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 28 Dirty Numbers As bombshells go, this one was right up there. On Friday, December 15, 2005, the New York Times broke one of the biggest stories of the Bush administration. “Months after the Sept. 11 attacks,” the article began, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.”1 Under a presidential order signed in 2002, the article continued , the NSA had monitored the international telephone calls and e-mails of hundreds or even thousands of people inside the United States without warrants. The goal was to track so-called dirty numbers linked to al-Qaida. The effort meant a significant new role for the NSA and a departure from the traditional method of obtaining warrants from the Foreign Intelligence Surveillance Court. “This is really a sea change,” a former senior administration official specializing in national security law told the Times. “It’s almost a mainstay of this country that the N.S.A only does foreign searches.”2 Officials said the program monitored up to five hundred people in the United States at any one time and between five thousand and seven thousand people overseas suspected of terrorist ties. One of the individuals monitored in the United States, the Times reported, was Iyman Faris. Several officials said the program had helped uncover the plot to destroy the Brooklyn Bridge. As soon as the story appeared, attorneys for several defendants convicted of terrorism-related crimes, including Faris, announced their intentions to ask whether the program had been directed at their clients. They included lawyers for Jose Padilla; Ali al-Timimi and Seifullah Chapman, sentenced to long prison terms as part of the socalled Virginia Jihad case; the Lackawanna Six; and the Portland Cell.3  hatred at home For David Smith, the report was an unexpected boost for a motion he planned to file to vacate Faris’s conviction on the basis of the poor legal help Smith believed Fred Sinclair had provided his client. “I want to know in what way NSA’s surveillance program impinged on his case,” Smith said December 27, two days after the program’s existence was revealed. “Did they actually listen to conversations of Mr. Faris, or was it merely that his phone number came up in a surveillance of another target?”4 The report’s timing was good news for Faris for another reason. After the Fourth Circuit had rejected Faris’s attempt to withdraw his guilty plea in 2004, Smith had had a brief patch of good luck when the U.S. Supreme Court, in March 2005, ordered the appeals court to consider whether Faris should be resentenced. It was a glimmer of hope for Faris, who was grinding out his sentence in the federal supermax without much hope of reducing his time behind bars. Jack Vanderstoep and another FBI agent had visited him in early January of 2005, hoping to get his help in identifying suspected terrorists from photos. In typical fashion, Faris proposed a deal: arrange a lie detector test for him, and if he passed, propose a reduction in sentence based on his cooperation. The deal fell through after Faris insisted on taking the test before looking at the photos, an arrangement Vanderstoep rejected.5 Smith based his argument on a Supreme Court decision earlier in the year that had called into question federal sentencing procedures. On December 29, however, as the repercussions of the warrantless wiretap news still reverberated, the Fourth Circuit reaffirmed Faris’s conviction and sentence, determining that he was not affected by the ruling on sentencing. As Faris’s legal options dwindled, the wiretap allegations were prime fodder for an additional challenge. On February 3, 2006, Smith asked Brinkema in a thirty-eight-page filing to overturn Faris’s conviction on the basis of ineffective assistance of counsel. Smith laid out two basic arguments. Had Sinclair properly investigated the facts of the case and talked to Faris about them, there was a good chance Faris never would have pleaded guilty to begin with. Once the deal was cut, had Sinclair done a better job investigating the law regarding withdrawal of a plea, there was a good chance Brinkema would have granted Faris’s decision to start over. Many of the arguments were similar to previous allegations Smith had made about Sinclair: he pressured Faris to...

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