Spying Program May Be Tested by Terror Case
Lawyers for Mr. Aref say they have proof that he was subjected to illegal surveillance by the National Security Agency, pointing to a classified order from the trial judge, unusual testimony from an F.B.I. agent and court documents concerning the calls to Syria.
If they are right, the case may represent the best chance for an appellate ruling about the legality of the N.S.A. program, which monitored the international communications of people in the United States without court approval. Unlike earlier and pending appeals disputing the program, all of them in civil cases, Mr. Aref’s challenge can draw on the constitutional protections available to criminal defendants.
In the civil cases, appeals courts have confronted significant threshold questions, including whether the plaintiffs have standing to sue.
“There are dodges available in civil cases that just aren’t available in criminal cases,” said Corey Stoughton, a lawyer with the New York Civil Liberties Union, which has filed supporting briefs in the case. “This case might be able to put this issue to the test.”
[…] The case is significant in a second way, as a vivid illustration of a new form of pre-emptive law enforcement intended to stop terrorism before it happens, even at the expense of charges of entrapment.
“The Federal Bureau of Investigation has an obligation to use all available investigative tools,” prosecutors wrote in a brief urging the court to impose harsh sentences in February, “including a sting operation, to remove those ready and willing to help terrorists from our streets.”
[…] Terence L. Kindlon, a lawyer for Mr. Aref, saw the matter differently.
“The F.B.I. case was a hoax that grew out of the Bush administration’s misuse of fear to turn our democracy into a dictatorship,” Mr. Kindlon said.