TerrorismTexas terror case may hinge on reason for a FISA warrant

The Foreign Intelligence Surveillance Act (FISA), passed in 1978, was the center of a Fifth Circuit Court of Appeals trial last Thursday in New Orleans. The case involves Khalid Ali-M Aldawsari, a former Texas Tech student serving a life sentence for an attempted use of a weapon of mass destruction.

Attorneys for the Justice Department and Aldawsari argued over the secrecy in obtaining search warrants through FISA.

In February 2011 FBI agents arrested Aldawsari after searching his apartment and finding large quantities of two of three chemicals needed to make an explosive called picric acid, along with a bomb making instruction. Investigators also discovered dismantled clocks, potential fusing equipment, and notes in his journal about waging jihad.

The Amarillo Globe-News reports that the FISA Court issued the warrants which gave FBI agents permission to search Aldawsari’s apartment for chemicals, install listening devices in the apartment, and monitor his computer activity. Aldawsari’s defense attorneys are barred from viewing the applications for the FISA-issued warrants, but upon permission from the trial judge, the defense attorneys have been allowed to learn about the details which served as the basis for the probable cause which justified the warrants.

At trial, federal prosecutors described Aldawsari as a “lone wolf” terrorist planning to wage a personal “holy war” from Lubbock, Texas. Yet, Assistant U.S. Attorney Matthew Josephy Kacsmaryk acknowledged that in the application for the warrants, prosecutors identified Aldawsari to a FISA court judge as an “agent of a foreign power.”Both classifications may justify a warrant under FISA, but the discrepancy led defense attorney Stephen Cass Weiland to comment, “I’m swinging at curve balls that are invisible.” Aldawsari’s attorneys argue that the prosecution could not claim both portrayal of their client.

A three-judge panel — Senior Circuit Judge Thomas Morrow Reavley of Houston, and circuit judges W. Eugene Davis of Lafayette, Louisiana, and Stephen A. Higginson of New Orleans — will review the warrant applications and determine whether the FISA court and the two judges assigned to the case acted properly. The case was first assigned to U.S. District Court Sam R. Cummings of Lubbock, who ruled that the warrants and the evidence they produced were valid and proper.

Last Thursday’s hearing disclosed that Judge Cummings recused himself from the trial after the defense entered a motion that he do so. The prosecution did not object to the motion. Grounds for the recusal remain classified. Cummings’ replacement, Senior District Judge Donald E. Walter, adopted Cummings’ rulings and the trial proceeded.

During the trial, defense attorney Weiland noted that Aldawsari had not constructed a bomb, in response to prosecutors’ statement that “some preparations, when taken together with intent, may amount to an attempt.” Not only was there a lack of a weapon in Aldawsari’s apartment, but a physical target was not determined, a vital element in several other convictions in similar cases. Weiland claimed that it is unclear whether the jury convicted Aldawsari based on evidence of his mental state, rather than his intention to use the potential weapon.

The court has no deadline to rule on the case.