August 25, 2007

How Dare the Dictator Spy on Radical Mosques!

Hatched by Dafydd

This could get interesting (and potentially ugly): An imam and a pizzeria owner were convicted of supporting terrorism... and they're now appealing, claiming the National Security Agency's Terrorist Surveillance Program violated their constitutional rights.

First, just the facts, ma'am:

After a bloody raid by American military forces on an enemy camp in Rawah, Iraq, on June 11, 2003, a Defense Department report took inventory. Eighty suspected terrorists killed. An enormous weapons cache recovered. And, in what the report called “pocket litter,” a notebook with the name and phone number of the imam of a mosque halfway around the world, here in the state capital.

Prompted by that notebook and records of 14 phone calls between the imam, Yassin M. Aref, and Damascus, Syria, the Federal Bureau of Investigation quickly began a sting operation aimed at Mr. Aref. Federal agents used an informant with a long history of fraud who spun tales to Mr. Aref about a fictitious plot involving shoulder-launched missiles and the assassination of Pakistani diplomat in New York.

Mr. Aref and a friend who owned a pizzeria were convicted of supporting terrorism by agreeing to help launder money for the fake operation, and in March the two men were sentenced to 15 years in prison.

What makes the case unusual is that Aref may have been under surveillance by the National Security Agency, possibly under the TSP. There are two external indicators of this:

  • An exchange during the trial over an FBI agent who was on the stand. One of Aref's defense attorneys (who is paying for the high-powered legal defense?) asked Special Agent Timothy Coll whether Aref had been under "24-hour surveillance." The lead prosecutor, Assistant U.S. Attorney William C. Pericak, objected, saying "I’m concerned that a truthful answer should implicate classified information."

    The defense lawyer rephrased the question to ask only whether Aref had been under 24-hour physical surveillance, and Coll quickly answered No. I'm not sure how Coll interpreted the phrase "physical surveillance," or even whether that is a term of art; but the implication is certainly that Aref was under 24-hour non-physical surveillance, which may mean a phone tap, which in turn may mean the TSP.

  • At one point during the trial, the defense lawyers asked the judge to require the federal government to produce information about the TSP. The government (the Times is unclear what branch or division, or whether it came through Pericak) responded with a brief that was itself classified. The defense attorneys were not allowed to see the prosecutor's filing, even though they had "security clearances" (again, no indication how high); and Judge Thomas J. McAvoy subsequently denied the defense motion -- with his entire decision classified and unavailable to the defense attorneys.

Neither of these is as definitive as the Times appears to believe. It's possible, for example, that Aref did have his phone calls intercepted... but it may have been by the FBI after receiving a warrant from the Foreign Intelligence Surveillance Court (FISC). In such a case, the warrant would be classified, and the FBI agent hesitant to answer a question about the surveillance without it first being formally declassified.

And it's entirely possible that the government's response to the request for TSP information could have been that Aref was under surveillance pursuant to a FISA warrant, not the TSP; but that the information requested was nevertheless highly classified and could not be revealed or even discussed. This is an alternative reason why the judge's order itself could be classified, as well.

Note that the Times article nowhere says or even suggests that evidence from telephone intercepts (by the NSA or anyone else) was actually presented at trial, heard or seen by the jury, or even that the prosecutor attempted to introduce such evidence and was rebuffed. The main pieces of evidence against the defendants were the recordings of their conversations with the "informant with a long history of fraud" during the sting. (Was the writer's insertion of "long history of fraud" intended to lure readers into believing that the case, despite the guilty verdicts, was fraudulent?)

There is one other indicator, though it's rather vague. According to the Times' unsupported word, unnamed "officials" told them there was a connection:

The wiretapping program was disclosed by The New York Times in December 2005. The next month, The Times reported that officials had cited the arrests of Mr. Aref and the pizzeria owner, Mohammed M. Hossain, as one of the relatively rare instances in which domestic surveillance by the N.S.A. had played a role in a criminal case.

The Times explicitly identifies the TSP program in the first sentence of the paragraph quoted above (the program "disclosed by The New York Times"). But in the next sentence, they slip on their cloak of vagueness, invoking only "domestic surveillance by the N.S.A." Since we know the NSA was running multiple intelligence-gathering programs at the time, there is no way to be sure which one "officials" were citing -- if indeed the conversation ever occurred at all, and assuming it wasn't one of those non-confirmation confirmations, à la the "re-reporting" of the Beauchamp story by the New Republic.

It's possible that Aref was surveilled under the TSP; after finding the notebook in the Rawah raid that put the feds onto Aref, the NSA might have begun intercepting his international telephone calls, to see who he was contacting. Even so, I'm still not sure how this would become a critical factor in the trial:

  • We already know how the feds got Aref's name, and it had nothing to do with the TSP;
  • Armed with that name, it would have been simple for the FBI to get a warrant from the FISC;
  • Aref was neither convicted nor even charged with committing a terrorist act abroad, or acting in concert with any known foreign terrorist, in which an NSA telephone intercept under the TSP would play a role;
  • The Times doesn't say what Aref and pizzeria owner Mohammed M. Hossain were actually convicted of, but I presume it was conspiracy to support an act of terrorism, with the third "conspirator" actually being an FBI informant, Shahed Hussain, who was wired for sound. Again, nothing to do with the TSP.

Nevertheless, the defendants' attorneys have seized upon the TSP as a last-ditch effort to avoid a stretch in the pokey for their clients... and the New York Times sees the challenge as an opportunity to get a federal circus court to rule the entire surveillance program unconstitutional:

But their case seems far from over, and it has become a centerpiece in the effort to challenge one of the Bush administration’s signature espionage programs.

Lawyers for Mr. Aref say they have proof that he was subjected to illegal surveillance by the National Security Agency, pointing to a classified order from the trial judge, unusual testimony from an F.B.I. agent and court documents concerning the calls to Syria.

If they are right, the case may represent the best chance for an appellate ruling about the legality of the N.S.A. program, which monitored the international communications of people in the United States without court approval. Unlike earlier and pending appeals disputing the program, all of them in civil cases, Mr. Aref’s challenge can draw on the constitutional protections available to criminal defendants.

The Times -- and presumably the entire panoply of leftist law professors, activists, and their elite-media lapdogs who have ached for a chance to take Bush down over this -- seems most enraged by the fact that civil-court attempts to ban the TSP and other intelligence-gathering operations have run into the brick wall of "standing," thwarting the valiant efforts of the heroic anointed: Unenlightened courts keep holding that the plaintiffs cannot show that they, personally, were subjected in any way to the TSP, and therefore have no standing to sue.

To the Times, via a surrogate interviewee, this constitutes an unfair legal technicality:

In the civil cases, appeals courts have confronted significant threshold questions, including whether the plaintiffs have standing to sue.

“There are dodges available in civil cases that just aren’t available in criminal cases,” said Corey Stoughton, a lawyer with the New York Civil Liberties Union, which has filed supporting briefs in the case. “This case might be able to put this issue to the test.”

I can't shake the feeling that to the Times, the Aref-Hossain case is the Left's best chance to finish the world-saving job that the Times began when it disclosed the program; that is, I believe that the Times saw its role as shining the light of day on a horrific violation of the constitution... a revelation that would allow activists and law professors to finally shut down all these thuggish, unnecessary, police-state infringements of our sacred constitutional right to support anti-American, anti-Western, anti-Jew, and especially anti-Bush terrorists.

The fate of Yassin Aref and Mohammed Hossain themselves is an inconsequential side issue.

It appears to me that these defendants are being treated much the way the Left treated "Jane Roe," who never did get her abortion... for which the real-life Norma Leah McCorvey, now an anti-abortion activist, is very thankful. Once McCorvey served her purpose, the attorneys in that case dropped her like a squalling newborn.

I cannot help but believe that the elite media could not care less whether Aref and Hossain end up serving their 15 years, just as they never cared whether McCorvey got her abortion, what happened to her, and what she later came to believe; all of that is irrelevant -- what matters is the ideological struggle, and the real defendants are the American people, who are clamoring for terrorist suspects to be given full rights to treat the American justice system the way Lindsay Lohan, Paris Hilton, and O.J. Simpson have.

Having already Simpsonized the civil and civilian criminal courts (for those with money, or connections to activist organizations that have money), now the elites want to Simpsonize national security and terrorist surveillance and interdiction.

The Times would stamp out every post-9/11 surveillance and intelligence program implemented by the Bush administration, without regard to what that will do to national security; if we get hit with another 9/11, it's a small price to pay for humbling Bush (can't make an omlet without breaking a few legs). Besides, saying that Bush has made America into a police state should certainly help Democrats in 2008.

Any surveillance or intelligence gathering at all -- even when it's driven by such simple and clear-cut evidence as the subject's name and phone number found in a notebook during a terrorist raid in Iraq -- is tyranny and oppression. Another one of the unrebutted New York Times interviewees, one of the lawyers for Aref, expressed it best, I think:

Terence L. Kindlon, a lawyer for Mr. Aref, saw the matter differently.

“The F.B.I. case was a hoax that grew out of the Bush administration’s misuse of fear to turn our democracy into a dictatorship,” Mr. Kindlon said.

I never realized I lived in a dictatorship. First they came for the terrorists...

I eagerly await the day when the jackboot will be thrown into the melting pot, and the fascist octopus will sing its swan song (hat tip to George Orwell). Journalists of the world unite behind radical Islamism! You have nothing to lose but your independence, your freedom, and your heads.

Hatched by Dafydd on this day, August 25, 2007, at the time of 3:48 PM

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The following hissed in response by: Terrye

The truth is that as far as most Americans are concerned these guys could be locked in the slammer for life and it would be ok fine.

Now if the Times has their way and the result is another attack which could have been prevented I am not so sure the American people will be thanking them.

Dictatorship my ass. If they want to see a dictatorship I suggest they go somewhere like Iran.

The above hissed in response by: Terrye [TypeKey Profile Page] at August 26, 2007 5:04 AM

The following hissed in response by: BarbaraS

The idiot defending lawyers are probably so full of BDS that they are happily doing pro bono work. Of course, this is an excellent way of obtaining future clients of the same type. These lawyers are trying to game the system by bringing up the TSP when these guys were caught red-handed. It is just a last ditch effort to find like-minded jurists to overturn the conviction and rule the TSP illegal.

The above hissed in response by: BarbaraS [TypeKey Profile Page] at August 26, 2007 5:44 AM

The following hissed in response by: David M

Trackbacked by The Thunder Run - Web Reconnaissance for 08/26/2007
A short recon of what’s out there that might draw your attention updated throughout the day…so check back often. This is a weekend edition so updates are as time and family permits.

The above hissed in response by: David M [TypeKey Profile Page] at August 26, 2007 7:50 AM

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