JONATHAN TURLEY

For eighteen months, the remanded case of Dr. Ali Al-Timimi has been handled largely in sealed hearings due to classified evidence. Because today’s hearing was open to the public, I am able to share a little more information on the developments in the case. The appeal of Dr. Al-Timimi was remanded to Judge Leonie Brinkema after the disclosure of the NSA domestic surveillance program. The defense has argued that there is ample reason to believe that Dr. Al-Timimi was subject to interceptions of his communications as were some of his alleged co-conspirators in the so-called Virginia Jihad. The defense has supplied the dates and even telephone numbers for these communications.

In today’s hearing, we opposed the effort of the government to quash our discovery requests for interceptions of Dr. Al-Timimi and key witnesses related to the underlying charges. With me in court was co-counsel Will Olson of Bryan Cave LLP. who has served as local counsel for Dr. Al-Timimi.

Since we secured the remand from the Fourth Circuit, we have objected to the use of ex parte communications by the government, which has refused to allow counsel to review a single document. Even government counsel in the case have been denied access to the material and the ex parte communications. This has effectively reduced the case to a private conversation between the Court and unnamed individuals in unnamed agencies. In the most bizarre moments, the government has been arguing that the ex parte communications are clearly valid and dispositive despite the fact that they are not allowed to see them. Judge Brinkema has repeatedly encouraged the government to change its position on the exclusion of counsel and to respect the adversarial process. After the remand, government insisted that counsel be cleared in the case and delayed any hearings until such clearances were secured. Yet, after the clearances were approved, the government then refused to show a single document to counsel and proceeded to exclude its own trial counsel from access. As seen in other cases, this creates a type of plausible deniability for trial counsel who are kept from having actual knowledge of the matters that they are addressing in court.

Judge Brinkema stated today that she agrees with the defense filing and that she no longer feels comfortable with the role that the court is playing in these ex parte matters. She specifically referred to the recent disclosure related to the trial of Zacarias Moussaoui.On Nov. 9, the CIA for the first time revealed that it has three video and audio recordings of interrogations of senior al Qaida captives. The admission showed that the government misled Judge Brinkema and other federal judges about the evidence during the case against terrorist Moussaoui.The media has reported:

Prosecutors revealed the existence of the tapes in a letter to Chief Judge Karen Williams of the 4th U.S. Circuit Court of Appeals in Richmond, Va ., and to U.S. District Judge Leonie Brinkema of Alexandria, Va ., the trial judge in the tumultuous, 4-year prosecution of Moussaoui. In it, they said that the CIA didn’t notify them until Sept. 13 that it had discovered a videotape and the transcript of an interrogation of an unidentified detainee. Prosecutors said they then asked the CIA to perform “an exhaustive review” for any other recordings of roughly a half dozen al Qaida captives whom Moussaoui had sought as defense witnesses, and a second videotape and a brief audio tape were discovered.Among the prisoners whose testimony Moussaoui sought were Khalid Sheikh Mohammed , who allegedly admitted masterminding the 9/11 attacks after he was waterboarded; Ramzi Binalshibh, a senior al Qaida member who allegedly coordinated the attacks; and financier Mustafa Ahmed al Hawsawi . Summaries of statements from those three and several others were read at his trial.”The fact that audio/video recording of enemy combatant interrogations occurred, and that the United States was in possession of three of those recordings is, as noted, inconsistent with factual assertions in CIA declarations dated May 9, 2003 . . . and November 14, 2005 ,” the prosecutors wrote.                

For the full story on the CIA disclosure, click here

Today, Judge Brinkema called the Moussaoui matter a “mess” and stated that she could no longer rely on the representations of the government after the obvious misrepresentations. She stated that she relied on false representations in making rulings in the Moussaoui case. While she stated that she doubted it would change the outcome of the Moussaoui case given his guilty plea, she noted that the case of Dr. Al-Timimi is clearly different since he has always denied guilt.  Judge Brinkema stated that, unless the government changes its extreme position in the Al-Timimi case, she will have no alternative but to seriously consider ordering a new trial in the case. She ordered the government to get back to her on whether it would change its position and grant access to both the defense and its own trial counsel.  

We are obviously grateful to Judge Brinkema in taking this principled stance. At issue are the most fundamental guarantees of a fair trial and adversarial process in our system.  We believe strongly that material has been withheld in the case despite statements from the government at trial that all such evidence had been turned over to the defense. Most importantly, Dr. Al-Timimi is entitled to have his cleared counsel review such information and argue its materiality rather than shadow box with some unknown individual making unknown arguments in secret. As the United States argues for the rule of law in countries such as Iran, one would hope that the Bush Administration would take particular care to honor those same principles in our own country.  We hope that the government will heed the warning of Judge Brinkema and allow its arguments to be tested in the adversarial process required by the Constitution and federal statutory law.

Jonathan Turley
Lead Counsel for Dr. Ali Al-Timimi