With secret warrants upheld, defense team targets mosque recordings
After losing their bid to challenge secret warrants used by the FBI to gather evidence against their clients, attorneys for the Portland Six defendants are now working to poke holes in the government's case by dismantling the credibility of a key witness.
The witness, an FBI informant named Khalid Mustafa, performed extensive surveillance for the government and taped prayer services inside a Portland mosque.
Defense attorneys have begun raising questions in filed motions and in court about the character and tactics of Mustafa, who is being protected at an undisclosed location.
U.S. District Judge Robert Jones ruled Wednesday that the government does not need to release the warrants it used to justify spying on the suspects through Mustafa. Defense attorneys had hoped to examine the warrants and challenge them as unreasonable search and seizure.
Defense attorneys are considering appealing the ruling, which came a day after a three-hour hearing on whether the evidence gathered through the secret warrants should be suppressed. The Foreign Intelligence Surveillance Court in Washington, D.C., granted the warrants last year.
Five Muslim defendants have pleaded not guilty to charges of conspiring to levy war against the United States. The five, who sat quietly in court Tuesday while U.S. marshals kept watch over them, are Patrice Lumumba Ford, Jeffrey Leon Battle, Muhammad Ibrahim Bilal, Ahmed Ibrahim Bilal and October Martinique Lewis.
The sixth defendant, the Jordanian-born Habis Abdulla Al Saoub, remains a fugitive. He's the alleged leader of the group.
A federal grand jury is considering additional charges against the six defendants and others who may have joined the alleged conspiracy.
At the hearing, defense attorneys requested access to a wide variety of materials, including:
• Secret warrants issued by the intelligence court to justify a massive surveillance operation
• Information about recordings that were taped inside the Islamic Center of Portland, also called Masjed As-Saber, during religious ceremonies
• Details about the background of Mustafa and his relationship with the government
Defense attorneys also want to know how much Mustafa was paid, whether he has worked as an informant in the past, how often he performed surveillance inside the mosque and whether his tactics were inflammatory enough to constitute entrapment.
Mustafa, an auto mechanic who attended the same mosque as the defendants, befriended Battle and Ford after their return to Portland from attempts to get into Afghanistan. He recorded numerous conversations with them in their homes and vehicles.
He also made tape recordings inside the mosque, which may have violated an Oregon law that prohibits recording individuals in person without their consent.
Stanley Cohen, a New York lawyer who has defended numerous Muslims in court and is defending Masjed As-Saber's religious leader on a Social Security fraud case, said of the recordings inside the mosque: 'I'm not surprised, but I think it's an outrage. I can't imagine a more fundamental violation of the First Amendment.'
Assistant U.S. Attorney Charles Gorder said in court that the recordings made in the mosque did not violate state law because they were part of a federal investigation.
Transcripts of the recordings that Mustafa made show that he had the confidence of Battle and Ford and convinced them to speak openly about their unsuccessful attempts to join the jihad. At one point, Battle told the informant, 'That was my plan. I was going to take my whole family out there to be with Osama's own wife and family.'
The transcripts also hint at tactics that could prove legally problematic. In one instance, Mustafa instructed Battle in how to strip and clean weapons and buy silencers. When Battle expressed interest, Mustafa asked, 'You want to buy?'
According to the prosecution, the Portland defendants began training for holy war before Sept. 11, 2001; applauded the terrorist attacks of that day; and traveled to China's border along Afghanistan in hopes of crossing over to fight with the Taliban and al-Qaida against U.S. forces.
When they were unable to cross into Afghanistan, they split up. Ford returned to his family in Portland, the Bilal brothers went to Malaysia and Battle traveled to Bangladesh before flying back to Oregon.
Evidence in the case file suggests that the fugitive Al Saoub may have reached Afghanistan and joined the fighting.
Court documents also refer to several suspects who have not yet been charged, including a man who may have helped bankroll the operation. This man is referred to only as 'the brother.'
The grand jury's investigation into whether to file additional charges is expected to be completed by the end of April. The trial is scheduled to begin Oct. 1.