizens and leaders understand that, i dont think we'll get anywhere in the "WOT".

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#7)
    by jimakaPPJ on Wed Dec 28, 2005 at 07:05:31 AM EST
    kdog - Get a grip. Everyone else doesn't have rolled up Aces and the President doesn't have the unlimited power to spy on American citizens. He has the power to spy on non-US Persons, an the power to tap conversations/messages between US Persons and non-US Persons who are suspected to be terrorists.
    (i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this
    So, a non-US Person would be someone who is in the country illegally, or has obtained a Green card unlawfully, or someone in the US on a Visa, or a foreigner located somewhere in the wide, wide world. Say, in a cave in Afghanistan. It is further modified:
    B there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
    BTW – There is nothing new in this. It dates back to Carter and has been used by every administration since that time.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#8)
    by Edger on Wed Dec 28, 2005 at 07:31:01 AM EST
    It is further modified: ...there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party Do you never read the news, or even other TL posts here? Do you live in a cave somewhere? Or do you just have the blankets pulled up over your head while you curl up with your hands over your ears?
    This month it was disclosed that the Bush administration has circumvented the Foreign Intelligence Surveillance Court to monitor hundreds of Americans since the Sept. 11 attacks without any warrants. Bush and his inner circle said the practice is limited to occasions when an individual in the U.S. is communicating with someone overseas who has a known link to Al Qaeda, other terrorist groups or their supporters. --LA Times
    -----
    communications someone such as the publisher of The New York Times may have had with say, story and/or fact sources within Al Jazeera, which would have made him "an individual in the U.S. is communicating with someone overseas who has a known link to Al Qaeda"? --Link


    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#9)
    by kdog on Wed Dec 28, 2005 at 07:58:30 AM EST
    Jim..we will have to wait and see if we ever find out who was in fact spied upon. I don't trust the Bush explanation.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#10)
    by kdog on Wed Dec 28, 2005 at 08:02:18 AM EST
    P.S....It's wrong no matter who the pres. is. Honestly, this isn't Bush-Hating...just freedom-loving:)

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#11)
    by ltgesq on Wed Dec 28, 2005 at 08:13:08 AM EST
    As a criminal defense lawyer, my fear is that the members of the federalist society that are on the bench now will now take the initiative to erode what little there is left of the 4th amendment to the consitution. we have had 4 presidents in a row now that have had a very dim view of court authority and the constituion in general. I hold Clinton to the same standards as the rest. Now, once we have a genuine 4th amendment crisis in this country, our judiciary is filled with appointees that, on the whole, have little regard for the 4th amendment. We are on the cusp of either a renewal of the precepts of the 4th amendment, or the determination that anything the president decides to do is per se "reasonable" and obviates the need for a warrant. I hold little hope for the outcome.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#12)
    by peacrevol on Wed Dec 28, 2005 at 08:18:10 AM EST
    Ltg has it right. That's how a govt gains power...by taking a little more here and there so that it grows gradually. If we stand aside and let the prez get away with spying on US citizens, what's the next pres going to think he can do? I say we need to let the govt know that we the people still have the power.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#13)
    by The Heretik on Wed Dec 28, 2005 at 08:39:57 AM EST
    Jeralyn, you were way ahead on this. Bubble Times continue.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#14)
    by Punchy on Wed Dec 28, 2005 at 09:02:19 AM EST
    I fail to see how you conclude that " The Government can't avoid answering the defense requests simply by asserting the material is classified." They absolutely can, and will. And why not? If they can disobey the law by claiming "nat. sec.", just why wouldn't they do it again here? If they snubbed the FISA courts of the proper warrants, why would they NOT just ignore any directive given by a judge in the name of "presidential powers" and "nat. sec."??? Therein lies the fall of our freedom. Once the gov't is "allowed" to declare nearly ANY action "in the name of nat. sec.", then everything and anything can be hidden and classified. Do these congressman investigating pre-war intelligence REALLY think they'll get access to all the info? How about those Bolton NSA intercepts?

    When Brandon Mayfield was arrested, I never did see an explanation of how his fingerprints were "matched" to materials from the Madrid bombing. Maybe we'll find out now.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#16)
    by Talkleft Visitor on Wed Dec 28, 2005 at 10:36:08 AM EST
    Sincere question. Are there any methods for determining if one has been wiretapped/spied on? We had a visit from the FBI and Local Sherriff department (same sherriff's office in Farenheit 9/11)- Making inquiries about our neighbors (muslim)- and refusing to give us their names or badge numbers. After that, we noticed a change in our phone lines (a delay) and did feel on occasion we were followed by unmarked vehicles. We also witnessed Fresno Sherriff vehicles watching our neighbor. We have also placed calls to Syria and Yemen.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#17)
    by Sailor on Wed Dec 28, 2005 at 10:52:39 AM EST
    Once again GWB's own words contradict whizzy's retching points :
    "... any time you hear the United States government talking about wiretap, it requires _ a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."


    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#18)
    by Punchy on Wed Dec 28, 2005 at 10:55:18 AM EST
    Sandy-- If you made calls to both Syria and Yemen, there's about a 100% chance your phone is bugged. Especially calling Syria. At this point, you might as well call the FBI office and invite all the guys who've been listening to your voice over for a BBQ....

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#19)
    by Edger on Wed Dec 28, 2005 at 11:27:41 AM EST
    Sandy: Are there any methods for determining if one has been wiretapped/spied on? The method I've always used is... If I've said anything or done anything that I think any authority might be interested in reading or hearing or watching, I assume they already have. Ahem... Including posts made here.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#20)
    by Edger on Wed Dec 28, 2005 at 12:16:24 PM EST
    The Bush Administration, in these cases will refuse, as did the Nixon administration, to divulge information on national security grounds. Many alleged critical cases must then be dismissed. It will include Organized Crime and drug cases. ... The entire criminal process will be brought to a standstill. Cases that should take six months to a year, will take three times as long, as motions go up and down the appellate ladder – as federal judges trial disagree with each other. Appellate Courts will disagree on issues so novel and so important that the Supreme Court will look at them. ... But the facts will show that the Bush administration, with the knowledge, and at times, the consent of, the FISA judges, conducted illegal physical break-ins - break-ins that to this day, the involved person, is unaware of. Martin Garbus: Impeachment is Now Real Yahoo News - 2 hours ago

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#21)
    by Talkleft Visitor on Wed Dec 28, 2005 at 12:17:43 PM EST
    Thanks Edger and Punchy I'm not worried about any of my actions- I am just outraged that this can come about for simply having Muslim friends. I havent said or done anything to alert any authorities. However if you remember this department infiltrated Peace Fresno with an officer. Middle age - cookie eating peace advocates. Oh just as well. Let them listen. It only bothers me as I serve in the capacity of a not for profit director and most of my conversations are considered privileged under the California Constitution. Makes me leery and deters my advocacy.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#22)
    by jimakaPPJ on Wed Dec 28, 2005 at 01:27:58 PM EST
    edger - Do you ever read before writing? My information to kdog defined what the LAT article is wriitng about, except I copied the FISA information rather than using a loosely, inaccurate, "american citizen" definition. And yes, the publisher, or his dog's groomer, may have and should have, been listened in on if they talking to people as defined. No free passes for the press. They have demonstrated they don't deserve any. Or at least that is what the Left claimed about Judith Miller.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#23)
    by Edger on Wed Dec 28, 2005 at 04:50:05 PM EST
    THE KEY QUESTION ABOUT BUSH'S WIRETAPPING PROGRAM. Listening Skills by Spencer Ackerman TNR Online - 12.27.05
    What are the administration's criteria for eavesdropping, and why didn't they satisfy the Foreign Intelligence Surveillance Act's criteria for probable cause? Don't expect administration officials to answer as long as they can avoid it. ... If there's one point the administration and its allies have labored to emphasize, it's that the program only spied on people clearly connected to terrorism. ... Don't believe them. As many have argued since the story broke, if the administration truly possessed "reasonable basis" that the targets of such surveillance were connected to Al Qaeda, it could have obtained warrants from the FISA court ... So why would the administration choose for four years to shunt the deferential FISA court aside if it could connect surveillance targets to Al Qaeda? The program only makes sense if the administration doesn't have the "reasonable basis" for searching that Gonzales insists it always does. ... "They couldn't dream one up." ... "the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious." In other words, contrary to everything the administration has said about the program, the warrantless surveillance only makes sense if the administration is casting a massive electronic net for anything that sounds remotely suspicious.


    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#24)
    by Edger on Wed Dec 28, 2005 at 06:41:39 PM EST
    Sorry - the link in my post above takes you to a subscriber page with only an excerpt of Ackerman's article. The link on this google page titled THE KEY QUESTION ABOUT BUSH'S WIRETAPPING PROGRAM should take you directly to the entire article.

    Re: Defendants Plan Suits Over NSA Surveillance (none / 0) (#25)
    by Talkleft Visitor on Thu Dec 29, 2005 at 02:49:42 PM EST
    Humm... Lawyers chasing ambulances...what a surprise! Sandy... We have also placed calls to Syria and Yemen. I think it's a safe bet you are being watched.