- David B. Smith intends to bring a challenge for David Faris, charged in Ohio with plotting to blow up the Brooklyn Bridge:
[He] said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Lawyers said they were also considering a civil case against the president, saying that Mr. Faris was the target of an illegal wiretap ordered by Mr. Bush.
- The co-defendants of Jose Padilla are gearing up:
[They] plan to file a motion as early as next week to determine if the N.S.A. program was used to gain incriminating information on their clients and their suspected ties to Al Qaeda. Kenneth Swartz, one of the lawyers in the case, said, "I think they absolutely have an obligation to tell us" whether the agency was wiretapping the defendants.
- John Zwerling, one of my pals from Alexandria, VA., will be filing as well, on behalf of Seifullah Chapman. Chapman was a follower of Ali al-Timimi, a Muslim scholar convicted of inciting his disciples to wage war against the U.S. Al-Timini is serving a life sentence, Chapman is serving 65 years.
[Zwerling] said he and lawyers for two of the other defendants in the case planned to send a letter to the Justice Department to find out if N.S.A. wiretaps were used against their clients. If the Justice Department declines to give an answer, Mr. Zwerling said, they plan to file a motion in court demanding access to the information. "We want to know, Did this N.S.A. program make its way into our case, and how was it used?" Mr. Zwerling said. "It may be a difficult trail for us in court, but we're going to go down it as far as we can."
Some federal prosecutors tell the Times the NSA warrantless surveillance could be a problem for the Government in both past and future cases.
I think those who pleaded guilty and waived their right to appeal may have a tough time getting back into court. Also, the Lackawanna Six defendants, some of whom pleaded guilty in part to avoid being designated as enemy combatants and shipped to Guantanamo, may decide against making a challenge to preserve their bargains.
The bottom line is the government and prosecutors are required under a Supreme Court ruling known as Brady v. Maryland to provide defendants with all "material" information affecting their case, including derogatory information that could impact the credibility of prosecution witnesses. This includes information that might impact their guilt or their sentence.
Another Supreme Court case, Kyles v. Whitley, 514 U.S. 419 (1995) held that the duty of disclosure is not limited to evidence in the actual possession of the prosecutor. Rather, it extends to evidence in the possession of the entire prosecution team, which includes investigative and other government agencies.
I continue to think the place to begin is with a simple request under 18 U.S.C. Section 3504.
(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States—
(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act; .....
(b) As used in this section “unlawful act†means any act the use of any electronic, mechanical, or other device (as defined in section 2510 (5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.
The Government can't avoid answering the defense requests simply by asserting the material is classified. Once it is established that a defendant has standing to make the challenge, at a minimum I think the Government could be compelled to submit the information to the Judge for a decision on whether it is relevant and helpful to the defense and should be turned over. In the event of an adverse decision by the Court, the Government should have only two choices: either turn over the information or refuse and dismiss the criminal charges.
We don't convict on secret evidence in the U.S.... yet.
Update: Reddhedd weighs in here.
