In one case that began to entangle our counter terrorism efforts within criminal court battles (thanks NY Times) the presiding judge has determined the defendant does not have the right to know whether he was under surveillance as he worked as the eyes and ears here in the US for our enemy Saddam Hussein.

U.S. District Judge Rebecca R. Pallmeyer refused Friday to order the government to say whether it has conducted surveillance without a warrant on the telephone of Sami Latchin, 59, of suburban Des Plaines.

“In addition, without suggesting whether or not the defendant was the subject of electronic surveillance under the presidentially authorized Terrorist Surveillance Program, the court certifies that no such material, without suggesting whether or not it exists, was used in this criminal prosecution,” she said in an order issued Friday and made public Monday.

Latchin is accused of keeping track of the deposed dictator’s American-based critics on behalf of the Iraqi intelligence service under the Saddam Hussein regime. He is not charged with espionage, which involves the theft of U.S. defense secrets.

The reason the defendant has no need for the information is because none of it is being used in the case against him. This is an interesting twist, because the NSA could have tipped off the FBI of the defendents activities while monitoring Hussein’s communications (perfectly within the NSA jurisdiction). That lead could have resulted in the FBI going to the FIS Court and receiving a warrant for extended surveillance and search of records. So while the NSA lead is not part of the case in court, it could have easily played a role in bringing the case through the NSA tip. I think it is fair to say this is the case given these events:

Prosecutors responded that an attorney from the Justice Department in Washington would contact Pallmeyer privately in chambers with defense attorneys excluded to discuss the question posed by Latchin’s lawyers.

Pallmeyer said Monday that someone from the Justice Department had delivered documents to her in mid-June and again on Friday. She said no one had spoken with her at such times and that the “courier” had merely sat outside her office while she read the materials.

The documents were then taken away, she said.

The fact there are classified records of this type strongly indicate there was a FIS Court warrant. Whether that was initiated by an NSA lead is neither here nor there since evidence gathered for court is under warrant. So the first case seems to go towards national defense and not towards rampant liberal conspiracy theories. That’s one for the good guys protecting this nation from attack.