Posted on 09/12/2003 10:14:41 AM PDT by bedolido
PORTLAND - The U.S. Attorney General's office has asked a federal judge to prohibit the Portland Seven defendants from viewing evidence used to obtain secret warrants, citing national security concerns.
The 36 secret warrants allowed FBI and other federal agents to intercept 271 conversations and bug the Portland-area home of at least one of the seven defendants.
Six men were indicted on charges they traveled to China in October 2001 in a failed effort to reach Afghanistan to fight U.S. troops. One remains a fugitive; another, Maher "Mike" Hawash, recently pleaded guilty and is cooperating with authorities. One woman was indicted on charges she helped fund the trip.
The defendants filed a motion Aug. 1 to suppress the evidence gathered with the secret court approvals.
They say using such evidence without giving them the ability to review and challenge the justification for the intrusions violates the due-process clause of the U.S. Constitution, among other things.
Prosecutors disagree, and U.S. Attorney General John Ashcroft has asked U.S. District Judge Robert Jones to review the materials in secret and to rule whether the government's requests to the secret court were justified.
Ashcroft's insertion into the case isn't a surprise because it's required by statute.
But it illustrates the power the federal government has and is willing to use to investigate suspected terrorism by Americans. It comes when debate about the expanded domestic spying powers granted by the USA Patriot Act is raging across the country.
Critics, both conservative and liberal, have criticized the government's post-9/11 tactics as infringing on privacy rights and personal freedoms long protected by the U.S. Constitution.
Lawyers for defendants have argued the secret warrants violated their clients' right to privacy.
Earlier, Jones had ruled that the basis for the warrants could remain secret.
Secret warrants have been in used by the FBI since 1978 for counterespionage work, such as monitoring foreign spies, but are specifically banned from criminal prosecutions. Their use was expanded to criminal cases under the Patriot Act.
The FBI says the secret warrants allow the agency to share intelligence information with criminal investigators in terrorism cases, and has stepped up use of the warrants since Sept. 11.
The legal challenge to this portion of the Patriot Act is farther along in Portland than elsewhere, legal experts have said, and may become a test case in appellate courts for the anti-terrorism legislation.
Accused sue:
Lawyers for two of the Portland Seven filed motions in federal court questioning the legality of the federal government’s methods in collecting evidence from an informant, electronic bugs and interviews with overseas witnesses.
Lawyers also demanded that the government’s evidence against October Martinique Lewis, Jeffrey Leon Battle, and Maher Mofeid Hawash be made available for inspection by the defendants.
The most compelling of the motions asks the federal court to suppress evidence gathered through electronic surveillance under an obscure provision of the Patriot Act, which was passed by Congress after the Sept. 11 attacks to stiffen the government’s ability to prosecute those planning or executing terrorist acts.
The attorneys, however, were not able to offer specific arguments for why the evidence should be dismissed — because the government has classified its reasons for collecting the information. The filing was three paragraphs long and said simply the evidence should be thrown out.
The motion challenging the Patriot Act came after the American Civil Liberties Union and Portland mosque Masjed As-Saber joined several litigants in a suit against the section 215 of the act, a controversial piece of legislation that gives the federal government sweeping powers to seize records without a subpoena or probable cause.
The Foreign Intelligence Surveillance Act, passed in the 1970s for counterespionage work, authorizes the collection of evidence through electronic surveillance. Before Sept. 11, authorities were prohibited from using FISA for criminal prosecutions. The act's powers were expanded to criminal cases through the Patriot Act.
At issue are 36 secret warrants that allowed the FBI to intercept, electronically, 271 conversations and bug Lewis' and Battle's Tigard home, according to court documents.
The FBI says the secret warrants allow the agency to share intelligence information with criminal investigators in terrorism cases, and has stepped up use of the warrants since Sept. 11.
Jack Ransom, attorney for Lewis, argued the secret warrants violated his client's rights to privacy under the Fourth Amendment of the Constitution. Ransom did not return a call to the Associated Press asking for comment Friday.
In 20 pages of motions, lawyers for Lewis and Battle also listed documents and evidence they wanted suppressed and released because information came from a questionable informant and coerced statements from Lewis.
Lewis and Battle are two of the so-called Portland Seven, who face various charges of conspiracy to levy war against the U.S., conspiracy to provide material support and resources to al-Qaeda, conspiracy to contribute services to al-Qaeda and the Taliban and possessing and discharging firearms in furtherance of crimes of violence.
The other members of the Portland Seven are Ahmed Ibraham Bilal, Muhammad Ibrahim Bilal, Patrice Lumumba Ford, and Habis Abdulla Al Saoub. They all worshipped at Masjed as Saber, federal authorities said. With the exception of Al Saoub, all six were arrested in the last two years by federal authorities. Al Saoub is believed to have fled overseas and is considered a fugitive.
Background:
One of the men charged with trying to fight U.S. soldiers in Afghanistan was secretly recorded saying that the leader of Portland's largest mosque funded the overseas trip with money that came from mosque members, according to a newly released FBI affidavit.
Battle as secretly recorded telling how Mohamed Abdirahman Kariye, religious leader of the Islamic Center of Portland, participated in a prayer session at the mosque with the group just before the men left, the affidavit said.
No charges have been filed against Kariye, who was sentenced last May to five years on probation after pleading guilty to using a fraudulent Social Security number and defrauding a state health insurance program for the poor by underestimating his income.
"They're not true," Mark Cross, Kariye's attorney, said of the allegations in the affidavit. "His biggest concern is his relationship with God and how his actions in this world will impact on his standing in the next. In that light, he can live with himself."
Prosecutors and investigators have long suspected that a larger group was behind the efforts of the Portland Seven.
The affidavit by Portland FBI agent Mark McBryde relies heavily on excerpts from recorded conversations between a government informant and two defendants. Most excerpts come from Battle, who defense attorneys have said in court filings was boasting and exaggerating when talking to the informant.
The affidavit said Battle described the Portland mosque as "the only mosque to teach about jihad" and that Kariye told his followers they should fight with other Muslims in Afghanistan against Americans. Battle said he had "talked to Kariye about jihad," the affidavit said.
Another defendant, Patrice Lumumba Ford, told the informant that Kariye "has spoken out very strongly for jihad," the affidavit said.
Battle also described how the trip was financed. He told the informant that Habis Al Saoub, a Jordanian who remains a fugitive, "approached Kariye regarding financing for the trip by the jihadists." Battle said Kariye gave Al Saoub $2,000 for each of the men and the money was acquired from members of the mosque.
Later, after his arrest, Battle told investigators that he got $2,000 from Al Saoub, and he believed the money came from "brothers" at the Portland mosque.
More background:
In August, a federal judge approved a change in lawyers for one of the Portland Seven.
U.S. District Judge Robert Jones warned Ford that his new attorney, Stanley Cohen, could face a potential conflict of interest because he had earlier represented a Muslim religious leader now under investigation for an alleged role in the conspiracy.
Jones told Ford that Cohen may have to cross-examine Abdirahman Kariye in order to defend Ford, setting up the potential for divided loyalties between his current and former clients.
Cohen was his attorney in the case, and had repeatedly criticized the Bush administration for prosecuting Kariye, a respected Muslim cleric at the only mosque with a full-time imam among the six mosques in the Portland metro area.
The judge noted that Kariye is now under investigation for a suspected role in the alleged conspiracy to aid terrorism in Afghanistan.
But Ford told Jones in court on Friday he saw no potential for a conflict of interest, and even if there was the possibility, "I'll do whatever is necessary to substitute counsel."
Kariye was also in court, represented by a new attorney, and he agreed with Ford that there was no conflict of interest.
Jones again warned both Ford and Kariye they would not be allowed to raise the issue if either one decides to appeal their cases, then approved the substitution.
Ford had been represented by Portland attorney Whitney Boise, who also had recommended that Cohen take over the case.
Ford has pleaded innocent to charges of conspiracy to wage war against the United States, conspiracy to provide material support to al-Qaida and conspiracy to contribute services to al-Qaida and the Taliban. He also has pleaded innocent to firearms and money laundering charges.
He faces trial with five other people accused of conspiring to travel to Afghanistan and aid the Taliban in 2001.
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