A U.S. judge says he may let four defendants listen to all wiretaps recorded in a years-long terrorism investigation.
By GRAHAM BRINK
Published August 7, 2003
TAMPA - Sami Al-Arian moved a step closer Wednesday to accessing all the audio tapes secretly recorded during the investigation that led to his arrest on terrorism charges, despite the government's contention that the tapes should remain classified.
U.S. District Judge James Moody indicated in court that in the interest of a fair trial, Al-Arian and three co-defendants should be able to listen to the more than 20,000 hours of wiretap tapes the FBI made during a years-long terrorism investigation.
"My inclination is to let them hear it all," Moody said, quickly adding that any of the classified information should not be discussed "outside the confines of the case."
Moody told federal prosecutors he could be convinced otherwise, but they would have to make a detailed presentation about what secrets would be revealed by allowing the defendants to listen to the tapes.
But their arguments "cannot be just general statements" about protecting national security or keeping them classified in the public interest, Moody said.
Moody did not rule officially on the matter. The lawyers will meet again Sept. 12 to discuss it further. Moody has to weigh the defendants' right to examine all the evidence they face against the government's desire to keep some material under wraps using the Classified Information Procedures Act.
Federal agents arrested Al-Arian, a former University of South Florida professor, and three other men in February on charges that they supported, promoted and raised money for the Palestinian Islamic Jihad, a terrorist group considered responsible for more than 100 deaths.
Federal prosecutors say agents taped thousands of telephone conversations over the past decade - most of them in Arabic - while they had Al-Arian and the other men under surveillance.
The government declassified the 250 or so conversations listed specifically in the indictment, paving the way for the defendants to listen and analyze them. But the remaining conversations - more than 20,000 hours' worth - remain classified.
The defense attorneys and Al-Arian, who is representing himself, have argued they have a right to listen to those tapes. The classified tapes could contain information that helps exonerate the defendants or cast a different light on the allegations in the indictment, they argued.
In another possible scenario, the defense attorneys, who were told several months ago to apply for security clearance, could listen to the tapes, but not discuss what they heard with their clients. If they heard anything they thought was pertinent to the defense, the lawyers then would have to ask the judge to allow them to reveal the classified material to their clients, who do not have security clearance.
That scenario would also make it difficult for the defense lawyers to talk to witnesses about what's on the tapes, said Fletcher Peacock, the U.S. public defender for the Middle District of Florida.
"If we have to come to court each time to ask if we can use some information, I think that is an untenable arrangement," said Peacock, who represents Hatem Fariz.
Federal prosecutor Terry Zitek said that allowing the defendants to listen to classified material could reveal "the sources and methods" of how the FBI operates in these types of investigations. Zitek said that could be "harmful to the security of the United States if made known."
Zitek, however, also told the judge the whole matter could be rendered moot in the next few weeks. He said officials at the "highest level" of the Department of Justice are reviewing the issue. A possibility exists that those officials could decide to declassify some or all of the remaining tapes, he said.
That "might save everyone a lot of time and trouble," he said.
Moody agreed to delay the hearing until Sept. 12.
Al-Arian spoke briefly during the hearing via teleconference equipment from the Coleman Correction Facility in Sumter County, where he remains without bail. He again protested the conditions of his confinement, complaining that prison officials continue to open his legal mail outside of his presence and that he has limited access to writing materials.
He wants access to all the tapes, saying his review of the few declassified tapes made available to him has unearthed mistakes in the translation from Arabic to English. The mistakes cast what he said is a sinister light, when it had an "entirely opposite" meaning, he said.
