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Justice Department’s Al Qaeda Prosecutions in Jeopardy?
I wonder if one year ago (or however long ago the NY Times agreed to a request from the Bush Administration to mothball the Lichtblau-Risen story about NSA spying) Eric Lichtblau could’ve pictured himself one day well on the way to earning his first Pulitzer Prize. In fact, if I were on the Pulitzer Committee I’d just close down the category for Best Series because it’s got to go to this intrepid reporting team which first uncovered the scandal that will rock the Bush Administration perhaps till the end of its final term.
(cartoon: Nick Anderson)In today’s Times, Lichtblau amplifies on a report from Salon.com published December 23rd (which I just blogged about here), regarding Iyman Faris’ potential claim against Bush for using illegal NSA intercepts in its case against him:
Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.
The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.
The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency’s domestic surveillance program and could jeopardize some of the Bush administration’s most important courtroom victories in terror cases, legal analysts say…
David B. Smith, a lawyer for [Iyman] Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush.
When I write here and elsewhere that Bush’s NSA spying may cost him almost every one of the hitherto successful Justice Department prosecutions of U.S. supporters of Al Qaeda, I write this not out of vindication or triumph. The fact is that a good number of these people are real terrorists with real malevolent motives against this country and its citizens. We should all mourn that George Bush’s monarchical pretensions may have in effect destroyed his ability to fight terror effectively in this country. It seems highly likely to me that NSA intelligence would have been used in most or all of these cases. And once (notice I do not say “if”) Bush’s order is found to be illegal, any such cases go up in a whiff of smoke. And that is a tragedy, but one of Bush’s making and for which he must take responsibility (fat chance that happening).
There’s another point worth mentioning–this legal strategy is not a slam-dunk. The Justice Department will be fighting tooth and nail every single request for information about the NSA program and its relevance to individual cases. These defendants turned plaintiffs will first have to prove standing and then they’ll have to get a federal judiciary which often finds in favor of the executive in national security matters to find in favor of some very unsavory individuals who mean the United States no good. But in the end, these judges will realize that while the plaintiffs may be unsavory, the constitutional principle represented in their claim is intrinsic to our liberty as Americans. And that can never be unsavory.
