Defense lawyers who had hoped that the public disclosure a year ago of the National Security Agency's wiretapping program would yield information favorable to their clients are being rebuffed by the federal judiciary, which in a series of unusually consistent rulings has rejected efforts by terrorism suspects to access the records.
In at least 17 criminal cases, federal district judges nominated to the federal bench by presidents Reagan, George H.W. Bush, Clinton, and George W. Bush have ruled against requests to force the government to tell defendants, most accused of terrorism-related crimes, whether the NSA eavesdropped on them without a court warrant.
The rulings indicate that even as public support for the war in Iraq has eroded in polls and as the NSA program has come under criticism from congressional Democrats, and even some Republicans, federal judges may be a bulwark that the Bush administration can rely on to defer to at least some aspects of its wartime policies.
The judges' decisions have come after defense attorneys filed motions requesting access to relevant surveillance intercepts that the government obtained without a warrant. Defense attorneys claim they are entitled to such information and that evidence obtained from warrantless wiretaps is tainted and inadmissible at trial. In many, but not all instances, the motions were filed after a conviction.
Individually, the judges' orders, often very brief and rarely providing explanations, indicate little. Taken together, however, they signal that the judges are unwilling to permit defense attorneys to use prosecutions to force disclosures about the program.
The legality of the NSA program is being litigated in several civil lawsuits across the country. In one case, a district judge in Detroit, Anna Diggs Taylor, ruled in August that the program was unconstitutional, a decision that the government has appealed. Legal observers dispute whether even a ruling by the Supreme Court that the program is unconstitutional would lead to the overturning of criminal convictions in which the program played a role in securing evidence or targeting the defendants.
In every instance, the Justice Department's policy is to refuse to say publicly whether the NSA program was involved in a case, because denying its role in one case but refusing to deny its role elsewhere could disclose classified information, according to public government court filings. Rather, in response to defense motions, the Justice Department has filed secret documents with the court that are not supplied to defense lawyers.
"There is a veil of secrecy over these parts of the proceedings," said one attorney, Marvin Miller, who filed such a motion on behalf of Ali Asad Chandia, who was convicted in Alexandria, Va., of aiding a terrorist organization in Pakistan.
Defense attorneys say they are frustrated that judges are accepting these secret briefs from the government.
"Whatever the government is saying in these secret ex parte in camera filings, it is sure clamming up a lot of judges," said attorney Jeanne Baker, who represents Adham Amin Hassoun, a co-defendant of "dirty bomb" suspect Jose Padilla.
Speculation abounds among attorneys over just what the Justice Department is saying in the secret briefs.
Some defense attorneys suggest that the government's ex parte briefs may contain a simple yes-or-no answer as to whether a specific defendant was targeted by the NSA program. Another defense attorney, Jill Shellow-Lavine, speculates that the size of the program may prevent the government from stating whether a particular defendant was the subject of the surveillance.
A former Justice Department official says that the government probably declines to give any answers in its secret filings.
"There is no basis to assume than the government is making defendant-specific disclosures," David Rivkin, who served in the Reagan and George H.W. Bush administrations, said. "The far more likely scenario is that the government is telling the relevant judges that the classified program has nothing to do with this prosecution."
Defense attorneys say the willingness of judges to accept secret briefings puts them in an unfair position.
"It short-circuits the adversary system, and it prevents the issues from being litigated," a lawyer who has filed a motion for disclosure regarding the NSA program, Malick Ghachem, said. "I haven't found a single judge so far who has been willing to take a serious look at this or at least let the defendants know they are taking a serious look at it."
Defense attorneys acknowledge that these motions for disclosure are made routinely, even without any evidence to suggest that their clients were targeted by the NSA program.
Still, even in cases in which the NSA program is believed to have played a role, it is not clear that judges would rule any differently. Officials in the Bush administration have credited the NSA program with helping uncover the terrorist plot of an Ohio truck driver, Iyman Faris, to topple the Brooklyn Bridge, according to a New York Times report. In October a federal judge in Alexandria, Va., Leonie Brinkema, declined Faris's request for government documents about the NSA program's role in the case. Last month, Judge Brinkema upheld Faris's guilty plea from 2003, ruling that Faris did not have standing to bring his challenge even if "electronic surveillance" had first led the government to him.
In only one case has a federal appeals court looked at the relationship of the NSA program to criminal prosecutions. The 4th Circuit Court of Appeals in Richmond, Va., in April remanded a separate case to Judge Brinkema, questioning whether the government possessed "undisclosed intercepts" that should have been turned over. The case involved a Muslim cleric, Ali al-Timimi, who was found guilty last year of encouraging Muslims to join the Taliban's war efforts.
Timimi's attorney, Jonathan Turley, said he believes that NSA intercepts may contain exculpatory evidence that could have benefited Timimi, rather than incriminating evidence used to target him.
A court filing by the Justice Department in the case against Lynne Stewart, the New York lawyer who was convicted of criminally helping her terrorist client communicate with his followers, listed 17 criminal cases in which judges have denied motions for disclosure about the NSA program. The New York Sun reviewed 14 of them. In those orders, the judges, excluding Judge Brinkema, did not state any reason for denying the defense motions, except to indicate that they had considered the secret briefs of the government. In one written order, a judge implied that his willingness to sentence a defendant without further hearings was on the condition that the government's secret brief said no evidence came from the NSA program.