By David Madden

PHILADELPHIA (CBS) – An appeal is likely to the highest court in the land on behalf of five men, convicted of planning a terrorist attack on Fort Dix. That conviction was upheld by a three judge appeals panel in Philadelphia (see related story).

At issue are wiretaps used under the Foreign Intelligence Surveillance Act, passed in the aftermath of the 9-11 attacks. Four of the five Muslim men, who were convicted more than three years ago, are serving life terms. The fifth, Serdar Tatar, is represented by attorney Richard Sparaco, who argues it’s unconstitutional to use those recorded conversations in a domestic criminal case. The Third Circuit Court of Appeals disagreed.

“We’ve been fighting an uphill battle since this case started and we knew that it was going to be a long haul and that it may take it all the way to the Supreme Court,” their final stop, Sparaco says.

Sparaco expects the justices to take the case, given the precedent a decision would provide on interpreting FISA, but won’t even try to predict how they might rule on it.