The New York Times reports this morning that attorneys for some of the nation's most high-profile terrorism defendants plan to file legal challenges to determine whether the government used illegal warrantless wiretaps to nab their clients. These challenges could lead to the unraveling of convictions against admitted terrorists, as well as civil penalties against the president -- which is probably not exactly the sort of result George W. Bush expected when he launched his new kind of war on terrorism.
As the Times notes, officials defending the National Security Agency's wiretapping program have repeatedly pointed to its use in the conviction of Iyman Faris, an Al Qaeda associate who confessed to taking part in a plan to blow up the Brooklyn Bridge. Now Faris's lawyer, David Smith, tells the paper that he plans to ask a court to determine whether the information obtained from the eavesdropping program should have been disclosed during the course of the case against Faris. Smith says he's also considering suing Bush, arguing that Faris was the target of an illegal program ordered by the president.
Lawyers for men who have been charged with Jose Padilla, the "enemy combatant" whom the administration once called a dirty bomber but now believes was far less dangerous, also plan to question whether illegal wiretaps were used to gain information on their clients.
And then there's the case against Ali al-Timimi, a Muslim scholar now serving a life sentence for encouraging followers to wage war against the United States. Edward MacMahon Jr., Timimi's lawyer, tells the Times that he'd always been suspicious of how the government came to suspect his client in the immediate aftermath of the 9/11 attacks -- months before it obtained a warrant from the Foreign Intelligence Surveillance Court to wiretap his conversations. "They told me there was no other surveillance," MacMahon tells the Times. "But the fact is that the case against a lot of these guys just came out of nowhere because they were really nobodies, and it makes you wonder whether they were being tapped."
You might say this is all just defense counsel posturing -- after all, defendants in sticky situations will look for any straw to grasp. But there's one thing in the Times report that should give apologists for the Bush administration pause: Even lawyers in the Justice Department, speaking anonymously, say they're concerned that the NSA wiretaps "could create problems for the department in terrorism prosecutions both past and future."
Here's how one prosecutor put it: "If I'm a defense attorney, the first thing I'm going to say in court is, 'This was an illegal wiretap.'" And for the prosecutors fighting alleged terrorists across the land, those probably aren't very welcome words.