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Judge: Secret evidence OK in Iraqi in terror case

FILE - In this undated photo provided by the U.S. Marshals Service, Mohanad Shareef Hammadi, 23, an Iraqi living as a refugee in Bowling Green, Ky., is shown. U.S. District Judge Thomas B. Russell set a July 30 trial date during a conference call with prosecutors and an attorney for 24-year-old Mohanad Shareef Hammadi, who faces charges of attempting to provide material support to terrorists and terrorist organizations and conspiracy to transfer surface-to-air missile launcher systems. (AP Photo/U.S. Marshals Service via The Courier-Journal)

FILE - In this undated file photo provided by the U.S. Marshals Service, Waad Ramadan Alwan, 30, an Iraqi living as a refugee in Bowling Green, Ky., is shown. Waad Ramadan Alwan, pleaded guilty in December , 2011 on charges of attempting to provide material support to terrorists and terrorist organizations and conspiracy to transfer surface-to-air missile launcher systems. His sentencing is set for April 3. (AP Photo/U.S. Marshals Service via The Courier-Journal)

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By BRETT BARROUQUERE, The Associated Press Updated 3:31 PM Wednesday, February 8, 2012

LOUISVILLE, Ky. — Secret documents suggest an Iraqi man facing charges of trying to funnel weapons and cash to al-Qaida operatives in his home country was "an agent of a foreign power," and his lawyers may not see or suppress those documents, a judge ruled Wednesday.

U.S. District Judge Thomas B. Russell set a July 30 trial date during a conference call with prosecutors and an attorney for 24-year-old Mohanad Shareef Hammadi, who faces charges of attempting to provide material support to terrorists and terrorist organizations and conspiracy to transfer surface-to-air missile launcher systems.

Russell ruled that prosecutors acted properly in gathering physical evidence and conducting electronic surveillance of Hammadi under the Foreign Intelligence Surveillance Act. Russell also ruled that Hammadi's attorneys may not have access to the warrants or supporting materials.

After reviewing documents submitted by prosecutors, Russell concluded that there's probable cause to believe Hammadi was "an agent of a foreign power."

"Thus, Hammadi's arguments based on the Government's failure to demonstrate probable cause are without merit," Russell wrote in a 19-page ruling.

Hammadi's co-defendant, 30-year-old Waad Ramadan Alwan, pleaded guilty in December to the same charges that Hammadi faces, as well as conspiracy to kill U.S. nationals abroad, conspiracy to use a weapon of mass destruction against U.S. nationals abroad, and distributing information on how to make and use improvised explosive devices. His sentencing is set for April 3.

The order setting a trial date comes a month after Hammadi's attorney, James Earhart of Louisville, told Russell that he need time to explore a possible resolution in the case. Earhart told The Associated Press on Wednesday that they would continue to explore a plea agreement.

"If we can reach one, we will," Earhart said. "If not, we'll go to trial."

The judge ruled in September that Alwan and Hammadi could be tried in civilian court, a matter that has escalated into a hot political issue.

Senate Minority Leader Mitch McConnell pushed to have Alwan and Hammadi tried at the military-run prison at Guantanamo Bay. U.S. Attorney General Eric Holder has said terrorism-related trials can be successfully handled by civilian courts.

Bowling Green Mayor Bruce Wilkerson said on Wednesday said the city has "no opinion" on holding the trial in south-central Kentucky and expects Hammadi to receive a "fair and just trial."

"We would also expect the federal government to provide the necessary resources to protect the citizens of Bowling Green during the trial," Wilkerson said.

Earhart sought to get access to and exclude the evidence obtained under the Foreign Intelligence Surveillance Act. The judge found that the warrants were properly issued. They remain under seal.

Earhart said he hadn't seen the ruling nor any of the warrants as of Wednesday afternoon and couldn't comment on the judge's decision.

Keeping such evidence hidden from public view — and even from the defendants — is routine, said Frank Cilluffo, director of the Homeland Security Policy Institute at George Washington University and a former special assistant for homeland security for President George W. Bush.

"It's a means to protect classified information," he said.

Charles Rose, a Stetson University School of Law professor and former U.S. Army intelligence officer, said evidence obtained under FISA doesn't often crop up in civilian cases.

"That's a big change," Rose said. "It really hasn't been challenged."

Alwan and Hammadi entered the United States through a refugee program in 2009. Investigators matched a thumbprint from an unexploded improvised explosive device in Iraq to Alwan as part of the probe.

Both have remained in federal custody since their arrests.

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Associated Press reporter Brett Barrouquere is on Twitter: http://twitter.com/BBarrouquereAP

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February 08, 2012 08:28 PM EST

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