Former sailor cites Patriot Act ruling in trying to keep phone calls out of terror trial

By: JOHN CHRISTOFFERSEN - Associated Press

NEW HAVEN, Conn. -- Federal prosecutors on Wednesday played phone calls from a former Navy sailor accused of supporting terrorism by disclosing the location of ships, but the ex-sailor says a recent ruling against the Patriot Act made the calls illegal to intercept.

The phone calls were played in a court hearing to decide whether to admit the evidence in the case against Hassan Abu-Jihaad. Lawyers for Abu-Jihaad have argued that the calls and other evidence, such as e-mail searches, should be thrown out after a judge's ruling in September that struck down portions of the Patriot Act.

In one phone call between the sailor and some friends, Abu-Jihaad is heard making what prosecutors said is a coded reference to Osama bin Laden, using the phrase "under the black leaves."

He is also heard talking about the different techniques of American and Islamic snipers.

Abu-Jihaad, 31, of Phoenix, pleaded not guilty in April to charges he provided material support to terrorists with intent to kill U.S. citizens and disclosed classified information relating to the national defense. He has been held without bail since his arrest in March in Phoenix.

His lawyers are citing a ruling by a federal judge in Oregon that struck down key portions of the USA Patriot Act as unconstitutional. U.S. District Judge Ann Aiken ruled the act cannot be used to authorize secret searches and wiretapping to gather criminal evidence -- instead of intelligence gathering -- without violating the Fourth Amendment ban on unreasonable searches and seizures.

The Bush Administration is appealing the ruling.

Abu-Jihaad is charged in the same case as Babar Ahmad, a British computer specialist arrested in 2004 and accused of running Web sites to raise money for terrorism. Ahmad is to be extradited to the U.S.

During a search of Ahmad's computers, investigators discovered files containing classified information about the positions of U.S. Navy ships and discussing their susceptibility to attack, officials said.

Abu-Jihaad exchanged e-mails with Ahmad while on active duty on the USS Benfold, a guided-missile destroyer, in 2000 and 2001, according to an FBI affidavit. In those e-mails, Abu-Jihaad discussed naval briefings and praised bin Laden and those who attacked the USS Cole in 2000, according to the affidavit.

Abu-Jihaad allegedly discussed attacking military personnel and recruiting stations with his former roommate, Derrick Shareef, 22, of Genoa, Ill., who was accused of planning to use hand grenades to attack holiday shoppers at a mall in a separate case.

Abu-Jihaad, who received an honorable discharge from the Navy in 2002, faces up to 25 years in prison if convicted.