NSA Wiretaps—Court Review

US District Court Judge Leonie M. Brinkema—the same judge overseeing the Moussaoui trial—will be conducting an inquiry into whether the NSA illegally wiretapped a Muslim cleric “who was sentenced to prison last year for inciting his Muslim followers to violence.”^[1] This decision has been made as Ali al-Timimi appealed his conviction to the Fourth Circuit Court of Appeals, which has directed Judge Brinkema to conduct a rehearing with broad latitude to “order whatever relief of changes in the case, if any, that [she] considers appropriate.”^[2]

The Appeals Court “said it sent the case back in part because attorneys for [Mr.] al-Timimi have raised concerns that the government has ‘undisclosed intercepts.’”^[3] It is the hope of Mr. al-Timimi’s lawyer that Judge Brinkema will hold “public hearings that will explore the NSA program and whether his client was wiretapped without a warrant.”^[4] If so, an argument could be made that Mr. al-Timimi’s fourth amendment rights were violated, voiding the conviction.^[5]

Part of the reason it is suspected that Mr. al-Timimi was spied on by the NSA is because he frequently made overseas phone calls.^[6] The other reason is because an apparent misstep in a different trial involving “Suliman al-Buthe, a central figure in [Mr.] al-Timimi’s trial.”^[7] During that trial, “government attorneys … revealed by accident … that al-Buthe’s conversations were secretly monitored and intercepted by the NSA.”^[8] A legally intercepted conversation between Mssrs. al-Timimi and al-Buthe was played at Mr. al-Timimi’s trial, but, according to his lawyer, if “the U.S. government had secretly intercepted conversations involving al-Buthe—and failed to turn them over to al-Timimi’s defense attorneys—that would be ‘a serious violation of federal law.’”^[9] Mr. al-Timimi’s prison conditions are also to be evaluated; according to his lawyer, Mr. al-Timimi “has been transferred to a half-dozen prisons over the past six months—usually after the attorney told prison officials he wanted to meet with his client.”^[10]

Evidence obtained under FISA can be used in criminal prosecutions, but “the investigation of criminal activity cannot be the primary purpose of the surveillance. … The act is not to be used as an end-run around the Fourth Amendment’s prohibition of warrantless searches.”^[11] This standard has been relaxed when terrorism is alleged.^[12] Furthermore, by the terms of FISA, electronic surveillance without a court order “to acquire foreign intelligence information for periods of up to one year” can be conducted, as long as the Attorney General certifies in writing under oath, that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”^[13] Of course, the warrantless domestic spying program that has been in the news so much lately is being rationalized by the administration as being necessary and authorized by Congress under the Authorization of Use of Military Force.

If the information is to be used against the individual in court, however, the government must “prior to the trial … notify the aggrieved person and the court … that the [g]overnment intends to so disclose or so use such information.”^[14]

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[1] Eric Lichtblau, Cleric Wins Appeal Ruling Over Wiretaps, NY Times, Apr. 26, 2006.
[2] Id.
[3] Jerry Markon, Va. Terror Case Sent Back to Lower Court, Wash. Post, Apr. 26, 2006.
[4] Id.
[5] Id.
[6] Id.
[7] Toni Locy, Judge to Probe if NSA Spied on Scholar, Associated Press (via Yahoo!), Apr. 25, 2006.
[8] Id.
[9] Id.
[10] Id.
[11] United States v. Johnson, 953 F.2d 565, 572 (1st Cir. 1991).
[12] See, e.g., In re Sealed Case No. 02-001, 310 F.3d 717, 726 (For. Int. Surv. Ct. Rev. 2002); United States v. Rahman, 861 F. Supp. 247 (S.D.N.Y. 1994).
[13] 50 U.S.C. § 1802(a)(1)(B).
[14] Id. § 1806(c).