Warrantless wiretapping has managed to duck significant judicial review. Until now.

January 30, 2014


Jamid Muhtorov was indicted in January 2012 for allegedly making plans to travel overseas and fight on behalf of the Islamic Jihad Union (IJU), a designated foreign terrorist organization. In October, he became the first defendant to be informed that the case against him was built on information obtained via warrantless surveillance under the FISA Amendments Act. Now, he’s challenging the constitutionality of that surveillance.

It’s a significant development. For years, the government has successfully ducked judicial review of the program outside of the secretive Foreign Intelligence Surveillance Act Court by arguing that the people filing lawsuits couldn’t prove that they had been spied on. But with the notification to Muhtorov, that strategy won’t work any more, making his case an almost unavoidable test of the constitutional merits of warrantless wiretapping.

Last year, the Supreme Court dismissed an earlier challenge to the FAA brought by the American Civil Liberties Union on behalf of a coalition of human rights, media and legal organizations. In its opinion, the high court agreed with the government that the groups couldn’t sue because they had no proof that they were subject to the surveillance they alleged. But a crucial part of the ruling was the government’s claim that there was someone else who would be able to challenge the law’s constitutionality: criminal defendants. The Justice Department said that if it ever used data collected using FISA in a criminal prosecution, it would alert the defendants of this fact, allowing them to raise constitutional concerns.

There was just one problem: The government wasn’t actually telling defendants that they had been subject to warrantless surveillance. In fact, the ACLU’s Patrick C. Toomey notes that at the time last year’s case was argued before the high court, “no criminal defendant had ever received notice of FAA surveillance in the five years since the FAA had been enacted.”

Eventually, the Justice Department decided that keeping the information from defendants any longer “could not be justified legally,” and Muhtorov and another defendant who had been convicted received notification about how the FAA was used in developing the cases against them. And now, Muhtorov’s lawyers and the ACLU have filed a motion for suppression of evidence, making a constitutional case against the law:

The FAA violates the Fourth Amendment because it authorizes surveillance that violates the warrant clause and, independently, because it authorizes surveillance that is unreasonable. The statute also violates Article III by requiring judges to issue advisory opinions in the absence of a case or controversy. The procedural deficiencies of the FAA render the statute unconstitutional, and they render the surveillance of Mr. Muhtorov unconstitutional as well.

Washington Post: http://www.washingtonpost.com/blogs/the-switch/wp/2014/01/30/warrantless-wiretapping-has-managed-to-duck-significant-judicial-review-until-now/

Washington Post: http://www.washingtonpost.com/world/national-security/terrorism-suspect-challenges-warrantless-surveillance/2014/01/29/fb9cc2ae-88f1-11e3-a5bd-844629433ba3_story.html

Veils in court: judges to be given guidance, says lord chief justice

November 5, 2013


The most senior judge in England and Wales has disclosed plans to launch a consultation on whether veils can be worn in court as he warned the issue had become highly divisive.

At his first press conference since taking up his judicial post last month, the lord chief justice, Lord Thomas of Cwmgiedd, also suggested that in future criminal defendants might be able to take part in preliminary hearings from home via Skype or FaceTime video systems on their computers.

The former justice secretary, Ken Clarke, at the weekend stirred the controversy over the niqab by declaring that a fair trial could not take place if a defendant is “in a kind of bag”. In September, a judge ruled a Muslim woman would be allowed to stand trial while wearing a full-face veil but said she must remove it while giving evidence.

Thomas said: “The best way for dealing with this matter is to make a practice direction … The basic principle will be that it must be for the judge in any case to make his own or her own decision but we will give clear guidance.

Asked if he envisaged defendants appearing from home, he said: “I can see it happening for pre-trial hearings – whether one could go any further would depend – but certainly pre-trial hearing stage is one place we have to make changes.” We have to look at solutions that are innovative and will bring down the cost of litigation because we can’t afford to go on as we once did.”


The Guardian: http://www.theguardian.com/world/2013/nov/05/veils-court-judges-skype-lord-chief-justice

CAIR to File Complaint Over MN Judge’s Questioning on ‘Sharia’

(WASHINGTON, D.C., 5/17/13) — The Council on American-Islamic Relations (CAIR), the nation’s largest Muslim civil rights and advocacy organization, said today that it plans to file a complaint against a Minnesota judge who inappropriately questioned defendants on their religious beliefs and equated mainstream Islamic principles with terrorism.

Before sentencing two Muslim women to lengthy prison terms yesterday, U.S. District Judge Michael Davis asked each woman if she supported “jihad, suicide bombings and Sharia law.” Judge Davis also asked, “Does she understand there are some Muslim women who wear dresses or short skirts?” Davis said he was trying to decide whether the defendants would “support terrorist causes” when they are released from prison. The questions reportedly drew audible reactions in a courtroom packed with Muslim spectators.

“It is misguided and unethical for a judge to reference an individual’s general support of mainstream Islamic principles, known as Sharia, during sentencing to determine a defendant’s future dangerousness,” said CAIR Staff Attorney Gadeir Abbas. “By also linking modest dress to a propensity for violence, the judge revealed a disturbing bias that may have impacted his decisions in this case and his sentencing of the defendants.”

Abbas said CAIR would file a complaint based on the Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351-364, and Rules for Judicial-Conduct and Judicial-Disability Proceedings, 248 F.R.D. 674 (2008).

He added that CAIR’s complaint will not deal with the specifics of the cases or the charges against the defendants, but with the action of the judge in inappropriately questioning the defendants on their views about Sharia and modest attire, both of which are irrelevant to their cases.

Mosque in a High Security Court for Mafia Killings? Ok Imam

April 21, 2013

Florence – A Mosque in a high security court created for terrorism trials, which was used for the specific trials of the Monster of Florence, Pietro Pacciani who along with 3 other killed almost 16 people and Giovanni Brusca who was responsible for killing a famed judge in 1993 for the judge’s harsh stance on the mafia during the clean hands movement. The Islamic movement in Florence is prepared to acquire the property, according to Imam Izzedin Elzir. This is the same complex that heard from the famous defendants Pacciani and Brusca.

3 California men plead not guilty in terror plot case; ringleader returned from Afghanistan

RIVERSIDE, Calif. — A man suspected of being the ringleader of a plot to kill Americans and bomb U.S. military bases overseas has been returned from Afghanistan, authorities said Wednesday.

American Sohiel Omar Kabir, 34, made his first court appearance Tuesday in the U.S. after he was captured by U.S. special forces in Afghanistan last month, said his attorney, Deputy Federal Public Defender Jeffrey Aaron.

Kabir has not yet entered a plea after being charged with conspiracy to provide material support to terrorists. He is being held without bond and scheduled to appear in court Dec. 11.

Meanwhile, Ralph Deleon and Arifeen Gojail, both 21, and Miguel Santana Vidriales, 23, pleaded not guilty Wednesday after being indicted on the same charge.

If convicted, each of the four defendants could face up to 15 years in prison.

Deleon, Vidriales and Gojali were arrested as they waited to board a plane headed for Istanbul on their way to Afghanistan to meet with Kabir, authorities said.

Kabir, a naturalized U.S. citizen from Afghanistan, served in the Air Force from 2000 to 2001 and introduced Deleon and Santana to radical Islamic doctrine, investigators said. Gojali, also a U.S. citizen, was recruited in late September.

Experts who study homegrown terrorism said the case highlights the susceptibility to radicalization of new converts to Islam, particularly among the young.

Judge adjourns weeklong hearing in Sept. 11 case at Guantanamo without ruling on major issues

GUANTANAMO BAY NAVAL BASE, Cuba — A weeklong hearing into the legal framework for the Sept. 11 terrorism military tribunal came to an end Friday without a ruling on the most significant motions but progress on some issues that must be resolved before the eventual trial.

After hours of often arcane debate at the U.S. base in Cuba, the military judge presiding over the case deferred most decisions until later. Notable among them were proposed rules for handling classified evidence that prosecutors said are necessary to protect national security and defense lawyers argued are overly broad and restrictive.

Army Col. James Pohl heard arguments on nearly 20 motions and did resolve some matters, including issuing a ruling that the five men charged with planning and aiding the Sept. 11 attacks may sit out their pretrial hearings. While the extent of the progress was in dispute, both the chief prosecutor and defense lawyers agreed the case was unlikely to be ready for trial in 2013.

The five defendants facing charges that include terrorism and murder include Khalid Sheikh Mohammed, a self-styled terrorist mastermind who grew up in Kuwait and attended college in North Carolina. He condemned the U.S. in a lecture to the court on Wednesday as he wore a camouflage vest that had been approved by the judge.

The judge heard lengthy arguments on a motion from the defense asking the judge to decide that the constitutional rights recognized in civilian criminal trials will apply in the special tribunals for war-time offenses. Prosecutors argued it was too soon to make that determination and the judge deferred a ruling.

Most of the arguments centered on the proposed security rules, including provisions that the defense said will prevent the five prisoners from publicly disclosing what happened to them while detained in secret CIA prisons overseas. The U.S. government says they were subjected to “enhanced interrogation”; critics say it was torture.

Lawyers for the defendants said the proposed rules would prevent them from using what happened in the CIA prisons to challenge statements the men made to authorities or to argue that they shouldn’t get the death penalty. It would also prevent the public from learning details about the harsh interrogations.

Extradited Muslim Cleric and 4 Other Terrorism Suspects Appear in American Courts after being extradited from Britain.

NEW YORK — A radical Muslim cleric whose fiery sermons at a London mosque were blamed for influencing followers to embrace a holy war against the United States arrived in New York on Saturday along with other terrorism suspects after losing a battle to fight extradition from Britain.

Abu Hamza Masri, also known as Mustafa Kamel Mustafa; Adel Abdel Bary; and Khaled Fawwaz appeared in federal court in Manhattan hours after their arrival in the U.S. to face multiple terrorism-related charges. Two other suspects were sent to Connecticut.

After a protracted battle in the British and European courts, Abu Hamza al-Masri, an incendiary Muslim preacher with links to Al Qaeda, and four other terrorism suspects implicated in an array of terrorist plots were extradited to the United States on Saturday to face federal charges in Manhattan and New Haven.

The two other defendants in Manhattan, Adel Abdul Bary, 52, and Khaled al-Fawwaz, 50, were arraigned on charges including murder and conspiracy to use weapons of mass destruction in connection with the 1998 bombings of the American Embassies in Dar es Salaam, Tanzania, and in Nairobi, Kenya, in which more than 200 people died. They pleaded not guilty.

In New Haven on Saturday, the final two defendants, Seyla Talha Ahsan, 33, and Babar Ahmad, 38, pleaded not guilty to charges that included conspiring to recruit fighters, raise money and gather equipment for terrorists on Web sites hosted out of Connecticut.

Federal authorities in the United States had long been seeking the extradition of Mr. Masri, an Egyptian-born cleric, for his involvement in a 1998 kidnapping of American citizens in Yemen, supporting the establishment of a terrorist training camp in Bly, Ore., and “facilitating violent jihad in Afghanistan,” according to a statement by the United States attorney in Manhattan. If convicted, Mr. Masri could face life in prison.

A Muslim Group Plans to Protest Derby Pride

Derby Muslim Action Force a group that has been organizing demonstrations against the annual gay pride in Derby. The last month, one of their members, Kabir Ahmed was convicted for causing harassment, alarm or distress with threatening language or behaviour at the 2011 pride march. He was given a two-year conditional discharge but three co-defendants were cleared.

The protest is expected to increase the tension during the Pride.

Spanish Court, “The terrorist act is more than the expression of radical ideas”

26 April 2012

To condemn the thought of an individual it is not the task of the Court and based on this affirmation the Audiencia Nacional (Spanish Court) has sustained the acquittal of nine Ceuti citizens charged with terrorist practices in the operation Dune (operation started in 2006 by the judge Baltasar Garzon accusing the individuals of being a jihadist cell with connections to the Al-Qaeda).

“The terrorist act is more than the expression of radical ideas, because freedom of expression and dissemination of ideas, thoughts or doctrines is a feature of the democratic system and must protect even those who disagree and advocate a system change other democratic political system, provided, that defense of these ideas will not be carried by violent means, ” concluded the judge.
The acquittal of Ceuta occurs, stating, “it is not enough to prove that the defendants think a certain way or that they contact or are related to others of the same ideology, it is necessary to show that they have decided to take action and that was not proven.

“Jyllands-Posten – where is that?”

13 April, 2012

GLOSTRUP. In his black Adidas jacket and short haircut Sahbi Zalouti looks more like a member of an MC-clib than an Islamic terrorist. He does not deny that he and the others sat in his home and discussed terror plans against “that newspaper with Muhammad-drawings.”


Leaned over the microphone he says: ”It was just talk. Nothing would have happened in reality.”


Zalouti was the only one out of the four suspects who was cross-examined in the court’s first day in Glostrup outside Copenhagen. He argued for his innocence as being the one who was dragged into something he knew nothing about. He was just an interlocutor. Not a participant.

“For me there was no talk of doing anything in reality. The whole thing was just idealistic talk. When I heard that my friends have been arrested with weapons I froze like a statue. I am a Muslim. Yes, I am religious. Yes. Am I a terrorist? No. I would never go a shoot people.”

Zalouti smiles interchangeably and comments angrily at the interrogator. At moments he strokes apologetically over the interpreters back with his left hand. It is difficult to discern if this is a spontaneous gesture or if this is something he does to appear as soft-minded and friendly.

The weapon was found in a rented car.

He admits without any hesistation that he had a weapon in his apartment in Frihetsvägen i Järfälla [Stockholm]. He points to another defendant Mounir Dhahri as the one who tookmthe weapon to his apartment. “I said I did not want weapons at my place.” Dhahri sits about ten meters away and gazes over on his former friend. His jaws are clenched.

The prosecutor displays an automatic rifle with a silencer for the court and the journalists in the courtroom. I do not want to claim that there was a breeze blowing though the room, but it was striking. Zalouti acknowledges that this is the same gun that he had in his apartment. “Dhahiri said that the weapon was not functional.”

The prosecutor claims that with this weapon and a handgun that the three defendents planed to storm the Jyllands-Posten’s editorial in central Copenhagen and kill as many people as possible. This would have been a revenge for caricatures which were published in 2005.

The weapon was found in a rented car which was used by the men who drove it to Copenhagen on the night of December 29, 2010. What they did not know is that the police had recorded every meter of their trip from Stockholm. The prosecutor shows survailance images of the car passing the Öresund Bridge at 02.02h. An hour later they had arrived to an apartment at Mörkhöjvej 92 in the Copenhagen suburb Herslev.

They were observed by the police even here. The prosecutor displays another surveillance video from the apartment there the men prepared to go to bed. While they sleep, the police search their car and finds, besides the weapons, ammunition and two plastic bags filled with cable ties. The bags have the fingerprints from the defendants. Cable ties can be used to tie people up.

The prosecutor displays a bag of cable ties in the courtroom. On the court’s big screen we can see a receipt from a Bauhaus store in Järfälla and a surveillance image of what appears to be one of the defendants buying cable ties couple of hours before departing to Copenhagen.

The score of evidences is demonstrated after searches made in the apartment in Herslev. In a jacket they found 20 000 dollars. In another jacket, a map and ammunition rounds. 36 rounds in total. The evidences supporting the charge that the men planned to carry out an attack is convincing. The proceedings take place in room 404 on the top floor of the Glostrup district court. Outside there is a helicopter hovering the building. Many policemen gurd the front and back entrances. There is a metal detector at the door of the courtroom. I’m thoroughly searched before entering the room. This is far more thorough search than at the airport.

The prosecutor plays a sound file from an mp3player which was seized during the arrests. An Arabic speaking voice proclaims something with songs in the background. On the screen in front the translation rolls: “The have declared war and enmity against us. What are we waiting for?” The voice intones. ”With the sword do we follow the enemies and strike them down.”

Wolfgang Hansson (A US- and Foreign Correspondent for Aftonbladet)