A civilian attorney representing accused Fort Hood shooter Maj. Nidal Hasan filed an appeal Friday challenging the government’s intention to use evidence obtained through secret surveillance against Hasan.

The evidence is likely communications between Hasan and U.S.-born al-Qaida operative Anwar al-Awlaki obtained by government agents as they monitored al-Awlaki’s communications.

Those communications, a series of emails made between December 2008 and June 2009, “tripped the wire” during an FBI investigation of al-Awlaki before his death. The FBI never formally investigated Hasan prior to the Nov. 5, 2009, shooting on post; however, it maintained a record of those communications.

After the shooting, the discovery of Hasan’s emails with al-Awlaki led to an investigation of the FBI dubbed the Webster Report. It concluded that several agents erred in their failure to recognize Hasan’s alleged movement toward Islamic extremism.

The FBI made many of those emails public after Congress pressured the agency to release the report. The communications could be used against Hasan as evidence he acted as a “home-grown terrorist” during his upcoming court-martial.

Government prosecutors have full access to information obtained through the Foreign Intelligence Surveillance Act, but Hasan’s attorneys have been forbidden from viewing the materials.

His civilian attorney, Columbus, Ohio, lawyer Eric Allen, argues that a lack of access to those documents violates Hasan’s due process. Hasan, 42, faces the death penalty for 13 counts of premeditated murder and 32 counts of attempted premeditated murder.

His court-martial was placed on hold by a separate appeals process currently being litigated in the Court of Appeals for the Armed Forces.

The new appeal, filed with the Fifth Circuit, was denied by the U.S. District Court in Waco on Aug. 14 after a judge viewed the FISA evidence independently.

Hasan’s attorney argues the military defense should have access to any and everything obtained through secret government surveillance. At least one of Hasan’s defense counsel has top secret clearance and could be ordered to not reveal the content of the FISA evidence.

Contact Philip Jankowski at philipj@kdhnews.com or (254) 501-7553

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