Kenders' Musings

Crossposted at Stop The ACLU

Why does the ACLU seek FOIA files on the NSA Surveillance program? Perhaps this can shed a little light on the subject.

We could all see this coming.

Back in December, Iyman Faris, the only named American target of the National Security Agency's secret warrantless wiretap program announced his consideration of a lawsuit against the president of the United States. To accomplish this goal, his lawyer David Smith issued an all points bulletin for civil liberties attorneys and constitutional scholars interested in taking up his client's case.

The offer comes at a time of concern among civil liberties attorneys, who worry that the courts may never get a chance to adjudicate the legality of President Bush's secret wiretap program. "Courts don't like to hear hypothetical matters," said Barry Steinhardt, director of the ACLU's Technology and Liberty program, who has been preparing for a court battle. "There has to be a real plaintiff with a real injury."Source

Despite Faris' admitted guilt, civil libertarians were chomping at the bit to get him off the hook.

In many ways, Faris is not an ideal plaintiff for attorneys who hope to focus their case on whether the president abused his authority by spying on innocent Americans. Faris' guilt is widely acknowledged, despite his recent claims of innocence. Among the evidence against him, prosecutors alleged that he sent a message to al-Qaida leadership in 2003 claiming that "the weather is too hot," a signal that he could not follow through with his Brooklyn Bridge plan.

But if civil libertarians wait for the perfect case, they may have to forgo a legal challenge altogether. The targets of the secret NSA program are classified, and barring additional leaks, it is unclear how innocent American citizens would discover that they have been monitored. "The reality is that the people in Fourth Amendment cases are rarely the people you would invite over to dinner," said Chris Hoofnagle, senior counsel to the Electronic Privacy Information Center.

The ACLU's Steinhardt said he welcomed a phone call from Smith. "A likely route to this challenge is in the context of a criminal case," he said.

So it is no suprise that yesterday, Faris' lawyer asked a Federal judge to throw out his case due to the fact that he was spied on.

Iyman Faris' challenge is among the first to seek evidence of warrantless electronic eavesdropping by the National Security Agency, a practice that began after the terrorist attacks of Sept. 11, 2001. Government officials have reportedly credited the practice with uncovering Faris' terrorist plot and several others.

A motion filed by Faris' attorney David Smith in U.S. District Court in Alexandria, Va., argues that investigators improperly obtained evidence against Faris and that his trial lawyer was ineffective.

Given the likelihood that Faris' phone conversations or e-mails had been electronically monitored, Faris' trial lawyer, Frederick Sinclair, should have asked for evidence of such surveillance, Smith said in the motion.Source

Nevermind the fact that Faris pleaded guilty to conspiracy and aiding and abetting terrorism, he is now backtracking on that. He now says his guilty plea was false.

And there are others trying to get their terror convictions overturned.

A lawyer for Ali al-Timimi, an Islamic scholar in northern Virginia serving a life sentence for exhorting followers to fight U.S. troops, has said he plans to challenge his case based on NSA involvement. So has an attorney for Adham Amin Hassoun, a Lebanese-born Palestinian living in Florida who is charged with being part of a cell dedicated to supporting violent Muslim extremists.

Anyone see a trend emerging?