Terrorism Suspect Asks for Dismissal After Privileged Conversations May Have Been Recorded

Attorneys representing Minnesota terrorism suspect Mohamad K. Elzahabi asked a federal judge to dismiss his 2004 case after learning that their conversations with Elzahabi may have been recorded.

Defense attorneys Paul Engh and Peter Wold cited a letter from prosecutors that said, "It is possible that privileged conversations could have been inadvertently included" in round-the-clock recordings of Elzahabi as he awaits trial in a cell by himself in an unknown location.

Elzahabi, a Lebanese national in his mid-40s, was first charged in a terrorism-related investigation in June 2004. He allegedly told FBI agents that he taught sniping in Afghanistan and that he associated with al-Qaida leaders.

Elzahabi also was charged with lying to federal agents about sending walkie-talkies to Pakistan, helping to get a Massachusetts driver's license for a man later convicted of plotting a bombing in Jordan and possessing fraudulent immigration documents.

Elzahabi is believed to have arrived in Minneapolis in mid-August 2001 and lived in a house near the University of Minnesota.

A spokeswoman for the U.S. attorney's office in Minneapolis said the office had no comment on the defense filing.

In the document filed Wednesday in U.S. District Court in Minneapolis, Engh and Wold argue that if Elzahabi can't talk to his lawyers freely because he may be recorded, he can't be effectively represented.

As a terrorism suspect, the filing says Elzahabi can be subject to restrictions called Special Administrative Measures, allowed under federal regulations when there is a suspicion that an inmate may use communications with attorneys to further or facilitate acts of terrorism. Under those measures, authorities may monitor or review communications between inmates and attorneys.

But Elzahabi's attorneys argue that there is no reason to suspect them of passing on information.

The attorneys argue that it doesn't matter whether the government has reviewed the communications, because their client knows that the communications could be reviewed at any time.

"His lawyers are all he has in terms of contact, and the tape rolls. Why, now, should he say anything to us. Anything at all for, under this regulation, the tape rolls," Engh and Wold wrote.