Albany Terror Case May Be Court Test for NSA Wiretapping Program

The New York Times today reports that the Albany terror trial of Yassin M. Aref may have the best chance of challenging the NSA warrantless wiretapping program.

TalkLeft has been writing about Mr. Aref's case since its inception in 2004 (see here) and about its NSA wiretapping connection since Aref's lawyer, Terry Kindlon, filed his first challenge to the program. Aref's case was the Ashcroft-initiated prosecution of the pizza man and the Iman.

From Terry's initial 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.

The Judge denied the motion in a secret ruling. Terry then went to the Second Circuit Court of Appeals asking it to compel the District Court to direct the government to come clean about the role warrantless wiretaps played in its case. He got no relief.

The Government used the "Doogie Howser" of terrorism experts at trial and Aref and his codefendant were convicted. Even though Aref's sentencing guidelines were 30 years to life, the Judge sentenced him to 15 years. Even the Judge didn't believe Aref was motivated by a desire to help terrorists.


Judge Thomas McAvoy told Hossain, "you submitted to crimes out of greed, not a desire to support terrorism."

Now Aref is appealing his criminal conviction to the Second Circuit Court of Appeals. As he asked for, he's gotten lots of organizations to file amicus briefs on the NSA wiretapping issue.

As the Times reports today, Aref's case stands in sharp contrast to the 6th Circuit case that was dismissed for lack of standing.

In a nutshell, Aref has standing, unlike the plaintiffs in the Sixth Circuit, and he has an excellent argument that his constitutional rights to due process, to present a defense and to a fair trial trump the government secrets doctrine, which resulted in the dismissal of the civil type actions.

Also, Aref's lawyers, in early 2006, were able to point straight to the presence of information produced by a warrantless wiretap.

It seems like the Second Circuit is either going to have to affirmatively deal with the issue or pretend it didn't notice it, a tough feat considering all the amicus briefs filed in the case.

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    This is good news (none / 0) (#1)
    by Maryb2004 on Sat Aug 25, 2007 at 11:05:32 PM EST
    I'm not sure how I missed that Doogie Howser of Terrorism post last year.  But I'm sorry I did.