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Attorneys representing two Muslim men implicated in an alleged case of money laundering for terrorism have filed a writ of mandamus petition with the U.S. Court of Appeals for the 2nd Circuit in an attempt to force the government to reveal whether the suspects were the targets of warrantless eavesdropping by the National Security Agency. The petition is rooted in a Jan. 17 New York Times article indicating that the warrantless surveillance program approved by President George W. Bush and carried out by the NSA was instrumental in the 2004 arrests of Yassin Muhiddin Aref and Mohammed Mosharref Hossain, both of Albany, N.Y. Aref and Hossain were caught in a sting operation after a Pakistani immigrant arrested on other charges posed as an arms dealer. It is alleged that the men agreed to launder money they were led to believe represented the proceeds from the sale of a missile launcher that would be used to perpetrate a terrorist plot in New York City. After the New York Times article, defense counsel asked the government to either confirm or deny that Aref was the subject of warrantless surveillance. They also asked New York federal Judge Thomas McAvoy to reconsider an earlier suppression motion. But in a sealed March 10 ex parte order that apparently rested on classified federal documents that have not been made available to the defense, McAvoy denied the motion. Late last month, Aref’s attorney, Terence Kindlon of Kindlon and Shanks in Albany, moved before the 2nd Circuit for a writ of mandamus. Kindlon contends that the government, by withholding classified information from him and Hossain’s attorney, Kevin Luibrand of Tobin & Dempf in Albany, has hindered the ability of defense counsel to prepare their case. Although both Kindlon and Luibrand have been granted security clearances, the government will not tell them if their clients were subjected to warrantless eavesdropping. Instead the government has apparently provided McAvoy with materials ex parte, which the judge has reviewed in camera. “Once again, courts must confront the issue of warrantless surveillance, and must decide once more whether to uphold fundamental liberties, or to allow them to erode away out of fear that we are no longer strong enough to sustain those freedoms upon which the nation was founded,” Kindlon argued in the petition. “Nothing could be more important than questions such as this.” In the petition, Kindlon is asking the 2nd Circuit to vacate all orders resulting from ex parte government submissions, permit security-cleared counsel to view unredacted government submissions, require the government to reveal whether there is warrantless surveillance material in this case, declare the NSA surveillance program unconstitutional, suppress evidence gleaned directly or indirectly from warrantless eavesdropping, and dismiss the indictment. The lead prosecutor in the case, Assistant U.S. Attorney William Pericak, declined to comment. Kindlon’s petition expresses frustration with the constraints imposed on the defense through the Classified Information Procedure Act, which permits prosecutors to file some evidence under seal in cases that may affect national security, such as this one. He said it is impossible for the defense to fulfill its role when the attorneys and their clients are relegated to the “sidelines.” “It is extremely frustrating for the defense to stand aside while, time after time, evidence is given to the Court, and the prosecutors meet with the judge, while the defense is completely excluded,” Kindlon said. “The sidelining of the defense in this case, through the unprecedented sweeping use of classification, is all the more troubling in light of revelations that the government often over-classifies information. . . . While there may be a good reason for the existence of classified evidence in this case, the record of the Bush Administration does not give reassurance that the information was classified for proper reasons.” JUDGE WILLING TO MEET Kindlon, a decorated Vietnam combat veteran and father of a captain in the Marine’s JAG Corps, acknowledged that McAvoy has offered to provide the defendants with an opportunity to meet with him ex parte so they can explain their defenses and he can determine what government submissions are necessary to the defense. But Kindlon complained that the defense cannot adequately prepare or articulate its theory if it does not know what evidence the government possesses. The government last month partially responded to a defense discovery-and-inspection request and revealed for the first time that Aref’s name and address was found in 2003 at a suspected Ansar al-Islam safe house in Mosul, Iraq, and that his telephone number was found three months earlier at a similar facility in Sargat, Iraq. Earlier the government had claimed that a document found at a terrorist training camp included Aref’s name with the notation “commander.” But that turned out to be an inaccurate translation; the word actually means “brother.” Kindlon noted that his client is a Kurd from northern Iraq and claimed that “it is not surprising for his name to be found in those areas” or that he would make phone calls to Iraq, where he still has family. But Kindlon adamantly insisted that Aref is neither a terrorist nor a terrorist sympathizer. “The District Court must provide the security cleared defense attorneys with, at the very least, a summary of the information submitted by the government, and of the information which formed the basis for the �classified’ orders,” Kindlon said. The trial is expected to begin in June. Aref remains in jail pending trial. Hossain is free on bond.
John Caher is a reporter for the New York Law Journal , the ALM publication in which this article first appeared. NYLJ reporter Mark Hamblett also contributed to this story.

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