What if the White House is wrong about spying? A real-world example

Federal judge requires Justice Department lawyers to say whether NSA monitoring played a role in assassination plot conviction.

Published February 22, 2006 2:33PM (EST)

When Alberto Gonzales appeared before the Senate Judiciary Committee earlier this month, Sen. Ted Kennedy asked him a series of critical questions about the Bush administration's legal justifications for warrantless spying: What if you're wrong? If it turns out that the president doesn't have the power to order warrantless spying in violation of an act of Congress, wouldn't that expose U.S. intelligence agents to the risk of prosecution? And wouldn't it give suspected terrorists a defense to their own prosecutions?

Gonzales didn't have much of an answer, except to insist that he was sure that the Bush administration wasn't wrong.

A federal judge in Virginia has just shown why it matters. U.S. District Judge Gerald Bruce Lee has just postponed the sentencing of Ahmed Omar Abu Ali -- a man convicted of joining al-Qaida and plotting to assassinate George W. Bush -- so that his lawyers can explore whether the government obtained evidence against him through the use of illegal wiretaps.

As the Associated Press reports, federal prosecutors say they don't know that evidence obtained through NSA monitoring was used to build the case against Abu Ali, but that they don't know that it wasn't, either. Lee has ordered them to produce a sworn declaration from a government official saying one way or the other.

Lee hasn't said how he'd rule if he learns that warrantless spying was involved in Abu Ali's case, but he's making it clear that Abu Ali's lawyers would be entitled to argue, at least, that his constitutional rights were violated and that his conviction should be dismissed if it was.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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