Concerns about evidence, defendant complaints and the Patriot Act are brewing into a major legal clash.
By GRAHAM BRINK
Published March 22, 2004
[Times photo (1998)]
Sami Al-Arian was a popular USF computer engineering professor while he also earned a national reputation as an activist for Muslims.
[Times photo (2003): Ken Helle]
On Feb. 20, 2003, Al-Arian was arrested; he and seven others were accused of backing and raising funds for Palestinian Islamic Jihad.
TAMPA - One year after the arrest of Sami Al-Arian on terrorist charges, a potentially precedent-setting courtroom battle is taking shape.
The case of the former USF professor presents several unusual challenges:
The sheer volume of evidence. The conversations of Al-Arian and others that federal agents secretly taped over a decade total more than 21,000 hours. It would take 21/2 years to listen to all of them - if they were played without a break.
The conditions under which Al-Arian and a co-defendant are confined as they await the January 2005 trial. They are being held in a federal prison and have complained about everything from limits on their access to lawyers to constant strip searches. Most recently the two defendants say two notebooks full of legal analysis vanished after a search of the cell they share.
Destroyed court records. Documents from the Al-Arian case were inadvertently shredded by court employees who were preparing to move into the new federal courthouse in Tampa.
In the coming months, more issues will surface. The audibility of the wiretap recordings. Disputes over translation of the Arabic conversations. The constitutionality of the USA Patriot Act.
* * *
In the early 1990s, Sami Amin Al-Arian was a popular computer engineering professor at the University of South Florida. He was also earning a national reputation as an activist for Muslims.
The FBI had another label: terrorist.
Agents began investigating Al-Arian and others connected to the World and Islam Studies Enterprise, a think tank operated at USF. The agents obtained 152 warrants over several years to wiretap phones and fax lines. The requests for intelligence-only wiretaps were reviewed in Washington by an obscure panel of judges who make up the Foreign Intelligence Surveillance Court.
The wiretaps came with a catch. The Department of Justice operated under the belief that the evidence obtained could not be used to prosecute the targets, only to gather intelligence. The agents were not even allowed to tell colleagues on the investigative side of the FBI what the wiretaps were uncovering.
The restrictions were created after the Watergate scandal when there were concerns the FBI could be used to spy on political enemies.
Then came the Sept. 11 attacks. Congress passed an act entitled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, better known as the USA Patriot Act. Attorney General John Ashcroft quickly rewrote the rules, breaking down the wall between the FBI's intelligence side and investigative side.
On Nov. 18, 2002, an appeals court shattered the wall entirely, ruling the Department of Justice had consistently misinterpreted the rules about sharing evidence. This cleared the way for agents to swap intelligence material.
Three months later, on Feb. 20, 2003, agents arrested Al-Arian.
* * *
The 50-count indictment accused Al-Arian and seven other men of supporting, promoting and fundraising for Palestinian Islamic Jihad, which the U.S. government had declared a terrorist group.
Only Al-Arian and three others - Sameeh Hammoudeh, Hatem Fariz and Ghassan Ballut - were arrested. The other four remained free overseas.
The indictment did not accuse Al-Arian of planning or carrying out any attacks by Palestinian Islamic Jihad. Instead, it focused on allegations that he was the group's financial planner and a chief U.S. fundraiser.
Prosecutors revealed that agents had taped 21,000 hours of conversations during almost a decade of surveillance. Most of the conversations were in Arabic.
The prosecutors hit an early snag when they admitted that they were mistaken about the identity of a person Fariz spoke to in one recorded phone conversation. It was not a leader of the Palestinian Islamic Jihad, as was alleged, but someone else.
Federal magistrate judge Mark Pizzo said that meant some of Fariz's phone calls could be legitimate fundraising for charities and not Palestinian Islamic Jihad. He characterized the case against Fariz as "not substantial," and set him free on bail. Ballut was also released on bail.
The prosecutors, however, persuaded the magistrate judge to keep Al-Arian and Hammoudeh in jail. This pretrial confinement spurred a whole other set of controversies.
Al-Arian and Hammoudeh began complaining about conditions at the prison. The Coleman Federal Correctional Complex in Sumter County does not normally hold inmates awaiting trial, just those who have already been convicted.
Al-Arian and Hammoudeh complained of a lack of pencils to take notes, limited phone calls to their lawyers, poor law library facilities and strip searches. The defense lawyers complained that they had to wait up to two hours to see their clients once they arrived at the prison.
This month, lawyers for the two men said in court that during a search of cells guards took two full notebooks from Al-Arian and Hammoudeh covered by attorney-client privilege. Prison officials have been unable to locate the notebooks.
U.S. Magistrate Judge Thomas McCoun put an end to some of the strip searches and secured proper writing materials. McCoun, however, remained skeptical about some of the other complaints, saying that prison officials painted a different picture.
Early on, Al-Arian had to cut loose his first lawyer when he could not come up with the money to pay him. Some lawyers estimated the price for defending Al-Arian in the $2-million range.
The judge assigned him two experienced defense attorneys. Al-Arian bristled at having court-appointed lawyers and opted to represent himself. Meanwhile, his supporters across the country continued to raise money for a legal defense fund. In October, high-profile Washington lawyer Bill Moffitt and Tampa lawyer Linda Moreno announced that they were taking on the case.
"We believe these are the civil rights cases of the 21st century," Moffitt said at his initial news conference. "It tells us a lot about the type of society we're going to be post-9/11."
Much of the courtroom action has focused on the exchange of evidence, especially taped conversations. The prosecutors have said that no more than 800 hours are relevant to the case. The defense attorneys, however, do not want to take their word for it. They say information from the other 20,000 hours might help their defense.
Fariz's lawyers from the Federal Public Defenders Office and Ballut's court-appointed attorney have estimated that translating all the tapes from Arabic to English would cost about $540,000. Judge McCoun has balked at the expenditure. He has encouraged the defense lawyers to first focus on translating the conversations the prosecutors have indicated might have some relevance.
At Coleman, Al-Arian and Hammoudeh are making their way through the taped conversations referred to in the indictment, though their attorneys have continually complained the listening devices keep breaking, the batteries fail and they don't have enough time to make a thorough review.
* * *
The coming months promise more clashes.
The content of the tapes, none of which has been played in court, is already in dispute.
Al-Arian and some of the defense lawyers have suggested that the contents of some of the tapes are hard to hear. They will also challenge the prosecutors' interpretations of what was said. Al-Arian argued last year that Arabic has many dialects, and it takes a skilled translator to distinguish the real meaning of what the speakers are saying. Literal translations can be misleading, he said.
Another looming fight involves the court's efforts to re-create files inadvertently destroyed by the federal clerk's office in Tampa. The files, which included 1995 search warrants for Al-Arian's home and office, were erroneously purged by court employees who were trying to cut down on excess paper during a move to the new federal courthouse.
Following guidelines for reconstructing case files, Judge McCoun recently asked the lawyers involved in the case at the time to turn over any of the documents they have in their files that originally made up the public files. But as of last week, there appeared a good chance that the files would not be completely reconstructed.
The missing documents could open a door for Al-Arian's attorneys. Moreno said they must have the documents to scrutinize the lawfulness of the searches, whether the searches exceeded the scope laid out in the warrants and any other possible violations of the Fourth Amendment, which protects against unlawful searches and seizures.
"The agents removed a massive amount of materials," Moreno said. "We believe (the destroying of the files) poses a grave problem to the prosecution of the case."
Former federal prosecutor John Fitzgibbons said the defense lawyers have a duty to raise the issue. But he wasn't so sure they would prevail. A lot could depend on how well the files are reconstructed, and the reliability of the documents used to do so. "The reconstruction will probably never satisfy Dr. Al-Arian," he said. "In the back of his mind he will always think the government phonied up the documents."
Moffitt has argued that Al-Arian had the constitutional right to support political organizations, whether by making speeches or raising money. He compared Al-Arian's case to the prosecution of suspected U.S. communists in the 1950s and antiapartheid activists in South Africa. He argued that much of the indictment outlines alleged activity that took place before the United States declared the Palestinian group a terrorist organization.
The activities included speeches, attending conferences and raising money. The fundraising, in particular, Moffitt said, was essential to Al-Arian's political opposition to Israel's occupation of the West Bank and Gaza Strip.
But U.S. District Judge James Moody rejected the free speech argument this month. He stated in a 69-page ruling that the prosecutors are not trying to criminalize speech, they are simply using the defendants' conversations to show the existence of the conspiracies and their participation in them.
Moreno, however, pointed to another part of the ruling, calling it critical to their case. Moody wrote that it is not enough to show the defendants knew of past unlawful activity. The government needs to prove that the defendants intended to further the group's unlawful activities. A jury might infer this was the intent, the judge wrote, if the group kept committing illegal acts and the supporters, knowing that, kept providing funds. Tampa defense attorney Steve Crawford, a former federal prosecutor, said all the issues add up to the makings of a major legal confrontation. "I think it is safe to say that this will be a precedent-setting case," Crawford said. "It is one of the first and most high-profile cases brought since the Patriot Act was passed."