Rush to put terror on trial stirs debate

Are cases hard to prove, or are prosecutors overzealous? The experts disagree.

Published June 6, 2005

The decision to prosecute people for terrorist activities can be tricky.

Wait too long to indict, and they gain time to carry out their plans, if they indeed are terrorists. Move too soon, and prosecutors risk making mistakes that will haunt them in court.

The start of the Sami Al-Arian trial in Tampa today raises the question: How well have federal prosecutors negotiated the legal minefield in going after alleged terrorists?

The answer depends on who's keeping score.

The Justice Department claims that its terrorism probes have netted charges against more than 375 defendants since the 9/11 attacks. And, most important, no terrorist attacks have been carried out in the United States since 2001.

"I think they have done a pretty remarkable job," said Andrew McCarthy, a former federal prosecutor and senior fellow at the Foundation for the Defense of Democracies.

Other legal analysts aren't so positive.

The department has suffered losses in several high-profile cases. The setbacks serve as showcases of overzealous prosecutions, which inflame anti-American sentiment, critics contend.

Jonathan Turley, a law professor at the George Washington University Law School, describes a few prosecutions as "embarrassing."

A case in Detroit imploded last year when a judge voided convictions against two Muslim men saying prosecutors "simply ignored or avoided any evidence" that didn't fit their theory of what happened. And a jury in Idaho acquitted a computer scientist despite former U.S. Attorney General John Ashcroft's contention that he was a part of a "terrorist threat to Americans that is fanatical."

"When you have juries in places like Boise, Idaho, rejecting national security claims, it reflects a real loss of credibility," Turley said. "It erodes confidence in the overall war on terror."

* * *

In the aftermath of 9/11, Ashcroft warned terrorists that his department would go after them, no matter where they tried to hide.

It did not take long for the FBI and federal prosecutors to begin making cases.

In New York, prosecutors scored convictions against six American men of Yemeni decent dubbed the "Lackawanna Six." The men had traveled to an al-Qaida military training camp in Afghanistan where they received weapons training and heard lectures from Osama bin Laden.

They were not accused of any terrorist acts. They, instead, faced charges of providing material support to a terrorist group. They received sentences ranging from seven to 10 years.

In Oregon, prosecutors targeted seven Muslims from Portland on charges of conspiring to wage war against the United States. The group was seen performing weapons training in a gravel quarry and were accused of planning to join the Taliban.

Six of the "Portland Seven" pleaded guilty to various charges. The seventh was killed in Pakistan.

Richard Reid, the so-called Shoe Bomber, received a life sentence for trying to blow up a Paris-to-Miami flight. "American Taliban" John Walker Lindh was captured in Afghanistan and received a 20-year sentence.

"We've dismantled terrorist operations from New York to Oregon, from Florida to Ohio, from Virginia to California," Ashcroft said in December shortly before stepping aside as attorney general. "We've brought criminal charges against 375 individuals and secured convictions or guilty pleas from 195 individuals."

Critics question the department's numbers. They contend that many of the cases had only dubious, or no, links to terrorism.

A Syracuse University study examined more than 6,400 "terrorist and anti-terrorist" matters referred to prosecutors by law enforcement in the two years after the 9/11 attacks. Only half of those referrals involved acts of terrorism, according to the study released in December 2003. And the median sentence in the cases that prosecutors won was just two weeks, the study showed.

Justice Department officials agreed that many of the defendants were not necessarily terrorists or charged with terrorism-related activities. Instead, the charges arose from the terrorism investigations. Many were convicted of immigration violations or document fraud.

"It's a great way to fight terrorism if we are getting rid of terrorists," said Paul Rosenzweig, a Heritage Foundation senior fellow. "The trouble is, no one can say for sure that we are doing that."

* * *

The American criminal justice system hinges on the premise that defendants must be proved guilty beyond a reasonable doubt.

It's a tough standard. The idea is rooted in part in the old legal adage that it's better to set 10 guilty people free than put one innocent person behind bars. But the consequences of modern-day terrorism have unsettled that calculus, Rosenzweig said.

No one wants to set 10 guilty terrorists free, he said.

"In the past, if we didn't stop Bonnie and Clyde, the world wasn't going to come to an end," he said. "In terrorism cases, the potential consequences can be apocalyptic, like, say, a nuclear device unleashed on New York City."

The new reality has forced law enforcement into a prevention-first mind-set. From a legal standpoint, that makes cases harder to win, said McCarthy, the former federal prosecutor. The evidence often won't be as strong, he said.

"The cases disrupt terrorist support networks at the early stages," he said. "It's good for preventing terrorist attacks, but not so good for making strong cases in court."

Take the case of University of Idaho graduate student Sami Omar Al-Hussayen. Federal prosecutors charged him with supporting terrorists in Israel and Chechnya and raising money for Hamas, designated by the U.S. government as a terrorist group.

Prosecutors claimed that Web sites Al-Hussayen set up were used to recruit terrorists and featured anti-American rhetoric. Al-Hussayen countered that he volunteered his time to maintain sites that supported Islam, not terrorists.

After an eight-week trial, a Boise jury acquitted Al-Hussayen of all terrorism charges. He agreed later to go back to Saudi Arabia.

Assistant U.S. Attorney Terry Derden told the Seattle Times that he didn't think anyone thought the case was "airtight."

"The attorney general asked us to go out and disrupt terrorism and material support wherever it occurred," he said. "We were unsuccessful in the terrorism charges, but ultimately we thought we were successful in disrupting what was going on."

That attitude allows law enforcement to bend the rules and intimidate Muslims, Turley said. The focus on numbers and convictions undermines prosecutorial discretion, he said, making it tough for prosecutors to back off from questionable cases.

Al-Hussayen's lawyer, David Nevin, said he thinks Justice Department officials believed the case would be an easy conviction, given Idaho's reputation as a law-and-order state. But jurors saw through the hollow evidence, he said.

"The case leaves the impression that the government kept an innocent man in jail for 511 days," Nevin told the St. Petersburg Times .

Botched prosecutions have other implications, as well, said Vermont Law School professor Stephen Dycus. They can add fuel to anti-American sentiment abroad and undermine the Justice Department's credibility at home.

"They raise the prospect of ridicule by the government's critics," he said. "They can be used by our enemies to show that we are not on the up and up."

* * *

Sami Al-Arian and his co-defendants are charged with helping operate and raise funds for the Palestinian Islamic Jihad, a terrorist group that has taken responsibility for more than 100 killings.

The case will center on whether Al-Arian and his co-defendants provided "material support" to the PIJ. Unlike defendants in other terrorism cases, Al-Arian is not accused of being merely a peripheral player. Prosecutors say he was a leader of the PIJ.

"There is a lot on the line for prosecutors," Turley said. "They need a conviction and they must establish the credibility of that conviction."

Has the Justice Department learned from its previous cases?

"Ask me that after the Al-Arian trial," Rosenzweig said.

--Times researcher Caryn Baird contributed to this report. Graham Brink can be reached at 727 893-8406 or brink@sptimes.com