SEATTLE -- Lawyers for a U.S. man accused of plotting to attack a military office in Seattle want some of the evidence against him thrown out, saying the government should not have obtained a secret intelligence warrant because there was no indication he was involved in international terrorism.
Abu Khalid Abdul-Latif, 34, was arrested June 22, 2011, when authorities said he and an acquaintance arrived at a warehouse to pick up machine guns and grenades to use in the attack. In conversations recorded by the FBI with the help of a confidential informant, Abdul-Latif and his co-defendant, Walli Mujahidh, discussed how they wanted to shoot people in the Military Entrance Processing Station as revenge for atrocities by U.S. soldiers in Afghanistan, prosecutors said.
Abdul-Latif could face a life sentence if convicted of conspiracy to murder federal officers, conspiracy to use weapons of mass destruction and other charges. His trial is set for October. Mujahidh faces 27 to 32 years after pleading guilty to conspiracy to kill officers of the United States, conspiracy to use weapons of mass destruction, and unlawful possession of a firearm.
Weeks before the arrests -- apparently on June 9, 2011 -- investigators obtained a secret warrant under the Foreign Intelligence Surveillance Act, defense attorneys said in recent court filings. Investigators used wiretaps to intercept about 70 of Abdul-Latif's phone calls, as well as four years of emails and YouTube messages.
"Law enforcement was aware that Mr. Abdul-Latif was not `an agent of a foreign power' and therefore could not be targeted by a FISA surveillance warrant," wrote defense lawyers Jennifer Wellman, Erik Levin and Vicki Lai.
FISA allows prosecutors to apply to a special court to obtain warrants targeting people when the government has probable cause to believe they are acting on behalf of a foreign power, including terror groups. The law states that "no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment."
The U.S. attorney's office declined to comment. Its response to the motion is not due until late July.
Even if the U.S. District Court judge agrees to toss the FISA-related evidence, it isn't clear how much that might hurt the prosecutors' case. Much of it is based on Abdul-Latif's words and actions in recorded meetings with the informant.
The warrant obtained in Abdul-Latif's case was one of 1,745 FISA warrants the government sought last year.
Applications for FISA warrants are secret, but the defense lawyers want the one used against Abdul-Latif turned over because they believe it will show the law was used improperly.
The defense filings also show that Abdul-Latif was being monitored by the FBI long before an acquaintance recruited to take part in the plot reported it to investigators. In late January 2011, an agent ran a records search on Abdul-Latif and his wife, and by the following month, agents were watching Abdul-Latif while he worked as a janitor and while he attended a mosque with his wife and son.
The FBI monitoring occurred a few months after Abdul-Latif began posting YouTube videos in which he expressed support for Islamist fighters.
The defense attorneys said their client will argue that he was entrapped by investigators -- a difficult argument to win, especially in federal court, where prosecutors can deny it by showing a defendant was predisposed to commit the crime. Abdul-Latif may also present a mental health defense at his trial.