A federal appeals court on Monday upheld the conviction of Hassan Abu-Jihaad for providing material support to terrorists and leaking information about the deployment of the USS Constellation battle group to jihadists. Abu-Jihaad, a former signalman on the USS Benfold, was sentenced last year to 10 years in prison for leaking classified information about the movement of navy ships to Azzam Publications, a Britain-based publishing house that supported the Taliban and other radical groups.
In its opinion, the United States Court of Appeals for the Second Circuit noted that British authorities searched various Azzam-affiliated e-mail accounts and discovered that Abu-Jihaad had corresponded repeatedly with Azzam between August 21, 2000 and September 3, 2001. During the course of those emails, Abu-Jihaad "revealed his identity and status as an active duty member of the Navy and his personal support for jihad, even when directed against the United States," the court noted.
In a July 2001 e-mail, Abu-Jihaad praised what he called the "martyrdom operation against the uss cole [sic]" and the damage that attack did to the United States. Seventeen American sailors were killed in the October 12, 2000 suicide attack on USS Cole as it was refueling in Aden, Yemen. Abu-Jihaad wrote that the attack had prompted new security briefings and had increased anxiety among American sailors.
The court observed that in other communications with Azzam, Abu-Jihaad warned his correspondents that U.S. submarines might carry out strikes against Osama bin Laden and the Taliban; provided detailed information about the activities of U.S. Naval forces and identified the "vulnerabilities" of ships inside a U.S. battle group. The opinion also explains that in 2006, Abu-Jihaad, speaking in code, admitted his crimes in a wiretapped telephone conversation with a federal informant.
Much of the ruling focused on the government's use of wiretaps obtained through the Foreign Intelligence Surveillance Act (FISA). The law's primary purpose is intelligence gathering, but information obtained through FISA warrants increasingly has been used in terror-related prosecutions since 2002. The court dismissed defense arguments that the Act is unconstitutional or that use of information gathered through the intercepts violated Abu-Jihaad's rights. FISA has been challenged repeatedly throughout the past decade. The only district court ruling that such use is unconstitutional has been vacated, the 2nd Circuit decision noted. "Meanwhile, all other courts that have considered the issue, both before and after enactment of the PATRIOT Act, have rejected constitutional challenges to FISA."