“At least we’d get a lot of smoking breaks during the trial,” Shannon said. “His hands start shaking after an hour.”
70
Alex studied the Patriot Act and associated case law for a solid week after returning from Beirut. Shannon knew the issues better and probably should have argued the motion, but Alex felt like he had no choice. Nara had promised their captors in Beirut that Alex would launch a full-scale assault on the Patriot Act. It wouldn’t do for him to sit back silently and let his law partner take the lead.
Of course, he used a different reason to convince Shannon. “You’re going to be lead counsel on Ghaniyah’s case,” he told her. “And this will be a very unpopular motion. I don’t want Ghaniyah’s jury biased against you.”
Shannon looked at him as if he had lost his mind. “What’s the real reason?” she asked.
Alex made a face and resorted to his second tier of lies. “Because we’re going to lose, and I’m a man. Khalid will accept it better if I’m the one who argues it.”
That excuse was even more lame. They both knew that Khalid respected Shannon.
“Not to mention the fact that the hearing will draw nationwide media coverage,” Shannon said.
Alex smiled sheepishly. If that’s what she wanted to believe… fine.
“Busted,” Alex said.***
A soggy nor’easter could not keep the crowd away from the motion to suppress hearing in Commonwealth v. Mobassar. The small courtroom was crammed with reporters, lawyers, and onlookers trying to drip-dry from their dash through the rain. The tight quarters and abundance of bodies generated a musty smell that reminded Alex more of a locker room than a court of law. The pool camera for the live video feed was set up in the jury box-a good vantage point to film both the lawyers and the judge.
Alex took off his trench coat and bunched it up next to the front rail. He took a seat beside Khalid at the counsel table.
“You doing okay?” Alex asked, trying to ignore the lens of the TV camera.
“I’m fine. You?”
“A little nervous,” Alex admitted.
A few minutes after Rosenthal gaveled the proceedings to order, Alex’s nervousness disappeared. He believed in both his client and his argument. So what if everybody in the courtroom wanted him to lose?
“This is not the first time the Patriot Act has been used to target a leading moderate Muslim,” Alex argued. “Tariq Ramadan was named by Time magazine as one of the top one hundred innovators of the twenty-first century. Professor Ramadan taught at Notre Dame and used his position of prominence to denounce violence in the name of Islam. His visa was revoked under Section 411 of the Patriot Act.”
“Is the government trying to revoke Mr. Mobassar’s visa?” Judge Rosenthal asked.
“No. But my purpose in mentioning it-”
“I didn’t think so,” Rosenthal said, cutting Alex off. “So let’s stick to the issues in this case.”
“The government is trying to use wiretapping and electronic surveillance evidence against Mr. Mobassar,” Alex countered. “And the way that evidence was gathered violates the Fourth Amendment to the U.S. Constitution.”
Alex launched into a detailed explanation of the Foreign Intelligence Surveillance Act, something that Alex referred to as “FISA,” an act that was later amended by the Patriot Act. FISA established a special court comprised of eleven district court judges with authority to grant or deny applications by the CIA and other federal agencies for electronic surveillance when “a significant purpose” of the request was to obtain foreign intelligence information. According to Alex, this violated the Fourth Amendment to the U.S. Constitution, which requires that the government establish “probable cause” that a crime had been committed before obtaining the authority for wiretaps or searches.
He quoted language from a Supreme Court case that dealt with a different set of circumstances but articulated a principle that applied here: “‘We cannot forgive the requirements of the Fourth Amendment in the name of law enforcement… It is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one’s home or office are invaded. Few threats to liberty exist which are greater than that posed by eavesdropping devices.’”
Under normal circumstances, Alex explained, the government would have to provide a magistrate with facts supporting probable cause. But under FISA and the Patriot Act, there was no need to show a crime had been or was being committed, so long as the surveillance involved foreign intelligence.
More than fifty thousand surveillance authorizations a year were issued pursuant to the Patriot Act. The government eavesdropped on hundreds of thousands of conversations and intercepted millions of e-mails just to establish patterns of communication aimed at smoking out illegal international activity. The Act even authorized “sneak and peek” searches where agents could break into the homes of persons under surveillance and secretly search through their stuff without ever telling them.
“When the federal government first started the surveillance of Mr. Mobassar’s phone calls and text messages, there had been no honor killings. Their only justification for doing so was the suspicion that the Islamic Learning Center was sending funds to organizations associated with Hezbollah to help in the rebuilding of Beirut following the 2006 war. The government does not even claim it had probable cause to believe a crime had been committed.”
Alex paused for a moment and placed his legal pad on the table. He looked Judge Rosenthal squarely in the eye. “I know a ruling in my favor won’t win any popularity contests, Judge, but the Fourth Amendment has served this nation well for 220 years as the last line of defense against the type of mob mentality we see in this case. I’m asking Your Honor to declare the Patriot Act unconstitutional and to suppress the evidence gleaned from the text messages allegedly sent by my client.”
“Thank you, Mr. Madison,” Judge Rosenthal said. He made a few notes because that’s what judges were supposed to do when they wanted to look fair. Alex knew he had done his best, but that feeling in the pit of his stomach was back. He was pretty certain that his best hadn’t been good enough.
Rosenthal told Taj Deegan he was ready to hear from her.
“The Ninth Circuit Court of Appeals is probably the most liberal court in the nation,” Taj began, “and even that court was not willing to do what Mr. Madison just requested. The Patriot Act has resulted in over four hundred convictions arising out of terrorism investigations since September 11, 2001.
“The government has always had the authority to gather foreign intelligence information without meeting the probable-cause requirements of the Fourth Amendment. Our Constitution is a wonderful thing. But it should not be used to strip the government of its ability to protect the United States from foreign enemies, including terrorists.
“Mr. Madison is correct in his assertion that the original basis for the wiretap on his client’s phone was the mosque’s suspected support of Hezbollah. I will not apologize for a government that conducts surveillance on those suspected of supporting terrorist organizations. Reduced to its simplest form, Mr. Madison’s argument is this: You tapped my phone because you thought I was in league with terrorist organizations. As a result, you discovered that I ordered honor killings of Muslim women. Therefore, you should throw out the evidence.”
When phrased that way, it sounded ludicrous even to Alex.
“In other words, suspected terrorists can get away with murder so long as their crimes are not technically terrorism,” Taj Deegan continued. “I’m pretty sure that’s not what our founding fathers had in mind when they passed the Bill of Rights.”
The prosecutor reminded Rosenthal about the war on terror and the numerous court decisions upholding various provisions of the Patriot Act. She must have said the word terrorism fifteen times, justice ten times, and the phrase law and order at least five. After she finished by asking Judge Rosenthal to uphold every single provision of the Patriot Act, Alex half expected “Yankee Doodle” to start playing.