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The new attorney for accused Islamic terrorism fund-raiser Adham Hassoun is asking a federal judge in Miami to revoke a protective order that blocked the defense from publicly discussing the government’s wiretap evidence and allowed prosecutors to delay disclosing the names of possible witnesses. Hassoun’s original attorney, Fred Haddad of Fort Lauderdale, Fla., had gone along with the protective order last April. But with the addition of superseding indictments since then, Hassoun now believes the court’s order “is not in his best interest,” said his new attorney, Kenneth M. Swartz of Miami, in an interview. In court papers, government lawyers argue that the protective order should remain in force to safeguard witnesses in the government’s broader, long-running terrorism investigation involving many targets besides Hassoun. Those witnesses would be endangered if declassified wiretap summaries and transcripts provided to the defense were “disseminated at the wholesale discretion of the defendant,” government lawyers said. The dispute reflects the tremendous importance prosecutors and defense lawyers place on being able to make their case in the court of public opinion as well as in the courtroom. Last year, then-U.S. Attorney General John Ashcroft held a news conference and discussed the evidence against Hassoun. Swartz essentially argues the order blocks him from publicly responding. “A lawyer’s representation doesn’t stop at the courthouse door,” said Miami criminal defense lawyer Neal Sonnett, chairman of the American Bar Association’s task force on the treatment of enemy combatants. “Sometimes you have to respond.” A spokesman for U.S. Attorney Marcos D. Jimenez did not respond to a request for comment. There is no deadline for presiding U.S. District Judge Marcia G. Cooke to rule. Hassoun, a Lebanese national and former computer programmer in Sunrise, Fla., has been accused by the government of being a “terrorist” who had contact with al-Qaida leader Osama bin Laden. Last year, a federal grand jury indicted him on charges including conspiring to murder, kidnap and maim, and funding a “violent jihad” overseas. “Enemy combatant” and alleged “dirty bomber” Jose Padilla is one of two unidentified co-conspirators” in the Hassoun case, government sources have said. In court papers, Swartz told Cooke that the protective order, issued by Chief U.S. Magistrate Ann Vitunac, “prejudices” Hassoun’s ability to defend himself against charges that include conspiracy to provide material support to terrorists. The order lets the government hide the names of the witnesses until two weeks before the trial, which is scheduled for Sept. 19. “This case is going to be about witnesses who are cooperating with the government, and that means it’s going to rest solely on the credibility of witnesses who have deals,” Swartz said in an interview. “The government has investigated this case for years. But I’ll have two weeks to find out all about who these witnesses are. That’s a severe handicap.” Swartz also is attacking a provision in the protective order that prevents the defense from speaking publicly about extensive wiretap evidence. The government has made it available to the defense on condition that the defense not disclose it publicly. “Principles of due process and guarantees of a fair trial are subverted by any attempt to deny the defendant the right to discuss his case and the evidence against him,” Swartz wrote. “Denying the defendant a right to discuss the evidence against him is only steps away from denying the defendant a public trial.” In a reply last month, prosecutors said Swartz misinterprets the protective order the government sought. The order only prohibits the distribution of “physical materials,” like the Foreign Intelligence Surveillance Act transcripts, to anyone outside the defense team including “unindicted co-conspirators, media outlets (domestic and foreign) and the public at large,” wrote Assistant U.S. Attorney Russell R. Killinger in Miami and Stephanie K. Pell, a trial attorney in the Justice Department’s counterterrorism section in Washington, D.C. Killinger and Pell also argued that witnesses would be endangered if declassified wiretap summaries and transcripts provided to the defense were disseminated at the discretion of the defense. Prosecutors have supported the argument that witnesses are in danger by telling Cooke that Hassoun threatened to have a U.S. national, whom he suspected of being an agent for the United States or Israel, killed in Lebanon in 1997. “Hassoun stated, ‘The first person who sees her needs to make her disappear, and that’s it, no one mentions the subject,’” Killinger and Pell wrote, quoting part of a tape-recorded telephone conversation involving Hassoun. Swartz disputes the government’s evidence that Hassoun threatened a possible witness. He said the quote in the tape-recorded telephone conversation is “out of context and not what that conversation was about.” No evidence exists that his client is a menace, he said, declining to discuss the matter further because of the protective order. Sonnett, who is not involved in the case, said judges have “a reasonable amount of discretion” in deciding such disputes. But the bottom line is that the government must show that its concerns about public disclosure of evidence are legitimate.”Ken Swartz has every right to ask that the order be revoked and make the government convince the court that there is a real need for withholding evidence,” Sonnett said. Meanwhile, Hassoun remains jailed without bond in isolation at the Federal Detention Center in downtown Miami. In interviews last year with the Miami Daily Business Review, Hassoun, a leader in the Broward Muslim community, strenuously denied any involvement with terrorism. He did acknowledge casual friendships with several men now identified by Justice Department officials as terrorists, including Padilla and another ex-Broward resident, fugitive al-Qaida suspect Adnan G. El Shukrijuma. WILL PADILLA TESTIFY? Hassoun was born to Palestinian parents in Lebanon and had been living in the United States since 1989 with his wife and U.S.-born children. He was arrested at gunpoint in June 2002 by agents from the South Florida Joint Terrorism Task Force while driving near his Sunrise home. He was then charged solely with the noncriminal offense of violating the conditions of the visa he used to enter the country legally. In the months that followed, the government sought Hassoun’s removal from the United States in secret immigration court proceedings. In December 2002, based on a still-sealed FBI affidavit, U.S. Immigration Judge Neale Foster in Miami ordered his deportation on the grounds that he was a “terrorist” who “had contact” with bin Laden. Four times last year, a federal grand jury indicted Hassoun on escalating charges. The indictment says Hassoun uses the alias Abu Sayyaf, meaning “Bearer of the Sword.” A violent Muslim separatist group in the Philippines also uses the name Abu Sayyaf. Another defendant, Mohammed Hesham Youssef, also is charged in the case. Hassoun has said that Youssef is a U.S.-Egyptian dual national and former airline employee in Miami who is now in prison in Egypt. Sources say alleged co-conspirator Jose Padilla may testify against Hassoun. But Padilla’s court-appointed attorney, Donna Newman, said in an interview that she’s unaware of any such plans. “I know nothing about that case in Miami,” said Newman, a solo practitioner with offices in New York City and Newark, N.J.”He’s not charged in that indictment,” she said, “and I have had no conversations with the government responsive to his being a witness or not being a witness.” ‘LANDSCAPE HAS CHANGED’ When Hassoun was first indicted, Haddad represented him. Haddad has said he went along with the government’s gag demand in order to obtain immediate access to thousands of pages of national security wiretap evidence collected by federal agents under the Foreign Intelligence Surveillance Act. The protective order signed by Chief Magistrate Vitunac says the defense “shall not disclose or cause to be disseminated” any of the FISA intercepts. But with the addition of two superseding indictments since, “the prosecution landscape has changed,” Swartz said. Swartz may be able to score points with Cooke with his argument that while the Hassoun defense has been gagged, Ashcroft publicly discussed the evidence against Hassoun, Sonnett said. “This is going to be a very lengthy trial involving very, very serious charges,” Swartz said. “The government has a lot of resources. We just want the opportunity to get an even playing field.”

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