Judge will decide whether U.S. can keep some documents secret

U.S. District Judge Robert Jones is considering whether to compel the federal government to release more potential evidence in the so-called Portland Six case.

His decision could affect how the United States conducts its war on terrorism.

Jones has scheduled a hearing today on a defense request to force the Oregon U.S. attorney's office to release classified documents and records that defense attorneys think could help their clients, who are charged with forming an al-Qaida sleeper cell.

According to Alfred Carlton, president of the American Bar Association, Jones could decide whether the federal government is undermining civil liberties in its war on terrorism.

'He's right there on the crux between our new needs to fight terrorism and the preservation of our constitutional rights. He has to strike that balance,' said Carlton, an attorney in private practice in Raleigh, N.C.

One of the critical decisions facing Jones is whether to force the government to release all information collected on the defendants through search warrants authorized under the Foreign Intelligence Surveillance Act, commonly known as FISA.

'The Justice Department has made FISA the cornerstone of its war on terrorism. If the judge rules against the Justice Department, I expect them to appeal it,' said Ken Gude, a policy analyst with the Center for National Security Studies, a Washington, D.C., think tank.

The Portland Six case is one of a handful of controversial federal cases against suspected Muslim terrorists in the United States. Others include charges against an alleged al-Qaida sleeper cell in New Jersey and last week's arrest of University of South Florida professor Sami Al-Arian on charges of running a terrorist fund-raising operation. All of the cases involve the use of FISA-produced evidence.

The Oregon U.S. attorney's office declined to discuss the Portland Six hearing. So did attorneys for all six defendants Ñ Jeffrey Leon Battle, Patrice Lumumba Ford, Ahmed Ibrahim Bilal, Muhammad Ibrahim Bilal, Jabis Abdulla Al Saoub and October Martinique Lewis.

But the indictment and various motions filed by both sides lay out the government's case and the arguments over the evidence that Jones must resolve.

In the local case, the federal government accuses six Portland Muslims of conspiring to wage war against the United States and provide material support to the former Taliban government in Afghanistan. According to the government, after receiving firearms training in October 2001, five of the defendants left the country for Afghanistan to fight against U.S. forces there. Lewis remained in Portland and wired money overseas to support the trip, according to court documents.

Today's hearing will help determine whether the government can withhold some of the information it gathered against the defendants through FISA court-approved searches and wiretaps. Jones' ruling could set a precedent for future terrorism investigations.

A controversial tool

FISA has become one of the government's most controversial tools in the war against terrorism. Created in 1978, the act established a special Foreign Intelligence Surveillance Court that approves secret investigations Ñ including search warrants and wiretaps Ñ of suspected agents of foreign powers.

'The targets of FISA investigation may never be told of the searches and wiretaps,' Gude said. 'This is different than criminal investigations, where all searches and wiretaps must be revealed.'

Carlton said: 'Although it's been around for 25 years, it's only now coming to the attention of the public. The question is, is it undermining the very rights we are fighting to protect?'

After the Sept. 11, 2001, terrorist attacks, Congress passed the USA Patriot Act. In November 2002, a special FISA Review Court ruled that act now allows the government to introduce evidence collected through FISA court-approved investigations in criminal cases. The ruling also said the government can keep some of the information classified and inaccessible to defense attorneys.

Charles Mathews, the special agent in charge of the Oregon FBI office, said the review court's ruling is necessary for fighting terrorism. Although Mathews would not discuss the details of the Portland case, he said: 'In the old days of spy vs. spy, we were just trying to thwart foreign agents from collecting national defense or private business secrets. If we caught them, we'd deport them. Now these guys are looking for targets to bomb.'

But others are not so sure. After the court's ruling, the American Bar Association passed a resolution calling for congressional oversight hearings on the FISA court. The resolution, passed at the midyear meeting of the ABA's house delegates in Seattle earlier this month, also urged Congress to amend the act to ensure it is only used when investigating agents of foreign powers, as originally enacted.

More recently, a coalition of civil liberties and Arab-American groups asked the U.S. Supreme Court to rule on the constitutionality of the November 2002 ruling allowing FISA evidence to be introduced in such criminal proceedings as the Portland Six case.

The request was filed by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the American-Arab Anti-Discrimination Committee and the Arab Community Center for Economic and Social Services.

Laila Alqatami, an antidiscrimination committee spokeswoman in Washington, D.C., says defendants are entitled to see all of the evidence against them before they go to trial. According to Alqatami, the government should not be allowed to selectively release only some of the information it has obtained against criminal defendants.

'The government could release information that makes a defendant look guilty, but keep other information that could clear him secret,' Alqatami said.

Jones is likely to rule before the Supreme Court even decides whether to take up the case, however.

'Legal experts all over the country are watching this case. It could have a very significant impact on how the government investigates terrorism,' Gude said.

Case could be significant

Although it has not received as much national media coverage as the cases against John Walker Lindh and Richard Reid, the Portland Six case could be much more significant legally. In part that is because none of the local defendants was caught committing a crime.

They were indicted by the federal government after a lengthy investigation that involved multiple government agencies, both in the United States and abroad. Their defense attorneys are challenging the government's handling of the evidence used to indict their clients, questioning whether they are being provided with everything needed to mount a proper defense.

Since the indictment, the government has provided defense attorneys with a large amount of the evidence that may be introduced against their clients, including more than 7,500 pages of FBI and law enforcement interviews, applications and affidavits in support of 16 search warrants, all of the statements the defendants made after they were arrested and 75 CDs containing recorded conversations.

The defense attorneys do not think they have received all the information the government has on their clients, however. They filed a motion with Jones on Jan. 17 asking the government to turn over more information. The motion, which was submitted by all six defense attorneys, specifically asked for all FISA documents related to their clients.

The federal government has admitted some FISA information into evidence. For example, according to court records filed by the Oregon U.S. attorney's office, a telephone conversation between two of the defendants was recorded under a FISA court-authorized warrant in July 2002. In the conversation, Ford and Muhammad Bilal allegedly discussed their failed trip to Afghanistan, saying they should use forged documents the next time they traveled overseas.

The government does not want to release any more FISA documents, however. The U.S. attorney's office filed a response on Feb. 7 that said the remaining documents should stay classified.

Jones will have to decide whether to order the government to release all the documents or to allow some to remain secret.

Mathews says such issues have substantially changed the way the FBI does business.

'There have been tremendous changes since I first joined the FBI. Back then, we were looking to catch people stealing boxes off of loading docks. I'm really proud that our agents today can keep up with all the changes in the law and apply them in their investigations,' Mathews said.

Contact Jim Redden at This email address is being protected from spambots. You need JavaScript enabled to view it..

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