Challenge to FISA Wiretaps

Via John Stephenson at Stop the ACLU.

A fellow named Iyman Faris was convicted, and admitted his guilt, but is now challenging his conviction based on a) ineffective assistance of counsel, and b) information procured through illegal wiretaps.

"Iyman Faris’ challenge is among the first to seek evidence of warrantless electronic eavesdropping by the National Security Agency, a practice that began after the terrorist attacks of Sept. 11, 2001. Government officials have reportedly credited the practice with uncovering Faris’ terrorist plot and several others.

"A motion filed by Faris’ attorney David Smith in U.S. District Court in Alexandria, Va., argues that investigators improperly obtained evidence against Faris and that his trial lawyer was ineffective.

"Given the likelihood that Faris’ phone conversations or e-mails had been electronically monitored, Faris’ trial lawyer, Frederick Sinclair, should have asked for evidence of such surveillance, Smith said in the motion."

Before I continue, let me add two caveats: I don't practice criminal law, so everything I have to say about it is based on law school and bar review (although, to my credit, I'm way freakin' smart). Second, I'm no expert on FISA (but again, I'm so scary-smart it doesn't make much difference).

So a challenge for ineffective assistance of counsel has two elements: first, that your lawyer was ineffective. That doesn't just mean he lost your case, it means he has to have really screwed up. The kicker is the second element. The Court has to find that but for that ineffective assistance, you would have gone free. In other words, if I can prove that my lawyer was utterly incompetent in every way imaginable, but I was caught at the scene covered in the victim's blood, holding the smoking pistol, and thirty eye-witnesses saw me do it, my ineffective assistance claim won't work.

In other words, if Mr. Faris admitted guilt, then it's wildly improbable that his legal challenge will succeed, regardless of the scope or legality of FISA. I admit I don't know the details of Faris' case, so I can't evaluate the weight of evidence against him, but based on my reading of Stop the ACLU, it looks like Faris will, in any case, remain a guest of the federal corrections facility he calls home.

There is another angle to this case. In a perfect world, all judges decide only the necessary elements of a given case. That is, if it's apparent from his confession that Faris is guilty, and therefore his ineffective assistance challenge is meritless, a judge should thereafter decline to review any FISA challenge. It's a moot point, and judges don't decide moot points. In a perfect world, anyway. But we all know that's not how our courts work in real life, and it's entirely possible that some judge will decide to ignore the rules in favor of getting his or her name on a landmark case. Wouldn't be too surprising.