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Government surveillance of indicted attorney Lynne Stewart and her co-defendants was properly conducted under the Foreign Intelligence Surveillance Act, a Southern District judge ruled Monday. Judge John G. Koeltl upheld the use of wiretaps and other surveillance during the investigation of Stewart’s client, imprisoned Sheik Omar Abdel Rahman, and his attempts to maintain contact with his followers in the alleged terror organization Islamic Group. In doing so, Koeltl dealt a setback to a defense team that only two months ago had scored a major victory in the case. In July, Koeltl had dismissed two counts in the indictment charging Stewart, Ahmed Abdel Sattar, Yassir Al-Sirri and Mohamed Yousry with providing material support and resources to the Islamic Group. Following the July ruling, the remaining counts of the indictment charged Sattar and Al-Sirri with soliciting crimes of violence; Sattar, Stewart and Yousry with conspiring to defraud the United States; and Stewart with making false statements. The defense had hoped to undermine those charges by winning suppression of the evidence seized under the federal Foreign Intelligence Surveillance Act (FISA). Judge Koeltl denied that motion Monday in a 54-page ruling in U.S. v. Sattar, 02 Cr. 395. More than 85,000 audio recordings of voice calls, faxes and computer transmissions were made by the government during its seven-year investigation as it worked to build a case that Stewart and the three men were conduits for the sheikh to his terrorist followers, and helped him, among other things, to communicate to them his desire for a resumption of terror attacks. The defendants argued before Koeltl that the government violated the U.S. Constitution and procedures under FISA, 50 U.S.C. � 1801 and following, and that evidence obtained in the surveillance should be not used at trial. Judge Koeltl first turned aside the request of Stewart and Sattar that the government disclose the materials it provided to the FISA court in its applications for wiretapping and other surveillance. Koeltl said the sealed classified materials provided to him by the government, which he reviewed ex parte and in camera, “fully” supported the assertion of Attorney General John Ashcroft that disclosure of the materials would damage the security interests of the United States. The judge said he was “satisfied that all of the requirements of FISA and that each of the FISA surveillances was authorized by a FISA Court order that complied with” the statute. The judge then rejected claims that the targets, Sattar, Yousry and unindicted co-conspirator Rahman, could not be the subject of FISA surveillance because they were not acting as “agents of a foreign power.” He said there was “ample evidence” of probable cause they were working for a foreign power, which is defined to include “a group engaged in international terrorism.” And the judge called “without merit” Stewart’s argument that the FISA surveillance was conducted improperly as part of a domestic criminal investigation, finding that “all of the surveillance at issue was conducted with the appropriate purpose.” Stewart had also argued that she should not have been a target of FISA surveillance because she is a U.S. citizen. But Judge Koeltl said that “she was never designated as a target in any of the applications” made under the act. Stewart also moved to suppress 20 videotapes of meetings between herself, Yousry and Abdel Rahman at a prison facility in 2000 and 2001. But the judge said Stewart “simply ignores the cases … that have squarely held that surveillance authorized and conducted in accordance with FISA does not violate the Fourth Amendment rights of those whose communications are intercepted.” Koeltl ruled that Stewart did not have standing to challenge the government’s desire to disclose to Sattar telephone conversations and audio recordings of meetings between Abdel Rahman and his legal team, including Stewart and Yousry, her translator. Also at issue were a series of notebooks kept by Yousry. The materials have been reviewed by a government “taint” team that is “walled-off” from the prosecutors in the case. The team is assigned to search for possible attorney-client privilege materials, attorney work-product or exculpatory material the government is obligated to provide to the defense. Stewart wanted disclosure of the material, its sequestration from the government trial team, a return of all attorney work product, suppression of the material, appointment of a special master to review government claims of access to it, and an evidentiary hearing on those issues. But Koeltl said that “while Sheikh Abdel Rahman has refused to waive his privilege he has not interposed any reasoned opposition to the Government’s motion arguing the importance of preventing access to Sattar to these documents, nor has he requested the relief Stewart now seeks.” The judge said he would review redacted copies of the materials to determine whether certain materials should be withheld “when evidentiary privileges or other legal principles do, in fact, apply.” Assistant U.S. Attorneys Robin Baker and Christopher Morvillo represented the government. Stewart is represented by Michael Tigar. Sattar is represented by Kenneth Paul. David Stern and David Ruhnke represent Yousry. Al-Sirri, who is in custody in Great Britain, did not take part in the motions.

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