http://www.dailypress.com/news/local/virginia/dp-dc—terror-paintball0516may16,0,6552723.story
ALEXANDRIA, Va. - A federal judge Friday said the government is abusing its discretion to classify documents in the case of a U.S.-born Islamic scholar from Virginia who was convicted of soliciting treason.
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In a recently unsealed defense motion, al-Timimi’s lawyer, Jonathan Turley, said it is obvious that the government was running wiretaps on al-Timimi after Sept. 11 because he was long suspected by the U.S. government of having ties to al-Qaida and Osama bin Laden. Despite that, Turley says the government is claiming it has no relevant wiretap recordings from any time between Sept. 11, 2001, and Feb. 1, 2003.
The evidence that Dr. al-Timimi was subject to undisclosed surveillance is obvious,” Turley wrote, citing the fact that al-Timimi was interviewed by the FBI in 1994 in its investigation of the first World Trade Center bombing, as well as the fact that al-Timimi was explicitly mentioned in the notorious Presidential Daily Briefing of August 2001 titled “Bin Laden Determined to Strike in US.”
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Turley is mostly operating in the dark about what the government has in its possession, though, because the government has been communicating in secret with the judge about what evidence exists. Turley has been excluded even though he holds top security clearances.
At Friday’s hearing, U.S. District Judge Leonie Brinkema said Turley has been unfairly excluded from information he should have, and that the government is improperly marking some evidence and legal motions as classified.
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She said she will have a meeting with prosecutors and intelligence agencies to hammer out what information can be disclosed to the defense and what might be able to made public”
“Some of the material claimed to be classified cannot be claimed as classified under any rational system,” Brinkema said.
Turley said he appreciated Brinkema’s efforts to grant him access to information, but he bristled at her suggestion that he might only receive redacted versions of some documents.
“I’ve had (top-level security clearances) since the Reagan administration,” he told Brinkema.
Comment:
Under one way of thinking, it is not rational to classify it given that it is disclosed here:
Sheiks and Bioweaponeers
http://www.anthraxandalqaeda.com
Most intelligence information is open source. But the government deems that even where information is already out there, it is the government corroboration that makes the difference. Fair enough — except don’t think for a minute the bad guys are fooled. It’s only the public that is being misdirected.
Professor Turley blogs today (”Court Rules with Defense on Access to Classified Material in the Case of Dr. Ali Al-Timimi”):
“Due to the classified status of the case, I have been limited in what I can report about the progress in the case of Dr. Ali Al-Timimi. However, today’s hearing was public and thus some additional information can be disclosed.
Today was a very positive day for the defense. We have been trying for two years (since a remand from the Fourth Circuit) to gain access to material that we believe was withheld by the government during the trial. This material includes interceptions and other forms of evidence conducted under national security programs. In November, Judge Leonie Brinkema threatened to order a new trial for Dr. Al-Timimi in light of the government’s refusal to give me, as lead counsel, access to ex parte material.
Today, the government sought to end the case after completing its own review of material — without giving the defense (which includes Will Olson from Bryan Cave) access to any of the material. We filed papers seeking such access. Judge Brinkema refused and ruled with the defense that access must be given. She further threatened again that she is considering a new trial unless things change.
Notably, Judge Brinkema confirmed that the government had used classification to hide purely legal argument — an abuse of such rules. She noted that much of the ex parte filing is composed of legal argument without any possible claim that it is classified. That would be a flagrant abuse of ex parte rules and it is precisely what the defense has warned about: the use of these filings to avoid the adversarial process. She noted that I have a clearance and should be able to see the material. She ordered a conference with the government and the security officer to arrange for such a disclosure. She, however, declined our request that Will Olson be given access with me due to the government’s concerns over the sensitivity of the material and limiting those with access to the fewest possible individuals.”
Note: It was Will Olson who I called and asked whether he and his firm had considered this question whether there was an appearance of a conflict of interest (which is different from a conflict of interest) due to the fact that his distinguished co-counsel’s father had pled the Fifth in leaking information about the “POI” of the other FBI investigative squad that derailed public understanding of Amerithrax investigation (if not the investigation itself). A “POI” of the other squad, according to Professor Turley was none other than Al-Timimi. Much of the classified information the USG does not want defense counsel to see relates to wiretaps gathering evidence for the Amerithrax investigation. No one is doubting the good faith of any of these attorneys — not even the fellow who worked for blind sheik Abdel-Rahman who arranged the pro bono assistance for the Virginia Paintball defendants (and presumably Al-Timimi).*/ Certainly they are all very accomplished and playing an important role in ensuring constitutional safeguards are protected. But the appearance of conflict regulations are part of the equation and administration of justice too — and no one should be dismissive of the issue unless they have read Mr. Seikaly’s deposition from last Fall and understand the importance of the leaks. There is a lot that goes on within the beltway involving the revolving door that to the rest of America creates an appearance of a conflict of interest.
It really, first, is a question for the relevant partners at Bryan Cave to consider after informing themselves of the background of the leaks (by reading Mr. Seikaly’s deposition).
*/ “The Go-To Lawyer of ‘Northern Virginiastan,’” ABA Journal, September 2007
http://www.abajournal.com/magazine/the_go_to_lawyer_of_northern_virginiastan/