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Federal Judge Denies Terrorism Suspect Access to Secret Evidence
The National Law Journal
A Boston federal judge has denied accused terrorism sympathizer Tarek Mehanna's motion to suppress Foreign Intelligence Service Act evidence and a motion to compel production of exculpatory evidence.
U.S. District Judge George O'Toole Jr. ruled on Friday that "the information obtained in accordance with those orders are classified as secret or top secret. Neither the defendant nor his counsel have had access to those classified documents."
In a four-page order, O'Toole made 11 findings indicating why the Foreign Intelligence Surveillance Court properly issued the FISA search and surveillance orders, based on his in camera review of the documents.
"The Court recognizes the defendant's difficulty in making such a preliminary showing where the defendant has no access to the confidential FISA-related documents here," O'Toole wrote. "Nevertheless, Congress has established mechanisms to balance a defendant's desire to access confidential information with the government's interest in protecting the national security by maintaining the confidentiality of classified government documents."
In a separate order, O'Toole denied Mehanna's motion to compel production of exculpatory evidence, including Mehanna's communications with al-Qaida representatives and regarding whether there were terrorist training camps in Yemen at the time Mehanna visited that country.
O'Toole denied without prejudice Mehanna's motion to compel exculpatory evidence about government witness interview notes that might undercut any witness's credibility.
Mehanna attorney J.W. Carney Jr. of Boston's Carney & Bassil said he had expected the rulings because in similar cases every federal court "has refused to let anybody see any national security documents."
"The court is not requiring the government to tell us why they thought our client was the agent of a foreign power and therefore could be the subject of FISA search warrant," Carney said.
Mehanna was a 27-year-old pharmacist living with his parents in the upscale Boston suburb of Sudbury, Mass., at the time of his November 2008 arrest on charges of making a false statement to a federal officer in domestic or international terrorism matter. He was arrested at the airport, as he was about to leave for Saudi Arabia for a pharmacy job. At the time, he was a recent Massachusetts College of Pharmacy and Health Sciences graduate.
He was released that December, but charged in a November 2009 indictment with making false statements, conspiracy to provide material support to terrorists, providing or attempting to provide material support to terrorists, conspiracy to kill in a foreign country and conspiracy to make false statements.
Carney said Mehanna has been held in solitary confinement.
According to the most recent indictment, filed in June 2010, the government has accused Mehanna of watching violent jihad videos with individuals with terrorist ties and discussing "efforts to create like-minded youth in the Boston area."
He was accused of discussing attending a terrorist training camp in Iraq and going to Yemen in February 2004 to attend such a camp.
The indictment claimed that Mehanna created and/or distributed videos and written materials promoting terrorism in 2006 and sought Internet links to tribute videos about the hijackers who orchestrated the Sept. 11, 2011, terrorist attacks.
The government charged Mehanna with distributing a video in July 2006 that depicted the aftermath of retaliation against U.S. personnel in Iraq following the report of a rape committed by a serviceman.
The indictment claimed that Mehanna gave false information to the Federal Bureau of Investigation's Joint Terrorism Task Force in December 2006.
The Boston U.S. Attorney's Office and the Justice Department's National Security Division, which is also involved in the prosecution, declined to comment.
Mehanna's trial is scheduled for Oct. 3.