WASHINGTON -- The Bush administration persuaded a federal judge yesterday that the controversial warrantless wiretapping program played no role in the prosecution of a Virginia Arab-American student on charges that he plotted with al-Qaida to assassinate President Bush, according to a defense attorney.
Federal prosecutors filed a declaration under seal in the Virginia courtroom of Judge Gerald Green where the student, Ahmed Omar Abu Ali, was convicted on several charges, including the plot to assassinate the president.
"We don't know what's in it, but we know the result," said Ashraf Nubani, a defense attorney. "The judge is asking that we proceed with the sentencing."
On Feb. 17, Green ordered the government to file a declaration under oath by "someone with personal knowledge" and the authority to "definitely answer" whether the warrantless wiretaps were used to obtain evidence or a warrant for legal wiretaps in the special Foreign Intelligence Surveillance Act court.
If the answer was affirmative, he had set a schedule for filings and arguments. If negative, he ordered sentencing to go forward.
It was the first of at least 10 terrorism-related cases in which defense attorneys asked whether prosecution evidence came from National Security Agency warrantless wiretaps.
While Republicans in the Senate and House have crafted proposals to shift oversight of the wiretapping program from the FISA court to Congress, and in effect to legalize the surveillance, defense and civil liberties attorneys are determined to force a decision on the program's legality in the courts.
Yesterday, two civil liberties groups that are suing the administration over the surveillance program filed motions asking the courts to halt the eavesdropping immediately and to rule against the government.
Anne Beeson, an attorney at the American Civil Liberties Union, said no matter what Congress does, the courts have an obligation to rule.
The ACLU asked the federal court in Detroit to immediately halt the surveillance because of its "concrete harm" to authors, nonprofit groups and others whose communications with other countries are chilled by concern about eavesdropping.
Shayana Kadidal, a lawyer for the Center for Constitutional Rights, said, "If we can get a quick ruling from the court that the program is flatly illegal, that will provide some cover for congressmen and remove the administration's repeated defense of the program."
The Center filed a motion in federal court in New York for summary judgment, arguing that the Bush administration "has already admitted enough incriminating facts to prove the NSA program is illegal."
Justice Department spokesman Brian Roehrkasse said, "We believe the cases are without merit and we plan to vigorously defend against these charges."