Keep Pulling The String

Apparently the fourth circuit court of appeals, not known as a bastion of liberal thought, doesn't like this whole unitary executive theory (the fourth circuit is the court that wouldn't just let DOJ hold detainee Jose Padilla four years without due process then dismiss the case to transfer him to another jurisdiction). Yesterday the court ordered a trial judge to review whether a recent conviction may have been tainted by information obtained from secret and warrantless wiretaps, as reported in the NYT.

WASHINGTON, April 25 — An appellate court on Tuesday directed a lower court to consider statements by a Muslim cleric in northern Virginia that he had been illegally wiretapped under the warrantless eavesdropping program that President Bush authorized.
The ruling opened the door to what could be the first ruling by a federal court on whether information obtained under the program, operated by the National Security Agency, had been improperly used in a criminal prosecution.

The cleric, Ali al-Timimi, who was sentenced to life in prison last year for inciting his Muslim followers to violence, is challenging his conviction because he says he suspects that the government failed to disclosed illegal wiretaps of his e-mail messages and telephone conversations.

In an order released on Tuesday, the United States Court of Appeals for the Fourth Circuit did not rule on the merits of Mr. Timimi's assertions about the N.S.A. program, but sent the case back to the federal trial court in Alexandria, Va., for a rehearing.

The appellate court gave the trial judge in the case, Leonie M. Brinkema, broad latitude, saying the trial court could "order whatever relief or changes in the case, if any, that it considers appropriate."
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But a lawyer for Mr. Timimi, Jonathan Turley, said the appellate order was a significant and "extraordinary step" because appellate courts did not generally order a rehearing in a criminal case while an appeal was pending.

"This is very good news for us, and we're eager to go back to Judge Brinkema to explore these troubling issues," Mr. Turley said in an interview.

The Justice Department has declined to say publicly whether National Security Agency wiretaps were used against Mr. Timimi or any other terrorism defendants. But Mr. Timimi's lawyers maintain that circumstantial evidence, including incriminating conversations between him and other suspects that were monitored after the Sept. 11, 2001, attacks, indicate that the eavesdropping program was used against him.

Wanna take bets? I think this is where it all starts to unravel. Federal judges with lifetime tenure may be just the kind of relief we need from those hearty souls in the senate.