Panel to Call for Probe Into Wiretapping of Scholar
By ERIC LICHTBLAU and JAMES RISEN
Published: December 7, 2008
WASHINGTON — A Congressional oversight panel plans to ask the National Security Agency to start an investigation into new evidence that the agency illegally wiretapped a Muslim scholar in Northern Virginia and concealed the eavesdropping during a 2005 trial in which the scholar was convicted on terrorism charges.
Representative Rush Holt, a New Jersey Democrat and chairman of the Select Intelligence Oversight Panel, said in an interview that he planned to ask the inspector general of the N.S.A. to open what would be the first formal investigation by the agency into whether its eavesdropping program had improperly interfered with an American’s right to a fair trial.
Mr. Holt said he was responding to new evidence presented to him and other Congressional leaders by the Muslim scholar’s lawyer indicating that the Bush administration tried to hide the full extent of the government’s illegal spying in the criminal case.
If the N.S.A. inspector general begins an inquiry, analysts said, that could also signal a new willingness by the agency, under a new administration, to examine its own operations in the eavesdropping program.
President-elect Barack Obama was a critic of the Bush administration’s domestic spying program while he was in the Senate and on the campaign trail, and experts on intelligence matters are waiting to see whether he takes action early in his administration to rein in the program.
“I find the allegations troubling,” Mr. Holt said. His select intelligence panel was created last year by Speaker Nancy Pelosi, Democrat of California, in response to the 9/11 Commission’s recommendations to provide more comprehensive Congressional oversight of the intelligence community.
The scholar, Ali al-Timimi, once a spiritual leader in Northern Virginia and described by prosecutors as a “rock star” in the Islamic fundamentalist world, is now serving a life sentence in federal prison after he was convicted in 2005 on charges of inciting his Muslim followers to commit acts of violence overseas.
Prosecutors described Mr. Timimi as the spiritual mentor to a group of young men in Northern Virginia who were convicted of giving material support in Kashmir to Lashkar-e-Taiba — the separatist group blamed by the Indian authorities for the recent attacks in Mumbai. Several of the Northern Virginia men had received paramilitary training in Pakistan, apparently at the urging of Mr. Timimi, but there was no evidence that they had taken part in any terrorist attacks.
Mr. Timimi’s lawyers maintain that the N.S.A., without acquiring court-approved warrants, used the eavesdropping operation approved by President Bush weeks after the Sept. 11 attacks to wiretap his communications, and that the interceptions might include evidence that would point to his innocence in what they regard as a free-speech case. They charge that the government has intentionally withheld that material despite repeated requests.
The Justice Department has denied that it had any other evidence of eavesdropping against him other than what it turned over to his lawyers. But the federal judge in the case, Leonie M. Brinkema in Alexandria, Va., has expressed increasing annoyance over persistent questions about the N.S.A.’s possible role.
In a recently unsealed transcript of an October closed-court hearing in the case, the judge stated that she believed that the government appeared to have committed violations of federal rules governing evidence and discovery. She also ordered the government to search for further evidence of its use of secret surveillance operations against Mr. Timimi.
A review of the public court file in Mr. Timimi’s case, which includes the titles of classified filings, also strongly indicates that the court has received evidence that the N.S.A. was used to intercept conversations between Mr. Timimi and Suliman al-Buthe, a Saudi fundamentalist with suspected ties to terrorism. During Mr. Timimi’s trial, prosecutors presented evidence that in a phone conversation with Mr. Buthe, Mr. Timimi had celebrated the 2003 destruction of the space shuttle Columbia. But the government has never publicly acknowledged that it used the N.S.A. program to intercept conversations between the two men.
In a letter sent Thursday to Mr. Holt and other members of the Congressional intelligence committees, Jonathan Turley, a lawyer for Mr. Timimi, said that a classified filing given to Judge Brinkema had “revealed that some of the interceptions (that were specifically sought) did in fact exist.”
Mr. Turley said in the letter that he had met with the N.S.A. inspector general’s office last week on a separate matter and briefed staff members there on the Timimi case.
“In that meeting, we discussed how best to open an investigation into the matter,” he wrote, and the inspector general’s staff made it clear that a formal referral from Congress for investigation would make it easier for them to start an inquiry. The security agency’s inspector general’s staff recommended that he make a formal complaint to Congress and request an internal agency investigation, Mr. Turley wrote in his letter sent to the intelligence committees. “Once a referral is made, I can then bring the specific evidence of misconduct to the N.S.A. for internal investigation.”
A spokesman for the N.S.A. declined to comment.
The N.S.A. inspector general’s office conducted periodic audits into the eavesdropping program even before it became public in December 2005, but Democrats on Capitol Hill complain that the agency has been unwilling to examine the operations of the program to answer critical questions about how it was run and what oversights were in place to protect Americans’ civil liberties.
Some Democrats have called on Mr. Obama to establish an independent commission that would examine the wiretapping program, interrogation tactics used on prisoners, and other tactics used by the government in its campaign against terrorism since the 2001 attacks.
Republicans in Congress who support the N.S.A. program say that Democrats have been too eager to investigate issues that have long been resolved.