Wednesday, December 05, 2007

ABUJIHAAD DEFENSE FILES MOTION TO DISCLOSE: Wiretapping by government under FISA court order

Your friendly neighborhood GlobalSecurity.Org Senior Fellow has uploaded a copy of a motion to disclose recently filed by the lawyer of Hassan Abujihaad [or Abu-Jihaad], a man accused by the government in a terror trial just beginning to unfold in Connecticut.

The original accusations against Hassan Abujihaad stem from e-mails the ex-Navy signalman made while serving aboard the destroyer Benfold in 2001. They eventually resulted in an indictment on terror charges discussed last week on this blog and in other publications.

The US government has slowly nursed the Abujihaad case, employing an informant who was many things: a common law polygamist as well as an ex-felon and former gang-member.

The charges against Abujihaad stem from 2001 when the defendant corresponded by e-mail with Babar Ahmad of Azzam Publications in London. A sailor aboard the US Navy's Benfold, Abujihaad ordered videotapes of Azzam and tipped the agency five dollars when informed he had overpaid for his purchases by the same amount. In that period of time he also forwarded rough information on the passage of his surface action group through the Straits of Hormuz to Azzam.

The substance of it is discussed here and Abujihaad's e-mails and correspondence with Azzam can be downloaded from this blog.

In a startling development, one not mentioned by the regular media correspondents covering the Abujihaad case, a "Motion for disclosure of FISA applications and orders and for hearing on adversary on motion to suppress" was filed today on PACER.

"[Defendant] Hassan Abu-Jihaad hereby moves for the disclosure of papers submitted by the government and all court orders pursuant to the Foreign Intelligence Surveillance Act," reads the motion. "Defendant also requests that the court conduct an adversary hearing to determine the issues raised by the defendant's Motion to Suppress FISA Derived Evidence."

Abu-Jihaad's representation writes "[the defendant] is accused in a two count indictment of Providing Material Support to Terrorists ... and of Communicating National Defense Information to Persons Not Entitled to Receive It..."

"On or about October 29, 2007 the government filed an amended notice of intention to use [FISA] information ... The amended notice indicates that the government intends to use FISA derived evidence at pretrial hearings, the trial and other related proceedings in this case."

Abu-jihaad's defense asks the court the disclose the FISA derived evidence the government intends to introduce.

"Defense counsel do not have access to the affidavits and other papers which the government may have submitted to the [FISA court] or any of the orders issued by the [FISA Court] authorizing the electronic surveillance [of Abu-Jihaad] ... As a result defense counsel are left to guess about what information might have been presented to the [FISA Court] and what arguments might appropriately be made in support of the motion to suppress."

The Abu-Jihaad case is a terror trial in which the government's use or misuse of electronic surveillance on a US citizen becomes a key issue.

"The motion to suppress raises substantial questions about the legality of the government's use of FISA orders in the unique circumstances in this case," writes Abu-jihaad's defense.

"Particularly with respect to the probable cause determination that the defendant was acting as an 'agent of a foreign power' when the FISA applications were made in 2006 ... "

"In response to the instant application, the defense anticipates that the government may file an affidavit certifying that disclosure of the FISA application 'would harm the national security of the United States.' The court should look askance at such a submission ... The only criminal charges filed against the defendant relate to conduct which allegedly occured in the Spring of 2001. The government has been actively investigating the defendant since 2004. Based upon the testimony of Special Agent David Dillon at the court hearing on November 28th, it is clear the government had been conducting physical surveillance and electronic surveillance against the defendant since the beginning of 2004 and has enlisted at least one cooperating witness to befriend the defendant in an effort to elicit incriminating statements from him. It is safe to assume that the government has probably used every investigative tool available to it in an effort to build a case against the defendant. The end result of the investigation ... is the same set of e-mail communications which the defendant sent to Azzam Publications in 2001 and which the government has known about since early 2004, and the uncorroborated hearsay ramblings of Derrick Shareef uttered in 2006 regarding some half-baked notion to attack military installations. There is absolutely no evidence of Mr. Abu-Jihaad's involvement with any 'foreign power' beyond the e-mail communications sent to Azzam Publications in 2001, there is no credible evidence of Mr. Abu-Jihaad's involvement in any ongoing conspiracy in 2006 and Mr. Abu-Jihaad himself has been in custody since March 2007. This is not a situation where the government is conducting an ongoing investigation which is generating 'foreign intelligence information' or other evidence of a plot to harm national security. In this context, the government cannot make a good faith showing that disclosure of pertinents parts of the FISA applications and orders would 'harm the national security of the United States.'"

The Abu-Jihaad case is a complicated one because the original accusations stretch back to actions which took place in 2001. It would seem fairly obvious that one of the original counts, providing material support to terrorists, is extremely thin. It is based upon Abu-Jihaad purchasing a couple of videotapes, the sale of which was not illegal in the United Kingdom at the time, and his overpayment of Azzam to the tune of the princely sum of five dollars USD.

So far, the pattern seems to indicate that the government is seeking to employ secret evidence in an effort to bolster the case against Abu-Jihaad, evidence it may realize was obtained outside the spirit of the law but done anyway, as things have been, for the sake of the war on terror. This suspicion is somewhat strengthened by a pattern in which the government has anonymously leaked insinuations that it has much greater evidence against the defendant to reporters covering the case.

Last week, the Los Angeles Times reported the following, furnished by a leaker representing the government: "Prosecutors acknowledged that in several [wiretapped] calls, the informant appears to be initiating efforts to proceed with the plot and to buy weapons ... 'But that's not the only evidence the government has,' said one official, speaking on condition of anonymity because he was not authorized to discuss the case."

Motion to disclose FISA orders in case of USA v. Hassan Abu-Jihaad. (pdf)

WinterPatriot has assembled a thorough piece on FBI informant William Chrisman, an unsavory creep/ex-con and crack dealer, now refashioned as an alleged patriot with "three wives," enlisted by lawmen to help in the war on terror. Chrisman's picture was published in a Connecticut newspaper. WP's blog reposts it in fine fashion after the MSM publication attempted a retraction. Read WP's research on Chrisman here.

"While [Hassan Abu-Jihaad] awaits his fate, [FBI informant William Chrisman] admitted during the hearing that his efforts to find a fourth wife didn't work out when the woman found out [he already had] three [in some kind of weird common law dodge which apparently some in law enforcement and journalism don't find profoundly creepy and f---ed]," reported Associated Press, sometime last week.

Update: (January 2008):

Ramblings of idiot dude and informant in government surveillance edit.

Rambling of idiot dude ruled inadmissable in Abu-jihaad pre-trial.

From last week: Government nurses terror case.

Loose mouth and loose change -- Hassan Abu-Jihaad and Azzam Publications.


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