The Bush administration's domestic monitoring program, under which the President authorized the monitoring of electronic communications of suspected terrorists without court approval, may have given defense lawyers a loophole to challenge a number of terrorist-related convictions.
The White House domestic spying controversy has taken an unexpected twist. Lawyers for convicted terrorists argue the program is illegal and therefore, so was the evidence used to convict their clients.
Seifullah Chapman is serving a 65-year sentence for conspiring to wage war against the United States. His lawyer, John Zwerling, says his client was convicted on evidence obtained through wiretaps. He wants the case dismissed.
"And the reason for that would be the overreaching of this administration and their abuse of power, and their arrogance and disregard for the Constitution," said Mr. Zwerling.
And Attorney David Smith is seeking a federal review for his client, Lyman Faris, an Ohio truck driver, sentenced to 20 years for conspiring to blow up the Brooklyn Bridge.
"I still believe that this program was illegal," says Mr. Smith, “because the government didn't obtain any authorization from Congress to do it."
Other terrorism convictions that may be appealed on those grounds include the Lackawanna Six, sentenced for supporting al-Qaida, and the Portland Seven, convicted of conspiring to aid the Taleban in Afghanistan.
White House officials dismiss the legal merits of the claims and say defense lawyers are simply looking for ways to get their clients out of jail.
International law expert Ruth Wedgewood says it's a familiar conflict in a time of war. "The present circumstances pose a classic case of conflicts between privacy, our common everyday sense of privacy, and the need to have intelligence and security."
Jonathan Turley, a law professor at George Washington University, says the government should not use questionable evidence to obtain convictions.
"We owe it to ourselves to do it right, to show the world that we are not putting a thumb on the scale of Justice, we're doing it right and the government is going to carry and shoulder its burden."
The Bush administration maintains the wiretaps are legal and says the president acted within the authority given to him by the U.S. Congress after the September 11, 2001 terrorist attacks.
The New York Times says thousands of Americans have had their e-mails and telephone calls monitored by the National Security Agency without approval from a secret court as required by the Foreign Intelligence Surveillance Act.