Attorneys for Muslims want evidence tossed

PORTLAND, Ore.--Attorneys for two American Muslims charged with conspiring to wage war against the United States have asked a federal judge to throw out evidence gathered under the FBI's new spy powers in the Patriot Act.

The attorneys could not offer specific arguments for why the evidence should be dismissed, because the government has classified affidavits that explain its reasons for collecting the information.

The attorneys asked to suppress 36 secret warrants that allowed the FBI to electronically intercept 271 conversations and bug the Portland-area home of at least one of seven defendants.

FBI agents arrested the members of the group, mostly native-born American Muslims, in October 2002 and charged them with conspiring to travel to Afghanistan to join the Taliban in its fight against U.S. troops.

Under the anti-terrorism legislation, prosecutors are not required to reveal to defense attorneys their justification for placing wiretaps or bugs.

Lawyers for Martinique Lewis and Jeffrey Leon Battle have argued the secret warrants violated their clients' right to privacy. Earlier, a judge ruled that the basis for the warrants could remain secret.

The FBI says the secret warrants allow the agency to share intelligence information with criminal investigators in terrorism cases, and has stepped up use of the warrants since Sept. 11.

Battle tries to keep computer out of court

Portland 7 defendant seeks to quash evidence from several sources

By JANINE ROBBEN Issue date: Fri, Aug 29, 2003
The Portland Tribune

In May 2002, Portland Seven co-defendant Jeffrey Leon Battle met a fellow Muslim, Khalid Mostafa.

Within two weeks of that meeting, Battle's attorney says, Battle trusted Mostafa so much that he gave him his faulty computer to trade in, a computer that Battle cautioned couldn't fall into the wrong hands because it had incriminating material on its hard drive.

Mostafa replaced the computer with another. But Battle's trust in him was misplaced, because Mostafa was an undercover informant.

"Of course," says Battle's attorney, Kristen Winemiller, the old computer "immediately went to the FBI."

The computer is one subject of motions filed by Battle and other co-defendants to suppress evidence in the Portland Seven case. The motions also seek to suppress the government's electronic surveillance of Battle's apartment and the interception and recording of 271 telephone conversations that allegedly involve various members of the Portland Seven.

Federal prosecutors have until today to file their arguments against the motions, which are scheduled to be heard Oct. 1 before U.S. District Judge Robert Jones.

The Portland Seven are charged with conspiracy to levy war against the United States and other federal crimes. One of the co-defendants, Maher Mofeid "Mike" Hawash, pleaded guilty to one charge Aug. 6 and agreed to provide information against his alleged co-conspirators and others. The remaining co-defendants have pleaded not guilty. They are Battle and his ex-wife, October Martinique Lewis, with whom he shared a Southwest Portland apartment; brothers Ahmed Ibrahim Bilal and Muhammad Ibrahim Bilal; Patrice Lumumba Ford; and Habis Abdulla Al Saoub, who remains a fugitive.

Affidavit implicates sheik

An FBI affidavit made public last week says evidence obtained from one of the intercepted and recorded conversations also implicates Sheik Mohamed Abdirahman Kariye, the spiritual leader of a Southwest Portland mosque, Masjed As-Saber.

According to a transcript of a conversation recorded July 12, 2002, between Portland Seven co-defendants Ford and Muhammad Bilal, Ford appears to say that Kariye had suggested they would need forged documents for their mission to fight in Afghanistan against the United States.

According to other conversations excerpted in the affidavit, Kariye had supported the alleged conspiracy by advocating for Muslims to fight against U.S. forces in Afghanistan and by raising $12,000 for the unsuccessful trip to Afghanistan from unidentified worshipers at Masjed As-Saber.

Those conversations were recorded by Mostafa, who was wearing a body wire, which is permitted by current federal law.

According to Battle attorney Winemiller, Battle and Lewis are challenging the government's use of electronic survelliance via "bugs" placed in their apartment and on their phones by investigators or hidden on the computer that Mostafa brought in to replace Battle's computer, which the government contends is allowed under the USA Patriot Act. The motions are challenging the constitutionality of the act.

Between Aug. 2 and Oct. 4, 2002, Winemiller told Jones in a legal memorandum, this bug made "continual, uninterrupted recordings of all household activity."

"The conversations and activities captured through the eavesdropping device are almost all highly personal in nature," Winemiller said. Winemiller added that learning of the bug's existence caused Battle and Lewis "great distress and embarrassment."

Possible clues to defense

In addition to raising legal arguments, the motions also provide some clues to the defenses that the remaining co-defendants may offer at their trial in January, if they don't join Hawash in striking plea bargains before then:

• They are looking for ways to discredit Mostafa, alluding, in their motions, to "information" that the undercover informant smoked marijuana while meeting with unnamed individuals and tried to sell guns to various people associated with Masjed As-Saber, including Battle and Kariye.

• Battle may try to undercut the credibility of his own admissions about the alleged conspiracy, including those made to Mostafa. In the motions, he asks the court to order the government to produce "all documents suggesting and/or demonstrating that (he) was emotionally or psychologically fragile" before his Oct. 4 arrest. Winemiller's legal memorandum also refers to Battle's trying to "impress" Mostafa with a "greatly embellished" account of his travel and other activities.

According to the defendants' motions, investigators contacted Mostafa, who was being investigated in connection with another alleged crime, after mistakenly connecting him to their investigation of another Portland Muslim, Ali Khaled Steitiye. In Winemiller's words, the federal agents, in lieu of pursuing the case against Mostafa, subsequently "inserted" Mostafa into the Portland Muslim community and the lives of Battle and Lewis.

Steitiye is a named but unindicted co-conspirator in the Portland Seven case, based on his allegedly having taken part in a weapons practice, two weeks after the events of Sept. 11, 2001, at a Washington state gravel pit with defendants Al Saoub, Battle, Ahmed Bilal and Ford.

Battle also allegedly told Mostafa that he and Steitiye conspired, in 2001, to kill Jews at a Portland area synagogue or Jewish school.

On Oct. 24, 2001, while Battle was in China, Steitiye was arrested for illegal weapons possession and other charges. He was convicted of the charges in 2002: His appeal of those convictions was denied earlier this month.

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