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Lawyers: Did NSA snoop on suspects?

From Mike Ahlers and Kevin Bohn
CNN

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WASHINGTON (CNN) -- Defense attorneys for several terror suspects prosecuted by the Justice Department said Wednesday they plan to file court motions questioning the legality of a National Security Agency surveillance project.

They want to know if the program was used in their clients' cases.

Other attorneys said they will ask whether the program was used in their clients' prosecutions and leave the door open to legal action if they don't get a satisfactory answer.

The attorneys' plans were first reported by The New York Times.

The secret eavesdropping program, which President Bush authorized shortly after the September 11 attacks, allows the NSA to intercept domestic communications without a warrant, as long as one party is outside the United States.

Bush, who confirmed the program's existence earlier this month, says it is essential to help counterterrorism agents quickly trace the communications of terror suspects.

But Democrats and some Republicans have questioned the legality of the program, and some lawmakers have called for an independent investigation or congressional hearings.

Ken Swartz, a lawyer representing a co-defendant in Jose Padilla's criminal case, said he will soon file a motion challenging some of the foreign intelligence wiretaps in that case, and will seek information about whether NSA wiretaps were used. (Full story)

"We need to explore [the] issue," Swartz told CNN. He would not describe in detail what he may ask the court.

The lawyers representing Iyman Faris and Ali al-Timimi, who are both serving time for terror-related convictions, said they plan to ask a federal court to force the Justice Department to hand over information about whether the NSA surveillance was used in their cases.

Faris pleaded guilty to plotting to blow up the Brooklyn Bridge and received a 20-year sentence; al-Timimi, a Muslim scholar, was sentenced to life after he was convicted of rallying followers to wage war on the United States.

"These cases are going to force the issue," said Jonathan Turley, a lawyer for al-Timimi. "The government secured convictions against a variety of individuals who now seem likely to have been the targets of this operation. Now, ultimately those questions have to be answered if the government wants to protect those convictions.

"If the government cannot answer those questions, then there's going to be a lot of new trials in this country," Turley told CNN.

Legal experts said it would be illegal to directly use information from the program for prosecutions, since the government did not seek court warrants.

However, the area of dispute may center on whether a lead for investigators initially came from an NSA wiretap without a warrant, the experts said.

The only known terror case that the program contributed to is Faris,' the Ohio truck driver who pleaded guilty in 2003 to helping al Qaeda by possibly plotting to blow up the Brooklyn Bridge.

Government officials familiar with the program confirmed to CNN that wiretaps under the program helped lead authorities to Faris, but the officials provided no details.

"I want to know in what way NSA's surveillance program impinged on his case," said David Smith, an attorney for Faris. "Did they actually listen to conversations of Mr. Faris, or was it merely that his phone number came up in a surveillance of another target?"

Because sources have said Faris' case was influenced by the NSA program, Smith said Faris may be the only person who can bring a lawsuit related to it.

To file legal action against the program, one must show proof of being directly affected by it. Smith said his client would consider bringing a civil lawsuit if a group is interested in helping to pursue that action.

"I think there is a good likelihood," Smith told CNN. "I believe that he would be happy to bring such a lawsuit. The question is whether there is a lawyer who wants to use him as the plaintiff in such a suit, and I think there probably is."

The Justice Department and White House refused to comment on the expected legal moves by defense attorneys.

"I don't think it should serve as any surprise that defense attorneys are looking for ways to represent their clients. That's what defense attorneys do," White House Spokesman Trent Duffy told reporters.

He said Attorney General Alberto Gonzales and Gen. Michael Hayden, the head of NSA when the program began and now deputy director of national intelligence, "did a very thorough briefing about the legal underpinning that the administration is basing the program on." (Full story)

The Justice Department has cited as legal justification for the program Article II of the Constitution, which gives the commander in chief authority to protect the nation, and a post-9/11 law that authorized the president to use force against al Qaeda.

Critics say Bush had no legal standing to authorize domestic wiretaps without obtaining a warrant from a court in accordance with the Foreign Intelligence Surveillance Act (FISA), either in advance or retroactively.

CNN's Dana Bash contributed to this story.

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