Associated Press | November 20, 2007
By Mathew Barakat

McLEAN, Va. - A federal judge expressed frustration Tuesday that the government provided incorrect information about evidence in the prosecution of Sept. 11 conspirator Zacarias Moussaoui and raised the possibility of ordering a new trial in another high-profile terrorism case.

At a post-trial hearing Tuesday for Ali al-Timimi, a Muslim cleric from Virginia sentenced to life in prison in 2004 for soliciting treason, U.S. District Judge Leonie Brinkema said she can no longer trust the CIA and other government agencies on how they represent classified evidence in terror cases.

Attorneys for al-Timimi have been seeking access to documents. They also want to depose government witnesses to determine whether the government improperly failed to disclose the existence of certain evidence.

The prosecutors have asked her to dismiss the defense request. The government has denied the allegations but has done so in secret pleadings to the judge that defense lawyers are not allowed to see. Even the lead prosecutors in the al-Timimi case have not had access to the information; they have relied on the representations of other government lawyers.

After the hearing, the judge issued an order that said she would not rule on the prosecutors' motion until the government grants needed security clearances to al-Timimi's defense lawyer, Jonathan Turley, and the lead trial prosecutor so they can review the secret pleadings.

Brinkema said she no longer feels confident relying on the government briefs, particularly since prosecutors admitted last week that similar representations made in the Moussaoui case were false.

In a letter made public Nov. 13, prosecutors in the Moussaoui case admitted to Brinkema that the CIA had wrongly assured her that no videotapes or audiotapes existed of interrogations of certain high-profile terrorism detainees. In fact, two such videotapes and one audio tape existed.

Moussaoui, who had pleaded guilty to terrorism charges, was sentenced to life in prison last year. Because Moussaoui admitted his guilt, it is unlikely that the disclosures of new evidence would result in his conviction being overturned.

Turley, al-Timimi's defense lawyer, praised Brinkema for taking a skeptical view of the government's assertions in addressing al-Timimi's case.

"We believe a new trial is warranted," he said in a phone interview. "We are entirely confident that there are communications that were not turned over to the defense. These are very serious allegations."

Al-Timimi challenged his conviction in 2005 after revelations that President Bush had authorized the National Security Agency to conduct certain types of domestic surveillance without a search warrant. Turley contends that the program is illegal and that any evidence obtained from such surveillance should have been turned over to defense lawyers.

He is confident that al-Timimi, a prominent U.S. Muslim cleric who was known to keep close ties with radical Saudi clerics would have been a target of the surveillance program.

Brinkema made no rulings during the brief, 20-minute hearing in Alexandria, but her displeasure at the government was apparent. Prosecutors did not have the opportunity to speak during the hearing, except to note their appearance for the record.

Al-Timimi, a born U.S. citizen from Fairfax, was convicted after prosecutors portrayed him as the spiritual leader of a group of young Muslim men from the Washington area who played paintball games in 2000 and 2001 as a means of preparing for holy war around the globe.

After Sept. 11, they said, al-Timimi told his followers that the attacks were a harbinger of a final apocalyptic battle between Muslims and nonbelievers and exhorted them to travel to Afghanistan and join the Taliban to fight U.S. troops.

Several of his followers admitted that they traveled to Pakistan and received training from a militant Pakistani group called Lashkar-e-Taiba, but none actually joined the Taliban.

A spokesman for the U.S. attorney's office in Alexandria declined to comment Tuesday.