Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts

"WASHINGTON, Dec. 27 - Defense lawyers in some of the country's biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.

The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.

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.

The question of whether the N.S.A. program was used in criminal prosecutions and whether it improperly influenced them raises "fascinating and difficult questions," said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.

"It seems to me that it would be relevant to a person's case," Professor Tobias said. "I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security."

While some civil rights advocates, legal experts and members of Congress have said that President Bush did not have the authority to order eavesdropping by the security agency without warrants, the White House and the Justice Department continued on Tuesday to defend the legality and propriety of the program.

Trent Duffy, a spokesman for the White House, declined to comment in Crawford, Tex., when asked about a report in The New York Times that the security agency had tapped into some of the country's main telephone arteries to conduct broader data-mining operations in the search for terrorists.

But Mr. Duffy said: "This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches."

He added: "The president believes that he has the authority - and he does - under the Constitution to do this limited program. The Congress has been briefed. It is fully in line with the Constitution and also protecting American civil liberties."

Disclosure of the N.S.A. program has already caused ripples in the legal system, with a judge resigning in protest from the Foreign Intelligence Surveillance Court last week. The surveillance court, established by Congress in 1978 to grant warrants in terrorism and espionage cases, wants a briefing from the Bush administration on why it bypassed the court and ordered eavesdropping without warrants.

At the same time, defense lawyers in terrorism cases around the country say they are preparing letters and legal briefs to challenge the N.S.A. program on behalf of their clients, many of them American citizens, and to find out more about how it might have been used. They acknowledge legal hurdles, including the fact that many defendants waived some rights to appeal as part of their plea deals."
NYTimes

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