Earlier this month Federal Judge Sam Cummings ruled that Lubbock terror suspect Khalid Aldawsari should be treated like a spy. That means he won't have certain rights to examine the evidence against him under the Foreign Intelligence Surveillance Act.
So KCBD did some checking to see why this is the case. We found out that under a FISA warrant, the government was allowed to search Aldawsari's apartment, wire tap his phone, email and blog all in secrecy. In a normal search, prosecutors have to disclose everything they found, but under FISA that's not the case.
The Cato Institute, a libertarian think tank in Washington D.C., is concerned by the decision to use classified documents that the defense will not be able to see.
Julian Sanchez, a fellow researcher with the institute, has been following the case since Aldawsari was arrested one year ago.
He says Aldawsari is depicted as a "Lone Wolf," or someone who acted alone. There is a so-called Lone Wolf provision in FISA, but the Department of Justice told Congress that is not being used. Assuming that's the case, the court system can only use these top-secret documents in trial if Aldawsari was proved to be a foreign agent.
Sanchez says there are two possibilities that put the suspect terrorist under that category. He says one reason could be Aldawsari was working with a terrorist group.
The second? "Aldawsari was here under the sponsorship of a Saudi Petroleum Chemical firm called SABIC which is run by the Saudi Royal family and majority-owned by the Saudi government, which makes it a foreign power under FISA's definition," said Sanchez.
Sanchez says there are around 1,000 FISA wire taps every year and they are rarely used in court. He says it's very unlikely Aldawsari was spying on foreign soil.
"It really is using a bazooka against a mosquito to use those tools to deal with 19-year-old who is trying to mix chemicals in his basement," said Sanchez.
Ultimately, Sanchez says, this top-secret information should be exposed to the public and the defense before the trial.
"As the volume of secret surveillance expands, the chance that abuses are going to be caught becomes lower. I think that is a real cause for concern," said Sanchez.
Since there is a gag order on this case, we were unable to get a comment from the prosecutors side on why FIS should be used.
The defense still has time to appeal the judge's decision.
The trial is set for April 30th.
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