NEW HAVEN, Conn. – A former Navy sailor charged with supporting terrorism by disclosing secret information about the location of Navy ships and the best ways to attack them says evidence against him was illegally obtained and should be thrown out.
Hassan Abu-Jihaad is citing a ruling by a federal judge in Oregon in September that struck down key portions of the USA Patriot Act as unconstitutional. U.S. District Judge Ann Aiken ruled the act cannot be used to authorize secret searches and wiretapping to gather criminal evidence — instead of intelligence gathering — without violating the Fourth Amendment ban on unreasonable searches and seizures.
The Bush Administration is appealing that ruling.
Abu-Jihaad says any intercepted telephone calls and searches of his e-mails that were authorized by the U.S. Foreign Intelligence Surveillance Court violated the Fourth Amendment. The Foreign Intelligence Surveillance Court is a federal court charged with overseeing requests from the FBI and others for warrants against suspected foreign intelligence agents.
Abu-Jihaad's attorneys filed a motion Tuesday in U.S. District Court in New Haven seeking an order suppressing any evidence obtained by electronic surveillance or physical searches authorized by the surveillance court. They say prosecutors notified them they intend to use such evidence, but have not provided details.
"If the government wanted to investigate the possible commission of a crime by Mr. Abu-Jihaad in the past, it should have invoked traditional law enforcement techniques that would have afforded Mr. Abu-Jihaad all of the Fourth Amendment protections to which he is entitled," Abu-Jihaad's attorneys wrote.
The U.S. attorney's office, which has not filed a response yet, declined to comment. The motion came a day before a three-day hearing to determine what evidence would be admissible for a trial scheduled to start in February.
Abu-Jihaad, 31, of Phoenix, pleaded not guilty in April to charges he provided material support to terrorists with intent to kill U.S. citizens and disclosed classified information relating to the national defense. He has been held without bail since his arrest in March in Phoenix.
Abu-Jihaad, who worked in a UPS warehouse in Phoenix, is accused in a case that began in Connecticut and followed a suspected terrorist network across the country and into Europe and the Middle East. The Internet service provider where the investigation started was based in Connecticut.
Abu-Jihaad is charged in the same case as Babar Ahmad, a British computer specialist arrested in 2004 and accused of running Web sites to raise money for terrorism. Ahmad is to be extradited to the U.S.
During a search of Ahmad's computers, investigators discovered files containing classified information about the positions of U.S. Navy ships and discussing their susceptibility to attack, officials said.
Abu-Jihaad exchanged e-mails with Ahmad while on active duty on the USS Benfold, a guided-missile destroyer, in 2000 and 2001, according to an FBI affidavit. In those e-mails, Abu-Jihaad discussed naval briefings and praised Osama bin Laden and those who attacked the USS Cole in 2000, according to the affidavit.
Abu-Jihaad's attorneys say the documents detailing the battle ships were not accurate. They also challenge the confidential nature of the information, saying the U.S. Navy routinely announced deployments of the ships and their capabilities.
The Oregon ruling cited by Abu-Jihaad came in a challenge to the act by Brandon Mayfield, a Portland lawyer whose home and office were secretly searched and bugged after the FBI misidentified a fingerprint in the Madrid train bombings that killed 191 people in 2004.
The FBI apologized to Mayfield for the mistake, and the federal government settled his lawsuit for $2 million.
Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland, predicted the ruling will lead to more challenges to the law.
"This will become an issue that will almost certainly find its way to the Supreme Court," Greenberger said. "The more it becomes an issue in other jurisdictions the court will have to deal with it."
Congress passed the Patriot Act with little debate shortly after the Sept. 11, 2001, attacks to help counter terrorist activities. It gave federal law enforcers the authority to search telephone and e-mail communications and expanded the Treasury Department's regulation of financial transactions involving foreign nationals. The law was renewed in 2005.
Abu-Jihaad, who received an honorable discharge from the Navy in 2002, faces up to 25 years in prison if convicted.