Portland 7 take issue with Civil War law
• Nationally watched case also argues that boosted surveillance under the Patriot Act is unlawful
The so-called Portland Seven have renewed their attempt to get a federal judge to dismiss the indictment charging them with conspiring to fight a 'holy war' in Afghanistan after Sept. 11, 2001.
Their final written arguments Ñ filed last week Ñ and motions to suppress evidence will be argued in October before U.S. District Judge Robert E. Jones.
One of their arguments Ñ that the government is wrongfully seeking to prosecute an alleged international conspiracy under a Civil War-era antisedition statute Ñ is new. Never in the statute's 141-year-old history has it been applied to an alleged conspiracy to use force against the United States on foreign soil.
But other arguments in the case already have been raised in the debate Ñ taking place in the media, public forums and other courtrooms across the country Ñ over how far Americans want the federal government to go in preventing, investigating and prosecuting acts of terrorism such as the Sept. 11, 2001 attacks.
One of the debate's most heated topics is the ability of law enforcement officers to secretly enter homes for investigative purposes Ñ such as planting eavesdropping devices Ñ based on authorization obtained from a secret court with less public accountability than a judge acting in a typical criminal case. Such surveillance is allowed under the USA Patriot Act, passed by Congress in response to the 9-11 attacks attributed to al-Qaida, the Afghanistan-based international terrorist group.
According to former local FBI chief Charles Mathews, 'There is misinformation, what I believe is a degree of unfounded hysteria, and a lot of rumor about what is taking place (under the Patriot Act), as opposed to fact-based concerns.'
Mathews, a panelist at a recent forum on 'Civil Liberty and Homeland Security,' sought to reassure a packed house at the First Unitarian Church that law enforcement is not abridging civil liberties in its investigation of terrorism.
'The FBI's central mission now is to protect against acts of terrorism,' said Mathews, speaking generally and not about the Portland Seven case in particular. 'The American people have overwhelmingly joined in support of the FBI.'
And, he said, 'the FBI is working within the law: You can take that to the bank.'
But fellow panelist Shahriar Ahmed, president of Beaverton's Bilal Mosque Association, where some of the Portland Seven worshipped, was not convinced.
'After 9-11, we saw two faces of America,' said Ahmed, who ruefully acknowledged having voted for President Bush.
'One (of those faces) was understanding, reaching out, wanting to help us. (But) there's another face that sends chills through my bones. I do trust Charlie Mathews,' he said. 'But I don't trust John Ashcroft,' the U.S. attorney general.
It is Ashcroft's office that provides the certification necessary to obtain surveillance tools, such as eavesdropping devices and search warrants, under the Patriot Act.
As attorney general, Ashcroft also heads the U.S. Department of Justice, whose local office is prosecuting the Portland Seven.
Surveillance gets a boost
In 1978, Congress passed the Federal Intelligence Surveillance Act. Known as FISA, the law created a system for conducting surveillance of foreign intelligence forces operating within the United States.
This law is different from the one through which law enforcement officers obtain authorization to conduct surveillance in typical criminal cases.
In fall 2001, the Patriot Act extended FISA's scope to criminal investigations in which intelligence gathering is 'a significant purpose' of the investigation. It also allows federal agents who obtain information via FISA-authorized surveillance to share the information with local law enforcement officers.
Under Mathews, Portland Seven investigators intercepted several hundred communications using authorization obtained via FISA.
According to John Ransom, attorney for co-defendant October Martinique Lewis, some of the interceptions resulted from 'the government's secret intrusions into (Lewis') private telephone conversations and covert intrusion(s) into her residence to 'plant' electronic eavesdropping equipment that recorded every activity within the residence for a period of, probably, 60 days.'
He said the resulting recordings of Lewis contain an invitation to a picnic, a call from a debt collector and other conversations of seemingly little evidentiary value to federal prosecutors.
It is unclear, from the information released to date, whether other recordings in the case Ñ including some by an undercover informant Ñ were made under the same law. These recordings include alleged admissions by co-defendants Jeffrey Leon Battle and Patrice Lumumba Ford that they went to China with the intention of fighting a jihad Ñ or holy war Ñ in Afghanistan against American forces.
According to court records, Ford also allegedly told the undercover informant on tape that he had warned Battle to keep quiet because they could be arrested for conspiracy.
If 'they' searched hard enough, Ford allegedly said on the tape Ñ apparently referring to the federal government Ñ 'they' could find proof. With the Patriot Act, Ford reportedly added, 'they' don't need evidence.
A third co-defendant, Muhammad Ibrahim Bilal, was recorded allegedly thanking another person for lying to the police about the purpose of the China trip, according to the case's court records made public to date.
Lewis' attorney, Ransom, has told Jones that he will file a motion to suppress all of Lewis' statements recorded under the authority of the FISA court on the grounds that the Patriot Act's extension of its provisions to typical criminal cases is unconstitutional.
Attorneys for her co-defendants are expected to file similar motions before the October hearing, according to Ford's lead attorney, Whitney Boise.
An 1861 law questioned
In addition to FISA, the Portland Seven have raised a number of issues that relate to the charges Ñ rather than the prospective evidence Ñ against them.
One is whether the government properly charged them with conspiracy to levy war against the United States under a statute that was enacted in 1861 to prosecute domestic conspiracies related to the Civil War.
According to Boise, the statute only applies to conspiracies to use force against the United States on American soil. But federal prosecutors say that the law is not limited to domestic conspiracies and that, in any event, the Portland Seven's alleged conspiracy did have domestic components.
The defendants also have asked Jones to dismiss the other counts of the indictment on other grounds, some of which, according to the case's prosecutors, already were decided in their favor by the judge in the case of the 'American Taliban,' John Walker Lindh. (That judge's ruling Ñ unlike a decision by the U.S. Supreme Court Ñ is not binding on Jones.)
It is these legal, sometimes esoteric issues that make defending the Portland Seven case exciting, Boise said.
'It's all new, it's all novel, it hasn't been tested in front of the Supreme Court,' he said. 'These statutes are untested. The government is trying to prosecute these cases in a novel way. Obviously, we disagree with it.'