Wiretap Issue Leads Judge to Warn of Retrial in Terror Case

By ERIC LICHTBLAU
New York Times

WASHINGTON, Nov. 20 — A federal judge warned Tuesday that if the government did not allow lawyers to review classified material on possible wiretapping of an Islamic scholar convicted of inciting terrorism, she might order a new trial for him.

The unexpected development is the latest legal complication involving the National Security Agency’s wiretapping program, which has produced challenges from criminal defendants as well as civil lawsuits against the government and phone carriers.

Lawyers for Ali al-Timimi, an Islamic scholar in Northern Virginia sentenced to life in prison in 2005 for inciting his followers to commit acts of terrorism, maintain that he may have been illegally wiretapped by the agency as part of its program of eavesdropping without warrants that was approved by President Bush soon after the Sept. 11 attacks.

In April 2006, four months after the N.S.A. program was publicly disclosed, an appellate court directed the trial judge in Mr. Timimi’s case to reconsider it in light of his lawyers’ accusations.

But the issue has been bogged down in court for 18 months, with intelligence officials making a series of classified appearances before the judge, Leonie M. Brinkema, to explain the government’s position. Lawyers for Mr. Timimi and even the trial prosecutors have not been allowed to hear the closed-door discussions.

Jonathan Turley, the lead appellate lawyer for Mr. Timimi, said the defense’s lack of access to crucial evidence had made it hard to litigate the case. “We’re shadowboxing in the courtroom with unnamed officials at unnamed agencies,” Mr. Turley said in a telephone interview.

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