Federal judge won't toss out FISA surveillance against lawyer [priv]

[Declan McCullagh <declan () well com>]

Related news coverage of this case:
> http://www.nynewsday.com/news/local/crime/nyc-nylynn063527720nov06,0,5501696.story?coll=nyc-manheadlines-crime
> A federal judge refused to toss out the remaining conspiracy charge 
> against civil rights lawyer Lynne Stewart yesterday, saying that the U.S. 
> attorney's office in Manhattan had made no agreement to avoid prosecuting her.
> Stewart, who represented Sheik Omar Abdel Rahman, who was convicted of 
> plotting to bomb New York City landmarks in 1995, was indicted last year 
> on charges she and two others had served as the secret conduit between the 
> cleric and his followers in the terrorist organization known as the 
> Islamic Group. [...]

---

UNITED STATES OF AMERICA - against - AHMED ABDEL SATTAR, a/k/a "Abu Omar," 
a/k/a "Dr. Ahmed," YASSIR AL-SIRRI, a/k/a "Abu Ammar," LYNNE STEWART, and 
MOHAMMED YOUSRY, Defendants.

02 Cr. 395 (JGK)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


November 3, 2003, Decided
November 5, 2003, Filed

---

Defendant Stewart has moved for an evidentiary hearing on both "government 
noncompliance with discovery obligations, principally concerning electronic 
surveillance evidence," and the "admissibility of electronic surveillance 
evidence." (Notice of Mot. dated July 25, 2003, at 1.) Stewart contends 
that the motion is warranted because the Government has acknowledged that 
it is unable to retrieve roughly two percent of the unminimized voice calls 
recorded pursuant to the Foreign Intelligence Surveillance Act of 1978 
("FISA") pertinent to this case, and because the FBI's procedures for 
handling electronic evidence allegedly raise doubts about the admissibility 
of the electronic surveillance evidence. For the reasons that follow, the 
motion is denied.

...

Stewart's motion is without any merit because she can show neither 
materiality nor bad faith. Stewart provides no support for her conclusory 
allegations that the irretrievable evidence is exculpatory. She insists 
that the tapes would be exculpatory because the "electronic surveillance 
files, taken as a whole, would exculpate Lynne Stewart because they show a 
conscientious, ethical lawyer doing her job," and because they show "that 
most of the conversations are in a language she does not speak or 
understand." (Reply Declaration of Michael E. Tigar dated Sept. 29, 2003, 
at P 3.) These statements do not even attempt to analyze the tech cuts for 
the 114 audio files to show why those audio files would be relevant to 
Stewart or the proffered generalizations. Nor is there any effort to place 
the specific audio files in context to lend any credence to any allegation 
that those conversations would be relevant, much less exculpatory for 
Stewart. Similarly, having had access for many months to the thousands of 
audio files, including those that the FBI did not think pertinent enough 
even to summarize at the time, there is no showing from the context of 
those audio files that the unretrieved and [*9]  unsummarized conversations 
are exculpatory in any way for Stewart. Finally, there is no showing why 
the unretrieved conversations are significant in showing that most of the 
conversations are in a language Stewart does not understand. The language 
on the tapes can be deduced from the overwhelming number of conversations 
that have been produced, and there is no showing that Stewart was even a 
participant in any of the unretrieved conversations.

Stewart's motion to sanction the Government for failure to preserve all of 
the audio files also fails for the independent reason that she has not 
shown any bad faith on the part of the Government. Stewart contends that 
the Government's bad faith is evident in the FBI's alleged track record for 
sloppiness in storing and retrieving electronic evidence, an allegation she 
supports by referring to various public records, articles, and websites 
that have been critical of the FBI in this regard.

...

 Stewart contends that the deletion or non-disclosure of the underlying 
electronic file formats amounts to destruction of the original evidence for 
purposes of the best evidence rule, as well as destruction of potentially 
exculpatory evidence. However, it is plain under the legal standard 
discussed above that no sanctions are warranted against the Government 
because Stewart has made no showing that the underlying electronic files 
contain exculpatory evidence or that the Government deleted the files in 
bad faith. Indeed, the Government proffers that the materials disclosed to 
the defendants exactly replicate the fax and internet images that were 
recorded pursuant to FISA and that were accessed by the FBI in the course 
of the intelligence investigation.

...

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