The Bush administration’s penchant for secrecy runs into trouble when it seeks to prosecute individuals using evidence obtained in potential violation of federal law.  Jerry Markon of the Washington Post writes about intelligence materials that could influence the appeal of a Virginia-based radical Muslim cleric, but that neither the prosecution (in this case, the U.S. government) or the defense have access to.  

The government is not releasing information about whether Ali al-Timimi had his communications monitored, and the defense is claiming that evidence was obtained from the warrantless surveillance being conducted by the NSA after 9/11.  U.S. District Judge Leonie Brinkema has threatened to grant a new trial for Muslim cleric Ali Al-Timimi of Virginia because "even prosecutors [have] not been allowed to see a series of filings that the intelligence community submitted to the judge." 

al-Timimi’s lawyer’s are appealing his 2005 conviction for inciting his followers to commit violent acts against the United States based on the possibility that Timini’s communications may have been monitored under the NSA warrantless surveillance activity that has now been stopped.  This surveillance may end up being deemed illegal, depending on the outcome of "about 50 challenges in federal courts." 

In a story about evidence that no one can see, it’s hard to pull the truth out of the shadows.  It would appear that the government doesn’t wish to reveal information about how it successfully prosecuted al-Timimi the first time.  But one has a sneaking suspicion that the government is pressing for secrecy because surveillance of al-Timimi’s communications was done with questionable legality, having been conducted without a FISA warrant. 

The larger question is:  what kind of justice is served when the evidence — even redacted for security purposes — is not made available to lawyers in the case, and can’t become part of the public record?  Doesn’t the public’s right to know how terrorists are operating outweigh the need for secrecy, especially two years after the initial conviction?  Judge Brinkema has proposed a solution — that attorneys for both sides and her law clerk receive security clearances that will allow them to review the evidence.  But even this will keep the public far from the truth about threats to our safety. 

Ned Hodgman

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