Government to Use FISA Surveillance Evidence in Zazi Terror Plot Case

By Jeralyn, Section War on Terror
Posted on Mon Sep 21, 2009 at 02:30:00 PM EST
Tags: Najibullah Zazi (all tags)

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Update: 2:00 pm: Mohammed Zazi is ordered released on bond, he will be on home detention and can go home as soon as it's installed in the house (could take a few days.) The Government did not seek to detain him. A detention hearing is set for Thursday at 9:00 a.m. for Najibullah Zazi. He will remain in custody until then. His lawyer Arthur Folsom will continue to represent him.

Bump and Update 1:30 pm MT: The Government has filed notices in both the cases of Najibullah Zazi his father Mohammed Zazi that it will be introducing and/or using evidence obtained from FISA electronic surveillance and searches. The notices read:

.... the United States intends to offer into evidence, or otherwise use or disclose in any proceedings in the above-captioned matter, information obtained and derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829.

Their initial appearances in court were at 1:30 p.m. Zazi's lawyer, Arthur Folsom, arrived at 9:45 a.m. (I ran into him in the clerk's office, he was getting a "green card" that allows lawyers to bring phones with cameras into the building.)

Mohammed Zazi has asked to have the public defender appointed for him. [More...]

Original Post

Najibullah Zazi: Court Hearing Today

Accused false-statement makers Najibullah Zazi and his father will have their initial appearance in U.S. District Court today. They have been held at the Denver City Jail since their arrest Saturday night.

The Zazi's lawyer has had no comment since their arrest.

Zazi's attorney, Art Folsom, preferred not to comment on the affidavits, spokeswoman Wendy Aiello said Sunday. "He is at work," she said, "preparing for court."

Prior coverage here, case documents below:

The irony of the case is that had Zazi just kept his mouth shut, there would be no charges. As I wrote over the weekend:

I think it was a disasterous decision for Najibullah to voluntarily talk to the feds. He had no idea what information they had. Had he kept his mouth shut, there would be no false statement charge. If he's convicted of the false statement charge, he will be deported after he serves any sentence. (His father is a U.S. citizen.) If his goal in talking was to clear his name, that certainly failed. If it was to get a sweetheart deal, that seems to have backfired too.

I'm on my way down to the federal building for a hearing in one of my cases. If it's not at the same time as the Zazis', I'll try to attend those as well and report back later.

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Government to Use FISA Surveillance Evidence in Zazi Terror Plot Case | 14 comments (14 topical)

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I suppose the FISA evidence means (5.00 / 1) (#4)
by scribe on Mon Sep 21, 2009 at 02:59:32 PM EST

the lawyer will have to get cleared to see what his client allegedly communicated.

It also seems to validate my earlier deduction, presented in this comment.

Does it also mean (none / 0) (#6)
by shoephone on Mon Sep 21, 2009 at 03:13:45 PM EST

none of that FISA-obtained evidence can be discussed in open court?


: More than likely, in my opinion (none / 0) (#7)
by scribe on Mon Sep 21, 2009 at 03:19:11 PM EST

it will keep discussion of the FISA-derived evidence in a closed courtroom.
Which, BTW, also means that we get that favorite of totalitarians everywhere: A Secret Criminal Trial!

yes, ordinarily when FISA evidence (none / 0) (#10)
by Peter G on Mon Sep 21, 2009 at 05:11:15 PM EST

is involved, the defense attorney must agree to submit to at least some level of security screening by the government, and must pass the screening. A potentially troubling issue under the Sixth Amendment (defendant's right to counsel of choice).


You're so right (none / 0) (#1)
by Zorba on Mon Sep 21, 2009 at 08:53:21 AM EST

Jeralyn. At this point, if the feds came knocking at my door and asked me if I knew what time it was, I'd say, "Let me consult with my lawyer, and we'll get back to you." And I would keep repeating that, no matter what they said or asked, until they got bored and went away. Then I would follow my lawyer's advice. They get so many people, not on substantive charges, but on "making false statements."

Rather thin soup they're presenting, (none / 0) (#2)
by scribe on Mon Sep 21, 2009 at 10:27:05 AM EST

but it looks like enough to support charging these defendants.

I love it... (none / 0) (#3)
by JamesTX on Mon Sep 21, 2009 at 10:31:28 AM EST

"accused false statement makers". The Feds aren't the only ones doing it. It's a frightening thought to think what I would say if questioned even by locals, because here that means if you fail to comply in any way there is a good chance they'll beat you senseless or use electric torture...or both.

: Isn't that a bit of an exaggeration? (none / 0) (#9)
by oculus on Mon Sep 21, 2009 at 04:49:27 PM EST

No surprise to me on the timing on this (none / 0) (#5)
by scribe on Mon Sep 21, 2009 at 03:07:40 PM EST

whole case coming so quickly to a head, given that the so-called PATRIOT Act is up for reauthorization this fall and a bunch of Dem senators (including Leahy) recently introduced a bill to cut back the FISA amendments and eliminate the retroactive telecom immunity.

The mere fact that news reports keep harping on how "not all of the cell members are in custody" or something to that effect tells me this is another politically-driven and therefore hurried-up bust, just like the London airplane bombers were hurried up to stomp on Joe Lieberman losing the '06 senatorial primary.

Only this time, I think the entity driving the hurrying things up was the FBI, and not the political branches in the WH. The Bureau wants to keep that wiretapping going.

First principle of Bureaucracy:

"always act in such a way as to preserve the existence of your job."

Corollary to the First Principle:

"never surrender any power or authority, and when it is threatened by an outside force make a show of exactly why you need to keep and expand it, even if the show is founded in patent bullsh*t".

If the arrogations of power are rolled back, the FBI loses what it had gained - and that's a failure of epic proportions, bureaucratically speaking.

The timing (none / 0) (#8)
by Zorba on Mon Sep 21, 2009 at 04:46:16 PM EST

does seem quite suspicious, and although they may have enough evidence to charge, it may not be enough to convict. It seems like they jumped the gun on this a bit, perhaps, as you suggest, to gin up support for continuing the wiretapping program, et al.

PS Can any of the lawyers on this board explain why it's illegal to lie to the cops (while you're not under oath), but it's okay for the cops to lie to a suspect?


SCOTUS says it is constitutional for (none / 0) (#11)
by oculus on Mon Sep 21, 2009 at 05:30:47 PM EST

law enforcement to make false statements when questioning a person. I assume federal statutory law provides a criminal penalty for making false statements to a federal law enforcement officer.


Thank you (none / 0) (#12)
by Zorba on Mon Sep 21, 2009 at 05:42:39 PM EST

I've always wondered. I think SCOTUS is wrong on this- if we must tell the truth to them, they should have to tell the truth to us (that doesn't mean that they have to tell a suspect everything they know). If they can lie with impunity, then we should be able to, as well, as long as we're not under oath. There must be criminal penalties for making false statements to the feds- that's what they ultimately sent Martha Stewart to prison for, as I recall. It's a stupid charge, as far as I'm concerned. In any case, better safe than sorry- tell them absolutely nothing, and consult a lawyer.


It is illegal to lie to a federal agent (none / 0) (#13)
by Peter G on Mon Sep 21, 2009 at 07:45:01 PM EST

because Congress has chosen to make it a crime. Congress has not chosen to prohibit federal agents from lying in the course of their duties (and even if that were illegal, the consequence would not necessarily be exclusion of the suspect's resulting confession; it might, for example, be a disciplinary action against the cop). And as Oculus suggested, the Supreme Court has ruled that incriminating remarks made in response to false statements by law enforcement officers are not necessarily rendered "involuntary" by that fact, and hence are not necessarily inadmissible against the accused later in court. (I say "not necessarily," because "trickery" is always listed as a factor which, in combination with others, can render a statement made in response to interrogation "involuntary.") In other words, police lying to a suspect does not by its nature "compel" him "to be a witness against himself," like prolonged interrogation or physical abuse, in violation of the Fifth Amendment.


: Yet more (none / 0) (#14)
by Zorba on Mon Sep 21, 2009 at 08:25:20 PM EST

reasons to clam up if questioned by law enforcement. Thanks for the explanation.