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Plotter seeks spy ruling on his case

BY TOM BRUNE | NEWSDAY WASHINGTON BUREAU

February 3, 2006

WASHINGTON - The Ohio trucker who pleaded guilty to an al-Qaida plan to destroy the Brooklyn Bridge with gas torches three years ago is now seeking to vacate his conviction, in part based on the reported use of National Security Agency warrantless wiretaps on him.

The conviction of trucker Iyman Faris has been cited by unnamed officials in news reports as a justification for the controversial, and what many lawyers call illegal, NSA surveillance since The New York Times revealed it on Dec. 16.

A federal habeas corpus motion to be filed today asserts that Faris received ineffective legal representation, faulting his first lawyer, J. Frederick Sinclair, for, among other things, failing to ask prosecutors if his client had been subject to NSA wiretaps.

The motion asks the court to vacate the conviction based on Faris' guilty plea on May 1, 2003, to two counts of providing material support to al-Qaida, said Faris' current lawyer, David B. Smith.

Faris now denies the story he told FBI agents about scouting the Brooklyn Bridge for 9/11 mastermind Khalid Sheik Mohammed. He tried to withdraw his guilty plea in September 2003. The courts refused to let him.

A Justice Department spokesman said, "He was convicted by his own words."

Smith acknowledged that this is Faris' last shot. But he said, "This is his best shot, because his best issue is ineffective assistance of counsel."

Sinclair yesterday declined to discuss the motion until he has read it, but he said he stood by his legal work for Faris.

Smith is one of several attorneys for clients convicted on terrorism-related charges to ask about the use of evidence from the NSA in their cases.

On March 19, 2003, FBI agents first contacted Faris at his Ohio home based on a tip, Smith said he believes, from an NSA tap in another case. That same day Mohammed told his interrogators about Faris, Smith said.

The next day, agents went back to Faris. He agreed to cooperate, first in a nearby hotel and later at an FBI facility. He was not arrested, charged, or given Miranda warnings or an attorney, Smith said.

Faris was allowed to use his cell phone, Smith said, and his calls likely were monitored by the FBI with a warrant and the NSA without.

Faris is now serving 20 years at the maximum-security prison in Florence, Colo.