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Lawyer Seeks Dismissal of Criminal Charges Over NSA Surveillance

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.

From Terry's motion:

"The government engaged in illegal electronic surveillance of thousands of U.S. persons, including Yassin Aref, then instigated a sting operation to attempt to entrap Mr. Aref into supporting a nonexistent terrorist plot, then dared to claim that the illegal NSA operation was justified because it was the only way to catch Mr. Aref," Kindlon's motion said.

There's a gag order in the case and neither Terry nor the AUSA are talking.

[Graphic created exclusively for TalkLeft by CL.]

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  • Re: Lawyer Seeks Dismissal of Criminal Charges Ove (none / 0) (#1)
    by Dadler on Tue Jan 24, 2006 at 10:25:34 AM EST
    Didn't realize our occasional commentator was also a bigtime defender. Hat's off, counselor K. As to the case, I'm surprised it took this long. And it's certainly going to be quite a ride on this issue through the courts. Off we go.

    Re: Lawyer Seeks Dismissal of Criminal Charges Ove (none / 0) (#2)
    by Edger on Tue Jan 24, 2006 at 10:40:37 AM EST
    "Tip of the Iceberg" Kindlon? Best wishes, Terry.

    Re: Lawyer Seeks Dismissal of Criminal Charges Ove (none / 0) (#3)
    by squeaky on Tue Jan 24, 2006 at 10:48:26 AM EST
    The gag order is very convient trick for the gov. It seems to me to be quite an abuse of power and unreasonable.

    Re: Lawyer Seeks Dismissal of Criminal Charges Ove (none / 0) (#4)
    by Punchy on Tue Jan 24, 2006 at 10:56:51 AM EST
    defense lawyers in the case have been requesting access to classified evidence for more than a year Being not the lawyer, is it normal to wait a year for evidence to be handed over? This seems obscene. A potentially innocent client sits in the cooler for a year just waiting for the prosecution to fullfil its obligation to offer up the applicable evidence? Is it because A) it's the gov't, B) it's THIS Admin, C) it's classified, or D) B & C together?