Albany Times-Union : Suspects raise domestic spy issue

Suspects raise domestic spy issue

2 Albany Muslim men accused in FBI sting seek information

By BRENDAN LYONS, Staff writer | January 5, 2006

ALBANY -- The first formal challenge of a controversial national spying program has been raised in the case of two Albany men who were ensnared last year in an FBI counterterrorism sting.

Attorneys for the Muslim men, Yassin Aref and Mohammed Hossain, recently filed motions in U.S. District Court asking the government to disclose whether the pair were subjected to the domestic surveillance measures, which triggered a national debate when the activity was first exposed last month in a report by The New York Times.

The National Security Agency's domestic surveillance program relied on a secret directive issued by President Bush more than three years ago, in the wake of the 9/11 attacks, that allowed the cryptic NSA to circumvent court-authorized wiretaps in the hastened hunt for terrorists here and abroad. The Bush administration has defended the practice, contending it was a matter of national security, and not unlawful, to sift through thousands of phone calls and e-mails without a warrant or court order.

Bush said last week that the measures, implemented to monitor conversations between Americans and terror suspects abroad, are "consistent with my constitutional responsibilities and authorities."

But the Albany investigation is a sting case, which means the government will likely be compelled at trial to show the men were predisposed to take part in a terrorism plot without any urging from an FBI informant. However, if it turns out they were targeted because of information secretly gleaned from their e-mails or telephone calls, the entire case could be jeopardized if its foundation was based on an unlawful act, according to their attorneys.

In the wake of the 9/11 attacks, the FBI reshaped its mission to focus on counterterrorism. But many of their sting cases have drawn controversy.

The Albany-based sting began in July 2003 when the FBI sent an undercover informant, a Pakistani immigrant and Muslim, into Hossain's pizza shop to lure the men into a plot to make money from the sale of missile launchers to terrorists.

Federal authorities have admitted Aref was the "ultimate target" of their lengthy operation. Aref's name, phone number and Albany address were found in a notebook recovered from a bombed-out Iraqi encampment -- about two months before the sting began -- that the government contends was occupied by "terrorists."

It's not clear when the FBI learned of the notebook entry or if it triggered the sting. His lawyer said it's possible Aref was being monitored before the government collected any information tying him to terrorist figures.

Hossain's and Aref's confidential criminal history reports, which prosecutors have turned over to their lawyers, show no arrests outside of their Aug. 5, 2004, arrests in the sting case.

However, their criminal history reports, which are normally not public, refer to a U.S. attorney general's directive on April 11, 2002, regarding "known or suspected terrorists."

It's not clear why the entry is listed in their criminal history reports.

Assistant U.S. Attorney William Pericak, who is prosecuting the case, declined comment. Hossain's attorney, Kevin Luibrand, and Aref's attorney, Terence L. Kindlon, also declined to discuss their motions, citing judge's orders not to discus the case.

The 2002 directive from former Attorney General John Ashcroft ordered the FBI, the newly formed Foreign Terrorist Tracking Task Force and other federal agencies to begin coordinating their activities to fight terrorism. Ashcroft's memo also noted an Oct. 30, 2001, directive from Bush in which the President ordered that the task force should have access to electronic surveillance and other intelligence information "to keep foreign terrorists and their supporters out of the United States."

Even if Aref and Hossain were secretly monitored by the NSA, it's not clear whether their attorneys, or, the public, will ever know. So far, U.S. District Judge Thomas J. McAvoy, who is presiding over their case, has not granted any requests by defense attorneys for access to classified information gathered by the government.

Much of the material has been reviewed by McAvoy under seal, and not turned over to the defense teams.

The new request for access to any NSA surveillance records, if they exist, is scheduled to be addressed at a status conference slated for Monday in U.S. District Court in Albany.

Aref and Hossain were arrested last year on a 19-count indictment charging them with money laundering in connection with a plot to sell grenade launchers to terrorists. The government has since added more charges, including allegations the men conspired to provide material support to a Pakistani terrorist group, although the support was in the form of taking part in the FBI sting. There was never any real terrorist plot.

Hossain, a Bangladeshi immigrant who has lived in Albany for more than two decades, claims he was lured into the plot by an overzealous FBI informant.

Aref, 35, is an Iraqi-born religious scholar who was hired as imam at the Masjid As Salam mosque on Central Avenue soon after he arrived in the United States seven years ago. Aref and Hossain had been free on bond while their case is pending, but Aref's freedom was revoked by a federal judge on Sept. 30 when federal prosecutors filed a superseding indictment that contained allegations of Aref's past ties to terrorist organizations.

The case is expected to go to trial in the coming months.