© St. Petersburg Times, published March 2, 2003
Attorney General John Ashcroft had nothing but praise for the USA Patriot Act following the indictment of University of South Florida professor Sami Al-Arian on terrorism charges. The prosecution, he suggested, couldn't have happened without the new law.
But it's a feint. Ashcroft is deliberately misleading the public in what appears to be an attempt to pre-empt blame. The real question is why it took the Justice Department nearly a decade to shut down the operational headquarters of a Middle Eastern terror campaign operating on U.S. soil.
After years of teasing messages, the government has finally offered up something beyond vague statements and rumors regarding Al-Arian's ties to terrorism. On Feb. 20, the Justice Department announced a 50-count indictment against him and seven others, alleging Al-Arian was far more than the earnest, outspoken supporter of the Palestinian cause he so often claimed. Instead he is accused of being a central figure in Palestinian Islamic Jihad, a group responsible for suicide bombings killing more than 100 people in Israel and the occupied territories, including two Americans.
The indictment shows that the government was tracking Al-Arian's communications as long ago as 1994. The reason prosecutors did not press charges until now, Ashcroft told reporters, is that cooperation between investigators and prosecutors within Justice had been limited. These limits, he said, were removed by the Patriot Act, which granted the executive branch the wide surveillance and detention powers Ashcroft sought after the Sept. 11 attacks.
"A very substantial and important aspect of this case is the facilitation that comes between the intelligence effort and the law enforcement effort, which previously had been forbidden," Ashcroft said.
This is not accurate and Ashcroft knows it. According to James Dempsey, executive director of the Center for Democracy and Technology, information obtained through intelligence-gathering warrants that are granted by the special Foreign Intelligence Surveillance Act court have been successfully introduced in nearly 100 criminal prosecutions.
What the USA Patriot Act does do is allow the government to apply for intelligence warrants, which are easier to obtain, even when the primary purpose of the investigation is criminal prosecution. But the Justice Department has always been allowed to use evidence of crime it obtained through FISA wiretaps; prosecution just couldn't be the purpose of the search.
By glossing over this nuance and suggesting it was the Patriot Act that saved the day, Ashcroft accomplishes the dual goals of cementing the value of the new law in the public's mind and deflecting criticism of the Justice Department for waiting years before closing down the Islamic Jihad operation.
Justice Department spokesman Mark Corallo acknowledges that "small pieces of FISA information had been used in some criminal proceedings in the past," but says it took the Patriot Act and a court ruling interpreting it "to clarify how we could use information within the law."
Okay, even taking at face value Ashcroft's contention that there were legal barriers to using evidence obtained from counterintelligence wiretaps in a criminal prosecution, why wasn't the investigation moved to a criminal division as soon as Al-Arian's activities became clear? Wiretapping could have continued under a conventional warrant, and a prosecution could have taken place far sooner.
For the past nine years the FBI had been capturing Al-Arian's conversations indicating he was raising and managing Islamic Jihad's money, developing policy for the group, directing funds to the families of suicide bombers and holding the wills of suicide bombers. The indictment connects Al-Arian in racketeering and murder conspiracy charges to killings and suicide bombings in Israel and its territories as far back as 1992, and all the way up to the fall of 2002.
Would we have twiddled our thumbs so long if it had been American rather than Israeli civilians being targeted?
The investigation could have moved into the criminal courts at any time -- particularly after 1997 when the State Department formally named the Islamic Jihad a terror organization, making any provision of material support a crime. That didn't happen because, as Ashcroft knows, the real problem with the investigation wasn't legal barriers on information-sharing but failings within the FBI.
As reported by the New York Times, according to former federal officials and experts on the effort to snag Islamic Jihad leaders in the United States, "the investigation suffered from a lack of resources, such as insufficient Arabic translators, and fierce bureaucratic turf battles between the FBI and the Customs Service over control of the investigation." The paper quoted a former official who worked on the case saying, "we had so many obstacles that were put in our way."
The excessive delay in Al-Arian's prosecution was due to federal agency infighting, official disinterest, and a lack of Arabic translators -- deficiencies that have long plagued the nation's intelligence services. Ashcroft is blaming civil liberties to cover his and former Attorney General Janet Reno's own mistakes.