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Al-Arian attorneys: Indictment came too late

They ask a federal judge to grant a full-blown evidentiary hearing to discuss why it took so long to indict him.

By GRAHAM BRINK
Published January 15, 2005

TAMPA - Lawyers for terrorism suspect Sami Al-Arian argued to a federal judge on Friday that prosecutors waited too long to indict him and his co-defendants.

The indictment reaches to 1984, and many of the alleged acts used to bolster the case occurred more than 10 years ago, attorney William Moffitt said.

The lapse in time would make it difficult, if not impossible, for anyone to summon memories and events that would help in their defense, Moffitt said.

Moreover, Moffitt said, law enforcement would have been irresponsible to allow a conspiracy that includes allegations of murder and other terrorist plots to go on for so long without acting.

"I would suggest to you that the conspiracy is overblown," Moffitt said.

Federal prosecutor Terry Zitek countered that, legally, it is irrelevant when an investigation begins. What matters is the time between the end of the investigation and the indictment. In Al-Arian's case that was only two months.

Zitek said the defense has not been "substantially prejudiced" by any delay, which is a requirement for a judge to grant Moffitt's request. Moffitt raised these and other allegations to persuade U.S. Magistrate Judge Thomas McCoun to grant a full-blown evidentiary hearing, including testimony from witnesses, on how the government handled the case. McCoun said he would consider the law and arguments and rule later.

Federal agents arrested Al-Arian and three other men in February 2003 on charges that focus on their alleged role in supporting, promoting and raising funds for the Palestinian Islamic Jihad, a terrorist group. Moffitt also told the judge that the government investigators destroyed tape-recorded evidence that could have helped his client's case, including telephone conversations in which FBI agents asked for Al-Arian's advice on Middle Eastern politics.

Foreign intelligence agents with the FBI tapped Al-Arian's phones starting in the mid 1990s. The passage of the Patriot Act in 2001 cleared the way for prosecutors to use information gathered during intelligence investigations in criminal cases.

Moffitt argued that the intelligence agents had a less stringent standard for documenting and maintaining conversations than criminal investigators, and did not preserve records of telephone calls than would now be beneficial to Al-Arian's defense.

"Some of the conversations we would expect to find, simply aren't there," Moffitt said. "Evidence has been destroyed."

Zitek said the agents followed proper procedures - they kept records of pertinent conversations and disregarded the rest. None of Moffitt's reasons were strong enough to dismiss any of the charges, Zitek said.

Graham Brink can be reached at 813 226-3365 or brink@sptimes.com

[Last modified January 15, 2005, 01:02:06]