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In its own way, the federal prosecution of Sami Omar Al-Hussayen heralds a new generation of terrorism cases. The Saudi graduate student is currently on trial in an Idaho federal court for allegedly supporting terror groups by maintaining a number of radical Islamic Web sites. His case is one of the first to go to trial in the new legal landscape that emerged after the demolition of the infamous “wall” that kept intelligence information out of the hands of law enforcement. Attorney General John Ashcroft, in testimony last month before the Sept. 11 commission, blamed the existence of the wall for intelligence failures in the months leading up to the terrorist attacks. Prior to the passage of the USA Patriot Act in 2001, the existence of the wall prevented much of the information gathered by FBI agents under the Foreign Intelligence Surveillance Act — or FISA — from being shared with federal prosecutors and put to use in criminal cases. That’s all changed. Just as the government’s case against accused Sept. 11 conspirator Zacarias Moussaoui has raised novel issues related to a defendant’s right to potentially exculpatory witness testimony, Al-Hussayen’s case and the coming wave of terrorism prosecutions built on evidence obtained under FISA will test the ability of criminal courts to balance the due process rights of defendants against national security interests. According to figures released last month, the Foreign Intelligence Surveillance Court approved roughly 1,700 FISA applications in 2003 — an increase of 85 percent since 2001 — and more than the total number of wiretaps authorized by all state and federal courts combined during the same time period. For lawyers such as those representing Al-Hussayen, taking on a FISA case can seem like battling an unseen enemy. Material gathered through the act is classified and, unlike in a standard criminal proceeding, there are few established rules that dictate how much of that evidence must be disclosed to the defense. Even as Al-Hussayen’s trial got under way last month, his lawyers complained that they had been unable to wade through reams of evidence gathered as a result of FISA surveillance because the government resisted declassifying the material until days before trial. Beyond the expected disputes that arise in connection with searches and wiretaps in drug or organized crime cases, FISA surveillance creates dilemmas in discovery because evidence is highly classified and often in a foreign language. What’s more, the Classified Information Protection Act, or CIPA, which ordinarily governs the introduction of classified information as evidence in criminal proceedings, does not apply to certain elements of FISA surveillance. “Courts have grappled with these issues, but not on the scale they’re going to have to,” says Victoria Toensing of DiGenova & Toensing, who established the DOJ’s first terrorism unit while at the department in the 1980s. Toensing, who often defends the Justice Department’s controversial tactics in the war on terror, says she is uneasy with the choices that terrorism cases are foisting on trial courts. “I don’t like seeing these cases in the ordinary criminal courts,” Toensing says. “It’s going to mess up all the rights we have gathered over the years.” The attorney general appears to be somewhat less concerned. “The single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents,” Ashcroft told the National Commission on Terrorist Attacks Upon the United States on April 13. “Government erected this wall. Government buttressed this wall. And before September 11, government was blinded by this wall.” NEW TOOL FOR PROSECUTION Since the passage of the Patriot Act, FISA has become a far friendlier tool for law enforcement. Prior to the law’s enactment, material gathered through the act was mainly used for national security purposes — not as evidence in criminal prosecutions. The Patriot Act explicitly dismantled the so-called wall between law enforcement and intelligence and permitted agents running FISA wiretaps to coordinate and share information with criminal prosecutors. In 2002, the Foreign Intelligence Surveillance Court of Review upheld the authorization of FISA surveillance where a significant objective is criminal prosecution. Unlike in criminal cases that utilize ordinary wiretap evidence, defense lawyers in cases involving FISA material are barred from obtaining the applications and supporting materials prepared by the government to secure FISA warrants. As a result, defense lawyers are forced to argue motions to quash FISA evidence blindly, throwing out general objections in the hope that something sticks. “There is no way to effectively challenge or even know whether the original warrant was properly issued or whether the surveillance was in fact carried out within the scope of the warrant,” says Kate Martin, executive director of the Center for National Security Studies. “If you have FISA wiretaps and searches of peoples’ homes, there is never any after-the-fact, adversarial, judicial review of the propriety of those wiretaps or searches.” Legislation currently pending in the Senate would amend FISA to apply the same procedures that are set out in CIPA for handling classified information — procedures that would permit defense attorneys with security clearances to review the materials used in a FISA application. The provision is contained in the Protecting the Rights of Individuals Act, introduced by Sens. Ron Wyden (D-Ore.) and Lisa Murkowski (R-Alaska). In January, Ashcroft said the White House would veto the bill, if passed. Kenneth Bell, a former federal prosecutor in the Western District of North Carolina, says FISA applications already receive extensive judicial review. Last week, Bell argued a case involving FISA evidence before the U.S. Court of Appeals for the 4th Circuit, where the FISA application at issue had been reviewed by a FISA court judge, a federal magistrate, a federal district judge, and a three-judge appellate panel. “If six judges find that it was conducted for proper purposes, with probable cause, that should be some comfort to those who worry about an erosion of our civil liberties,” Bell says. TOO MUCH, TOO LATE Al-Hussayen, a graduate student at the University of Idaho, became a target of FISA surveillance in early 2002, according to court documents. During the surveillance of Al-Hussayen’s home phone, cell phone, home computer, and school computer, the Federal Bureau of Investigation accumulated an enormous volume of phone calls and e-mails. Al-Hussayen was initially charged in February 2003 with lying on his application for a student visa. A year later, the government added three additional counts of providing material support for terrorism. Among the government’s allegations: that Al-Hussayen operated Web sites that solicited donations on behalf of Hamas, a designated foreign terrorist organization. Of the roughly 30,000 FISA intercepts collected, the government planned to introduce just 66 into evidence. In total, government agents determined that 150 phone calls and 300 e-mails were pertinent to the investigation. But Al-Hussayen’s defense lawyers believed they were entitled to much more. At the heart of the dispute was the government’s standing obligation under Brady v. Maryland to turn over all potentially exculpatory material to the defense. In a normal wiretap case, that becomes less of an issue because conversations cannot be recorded if they are not relevant to the investigation. But in the permissive FISA context, all communications received through the wiretap are recorded to later be translated and reviewed, yielding an enormous volume of material, much of it personal and mundane. In the Al-Hussayen case, prosecutors claimed they had fulfilled their legal obligation by declassifying the FISA materials they considered pertinent and turning them over to the defense. The rest of the FISA information, including some 9,000 phone calls and 20,000 e-mails, most of them in Arabic, remained classified. The defense team had to obtain security clearances to view the documents. Al-Hussayen himself was denied access to the classified material altogether, even though the bulk of it consisted of his own statements. The defense estimated that it would take 25 to 50 translators to work through the reams of information, and largely ignored it. Four days before the start of trial, the government declassified almost all the disputed material, delivering three tapes and nearly 100 computer disks of information to the defense. Neither Al-Hussayen’s lawyers nor the U.S. Attorney’s Office in Idaho would comment on the proceedings, which are expected to last another several weeks. Despite the government’s making the disputed evidence available at the last moment, the Al-Hussayen case shows that FISA allows prosecutors almost complete control over the evidence defendants receive. Stanley Cohen, a New York lawyer who has represented several defendants in cases involving FISA, says he doesn’t trust the government to make that call. “If you have 3,000 hours of conversations recorded under FISA and 37 minutes of it is inculpatory, the rest of it is your client talking about children and food and bar mitzvahs and weddings and politics and religion, I should be able to introduce everything and let the jury decide the significance of those 37 minutes,” Cohen says. “It’s hard enough to get the government to turn over exculpatory material when evidence is not classified.”

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