Abu Khalid Abdul-Latif, 34, was arrested June 22, 2011, along with an acquaintance from Los Angeles, when authorities said they arrived at a Seattle warehouse garage to pick up machine guns and grenades to use in the attack. In conversations recorded by the FBI with the help of a confidential informant, Abdul-Latif and his co-defendant, Walli Mujahidh, discussed how they wanted to gun down people in the Military Entrance Processing Station as revenge for atrocities by U.S. soldiers in Afghanistan, prosecutors said.
Weeks before the arrests -- apparently on June 9, 2011 -- investigators obtained a secret warrant under the Foreign Intelligence Surveillance Act, defense attorneys said in recent court filings. Investigators used wiretaps to intercept about 70 of Abdul-Latif's phone calls, as well as four years of emails -- more than 1,800 pages -- and YouTube messages.
The motion to suppress the evidence, filed late last month, was based on information turned over to defense lawyers Jennifer Wellman, Erik Levin and Vicki Lai by federal prosecutors, the lawyers wrote.
"Discovery confirms that law enforcement was aware that Mr. Abdul-Latif was not 'an agent of a foreign power' and therefore could not be targeted by a FISA surveillance warrant," they wrote.
The U.S. attorney's office declined to comment. Its response to the motion is not due until late July.
Even if U.S. District Judge James Robart agreed to toss the FISA-related evidence, it isn't clear how much of a dent that might put in the prosecutors' case, much of which is based on Abdul-Latif's own words and actions in recorded meetings with the informant.
FISA allows prosecutors to apply to a special court to obtain warrants targeting people when the government has probable cause to believe they are acting on behalf of a foreign power, including terror groups. The law states that "no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment."
The warrant obtained in Abdul-Latif's case was one of 1,745 FISA warrants the government sought last year.
Applications for FISA warrants are secret, but the defense lawyers want the one used against Abdul-Latif turned over because they believe it will show the law was used improperly.
In this case, they wrote, "The primary purpose of the FISA surveillance was to gather evidence of domestic criminal activity and the use of FISA violated its central precept -- that a 'significant purpose' of the surveillance be to capture foreign intelligence information."
The defense filings also show that Abdul-Latif was being monitored by the FBI long before an acquaintance recruited to take part in the plot reported it to investigators. In late January 2011, an agent ran a records search on Abdul-Latif and his wife, and by the following month, agents were watching Abdul-Latif while he worked as a janitor and while he attended a mosque with his wife and son.
The FBI monitoring occurred just a few months after Abdul-Latif began posting YouTube videos in which he expressed support for Islamist fighters.
Federal authorities and Seattle police have credited the informant with bringing the plot to light. The informant, a repeat felon and convicted sex offender, was paid $90,400 for his cooperation.
The defense attorneys said their client will argue that he was entrapped by investigators -- a difficult argument to win, especially in federal court, where prosecutors can deny it by showing a defendant was predisposed to commit the crime. Abdul-Latif may also present a mental health defense at his trial, set for October.
Abdul-Latif, an ex-con with a robbery and assault record, could face a life sentence if convicted of conspiracy to murder federal officers, conspiracy to use weapons of mass destruction and other charges. His co-defendant, Mujahidh, faces 27 to 32 years after pleading guilty to three charges: conspiracy to kill officers of the United States, conspiracy to use weapons of mass destruction, and unlawful possession of a firearm.
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