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N.Y. terror case may pose key challenge to spy program

Lawyers allege illegal surveillance in sting operation

ALBANY, N.Y. -- After a bloody raid by US military forces on an enemy camp in Rawah, Iraq, on June 11, 2003, a Defense Department report took inventory. Eighty suspected terrorists killed. An enormous weapons cache recovered. And, in what the report called "pocket litter," a notebook with the name and phone number of the imam of a mosque halfway around the world, in Albany.

Prompted by that notebook and records of 14 phone calls between the imam, Yassin M. Aref, and Damascus, the FBI quickly began a sting operation aimed at Aref. Federal agents used an informant with a long history of fraud who spun tales to Aref about a fictitious plot involving shoulder-launched missiles and the assassination of a Pakistani diplomat in New York.

Aref and a friend who owned a pizzeria were convicted of supporting terrorism by agreeing to help launder money for the fake operation, and in March the two men were sentenced to 15 years in prison.

But their case seems far from over, and it has become a centerpiece in the effort to challenge one of the Bush administration's signature espionage programs.

Lawyers for Aref say they have proof that he was subjected to illegal surveillance by the National Security Agency, pointing to a classified order from the trial judge, unusual testimony from an FBI agent, and court documents concerning the calls to Syria.

If they are right, the case may represent the best chance for an appellate ruling about the legality of the NSA program, which monitored the international communications of people in the United States without court approval. Unlike earlier and pending appeals disputing the program, all of them in civil cases, Aref's challenge can draw on the constitutional protections available to criminal defendants.

In the civil cases, appeals courts have confronted significant threshold questions, including whether the plaintiffs have standing to sue.

"There are dodges available in civil cases that just aren't available in criminal cases," said Corey Stoughton, a lawyer with the New York Civil Liberties Union, which has filed supporting briefs in the case. "This case might be able to put this issue to the test."

In a brief filed this month, Aref's lawyers urged the federal appeals court in New York to rule that the program was unlawful and to reverse the convictions.

Last month, the federal appeals court in Cincinnati dismissed one appeal challenging the NSA program, ruling that the plaintiffs did not have standing to sue, and the federal appeals court in San Francisco heard arguments in appeals from two other challenges this month.

The wiretapping program was disclosed by The New York Times in December 2005. The next month, the Times reported that officials had cited the arrests of Aref and the pizzeria owner, Mohammed M. Hossain, as one of the relatively rare instances in which domestic surveillance by the NSA had played a role in a criminal case.

The case is significant in a second way, as a vivid illustration of a new form of preemptive law enforcement intended to stop terrorism before it happens, even at the expense of charges of entrapment.

Before the trial, Aref's lawyers asked the government for information about the NSA surveillance reported in the Times. In March 2006, the government responded to one request with a classified filing that the defense lawyers, who had security clearances, were not allowed to see. That same day, Judge Thomas J. McAvoy denied the defense request in a classified order.

The New York Civil Liberties Union and more than a dozen news organizations, including The New York Times, have filed supporting briefs in the appeals court objecting to the classified decision.

Pericak would not discuss the classified filings in the case.

Aref's lawyers also rely on a curious exchange with Special Agent Timothy Coll of the FBI, who was asked during his cross-examination whether Aref had been under 24-hour surveillance.

Pericak objected, saying that a truthful answer could "implicate classified information."

Aref's lawyer, Kent B. Sprotbery, rephrased the question, asking instead about 24-hour physical surveillance, implicitly leaving out electronic eavesdropping. To that question Coll answered no.

To set up the sting against the two men, the FBI turned to a Pakistani immigrant, Shahed Hussain, who took as many as 100 driver's license examinations on behalf of people with poor English skills.

No one disputes that Hussain's goal was to approach Aref, the imam named in the Rawah notebook. But he had no direct way to do that, so he worked through Hossain, a naturalized American citizen from Bangladesh who owned the Little Italy pizzeria, a modest, run-down place on Central Avenue.

Most of the conversations between the informant and his targets were recorded, and many were videotaped. They took place in fits and starts, in English, Arabic, and Urdu. There were code words, odd pronunciations, and misunderstandings.

But there was enough for the jury to conclude that Hossain understood from early on that the informant was talking about money laundering that would support terrorism and would leave Hossain $5,000 richer.

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