Bring in the Lawyers

Today's edition of the NYT offers the latest salvo in its "expose" of the National Security Agency's domestic surveillance program. Reporters Eric Lichtblau and James Risen, who broke the story two weeks ago, now write that defense attorneys representing terror suspects plan legal challenges to the wiretap program.

As my 13-year-old neice might observe: "Duhhh"

Of course, they'e planning legal challenges. For attorneys representing suspected terrorists, the Lichtblau/Risen series has been a legal godsend, veritable "motion manna" from jurisprudence heaven. Put yourself in their shoes for a moment. For months--even years--you've been representing suspects with reputed ties to Al Qaida and plots to kill Americans. It will be hard to convince a jury or military tribunal that these folks are innocent. Making matters worse, many of these suspects remain in legal limbo; as terrorist combatants, they are not entitled to the full legal rights and protections afforded to American citizens. It's a no-win situation for any defense attorney, even the well-known legal sharks who are representing some of the suspects.

Now, in the blink of an eye, the NYT is offering what may be a get out of jail card. If the defense lawyers can link their client to the NSA program--and that program is declared illegal--dozens, perhaps hundreds of terrorist suspects could potentially walk out of Guantanamo Bay and other U.S.-run detention facilities as free men. That is a positively chilling thought, but it could easily happen as legal challenges to the NSA program enter our nation's court system. And, despite past rulings that have upheld warrantless wiretaps, it's a good bet that defense attorneys can find a federal judge willing to break precedent, and declare that the program violates the Fourth Ammendment. Once freed, it's reasonable to assume that freed Al Qaida suspects would eventually return to their old ways, and again pose a threat to our national security.

Civil libertarians will argue that legal challenges will protect those falsely accused of terrorist ties. But it's also apparent that the legal maneuvering will include suspects whose terrorist activities appear well-documented, such as Iyman Faris, who planned to blow up the Brooklyn Bridge. According to the Times, Mr. Faris's attorney is already planning a legal challenge, based on recent disclosures about the NSA program. New appeals for other suspects

Running this story serves a couple of useful purposes for the NYT. First, it advances the story, keeping it on the public radarscope at a time when many Americans had begun to lose interest. Secondly, it reinforces the notion that the domestic surveillance effort was illegal, and finally, it creates another mechanism for killing the program altogether. Legal challenges to the program will mean access for defense attorneys, who (in turn) will conduct a veritable fishing expedition in the NSA archives, in an effort to link their clients with suspect or quasi-legal surveillance activities. At some point, the expected barrage of legal motions, lawsuits, and trials will effectively gut the program, and the government will shut it down. The Times will pick up another Pulitzer (or two), and the civil libertarians will rejoice.

And when that happens, Al Qaida will find it even easier to communication, coordinate, and attack.