Just when you may have thought that it couldn’t get any worse, it has. Twelve days after the Times opened what now looks like a Pandora’s box with its first article on NSA domestic surveillance, defense lawyers in some of the biggest terror cases plan to mount legal challenges to determine whether the NSA used illegal wiretaps against several dozen Muslims tied to Al Qaeda, many of whom are American citizens. Having refused the President’s request to not publish the original story, the Times may now be responsible for the release of convicted terrorists whose intent is to kill Americans and disrupt our economy. If any of the Al Qaeda operatives are released and are subsequently involved in terrorist acts against Americans, the responsibility for the resulting deaths and disruption will rest squarely in the hands of executive editor Bill Keller, for whom the paper’s vendetta against Bush took precedence over our safety. If this scenario eventuates and any of the operatives involved in the act are identified as having been released as a result of the Times’ article, there will be a silver lining: the death of the self-styled “newspaper of record.” And yes, I’m as made as hell; I’m certain that Osama and his buddies are having the opposite reaction.

Just look at the carefully chosen words the Times used in their latest article:

    The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency’s domestic surveillance program and could jeopardize some of the Bush administration’s most important courtroom victories in terror cases, legal analysts say. [emphasis added]

And just who is responsible for the growing controversy?

Among the convicted terrorists whose lawyers plan to take advantage of the Times’ disclosures are Iyman Faris, Mohammed Junaid Babar, Jose Padilla, Ali al-Timimi, Seifullah Chapman, the Portland Seven, and the Lackawanna Six.


Several days ago, government officials said that the NSA surveillance program played a critical part in at least two cases that led to the convictions of al Qaeda operatives: Iyman Faris of Ohio, who admitted taking part in a failed plot to bring down the Brooklyn Bridge, and Mohammed Junaid Babar of Queens, who was implicated in a failed plot to bomb British targets.

David B. Smith, a lawyer for Faris, said he planned to file a motion in part to determine whether information about the surveillance program should have been turned over. Faris’ lawyers said they were also considering a civil case against the president, saying that Faris was the target of an illegal wiretap ordered by Mr. Bush. A lawyer for Babar declined to comment.

The first challenge is likely to come in Florida, where lawyers for two men charged with Jose Padilla, who is jailed as an enemy combatant, 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.

In a Virginia case, Edward B. MacMahon Jr., a lawyer for Ali al-Timimi, a Muslim scholar in Alexandria who is serving a life sentence for inciting his young followers to wage war against the United States overseas, said the government’s explanation of how it came to suspect Timimi of terrorism ties never added up in his view. FBI agents were at Timimi’s door days after the Sept. 11 attacks to question him about possible links to terrorism, MacMahon said, yet the government did not obtain a warrant through the foreign intelligence court to eavesdrop on his conversations until many months later. MacMahon said he was so skeptical about the timing of the investigation that he questioned the Justice Department about whether some sort of unknown wiretap operation had been conducted on the scholar or his young followers, who were tied to what prosecutors described as a “Virginia jihad” cell. MacMahon said

They told me there was no other surveillance. But the fact is that the case against a lot of these guys just came out of nowhere because they were really nobodies, and it makes you wonder whether they were being tapped.

John Zwerling, a lawyer for one of Timimi’s followers, Seifullah Chapman, who is serving a 65-year sentence in federal prison in the case, 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 NSA wiretaps were used against their clients. If the Justice Department declines to give an answer, Zwerling said, they plan to file a motion in court demanding access to the information. Zwerling said

We want to know, Did this N.S.A. program make its way into our case, and how was it used? It may be a difficult trail for us in court, but we’re going to go down it as far as we can.

Defense lawyers in several other high-profile terrorism prosecutions, including the so-called Portland Seven and Lackawanna Six cases, said they were also planning to file legal challenges or were reviewing their options. Patrick Brown, a lawyer involved in the Lackawanna Six case said:

Given what information has come out, with the president admitting that they had avoided the courts, then the question becomes, do you try to learn whether something like that happened in this case? I would have to talk to my client about whether that’s a road we want to go down.