TERRORISM PROSECUTIONS, 2005: HOW MUCH PROGRESS?

By William Fisher

Amidst charges that President Bush and U.S. Department of Justice (DOJ) are inflating the number of criminal prosecutions for terrorism, five cases shed light on the administration’s mixed record of convictions during 2005.

In a Florida case, officials at the Federal Bureau of Investigation (FBI) falsified documents in an effort to cover repeated missteps and then retaliated against an agent who first complained about the problems.

After being held for more than three years in U.S. military custody, Jose Padilla, a U.S. citizen arrested in Chicago and labeled an "enemy combatant" by the Bush administration, was charged conspiracy to murder U.S. nationals and providing “material support” to terrorists – but not with the charges he had been originally accused of: plotting to detonate a radioactive "dirty bomb" in the United States and to blow up apartment buildings using natural gas lines.

The case against the so-called "Detroit sleeper cell" – once hailed as a significant Justice Department triumph in the “Global War on Terror”-- was dismissed after a jury convicted two men of supporting terrorism. Now a federal grand jury in Detroit is investigating whether the lead prosecutor, Richard Convertino, should be indicted for hiding exculpatory evidence from the defense, including altering dates on three FBI forms using correction fluid to conceal an apparent violation of federal wiretap law.

Ahmed Omar Abu Ali, 24, a U.S. citizen held in a Saudi Arabian jail for 20 months allegedly at the behest of the U.S., was convicted in Virginia of conspiracy to assassinate the president, conspiracy to commit aircraft piracy and contributing services to al-Qaida. He faces up to life in prison. Abu Ali claimed that he was tortured into a false confession by Saudi authorities, but the jury rejected that charge.

A former Florida professor, Sami Al-Arian, 47, accused of helping to lead a terrorist group that has carried out suicide bombings against Israel, was acquitted on nearly half the charges against him and the jury deadlocked on the rest including charges he aided terrorists. The case was seen as one of the biggest courtroom tests yet of the Patriot Act's expanded search-and-surveillance powers.

These cases provide context for assertions by President Bush, his Attorney General, Alberto Gonzales, and many other senior administration officials, that "federal terrorism investigations have resulted in charges against more than 400 suspects, and more than half of those charged have been convicted."

But, according to an analysis of the DOJ’s own records by the Washington Post, the numbers are misleading. The paper claimed that 39 people -- not 200, as officials have implied – have been convicted of crimes related to terrorism or national security”.

“Most of the others were convicted of relatively minor crimes such as making false statements and violating immigration law -- and had nothing to do with terrorism”, the analysis shows. “For the entire list, the median sentence was just 11 months.”

Said The Post, “Taken as a whole, the data indicate that the government's effort to identify terrorists in the United States has been less successful than authorities have often suggested. The statistics provide little support for the contention that
authorities have discovered and prosecuted hundreds of terrorists here. Except for a small number of well-known cases -- such as truck driver Lyman Faris, who sought to take down the Brooklyn Bridge -- few of those arrested appear to have been involved in active plots inside the United States.”

It added, “Among all the people charged as a result of terrorism probes in the three years after the Sept. 11, 2001, attacks, The Post found no demonstrated connection to terrorism or terrorist groups for 180 of them”.

Bush Administration officials have not denied the accuracy of The Post’s analysis.

The DOJ’s campaign to round up and detain alleged terrorists began under then Attorney General John Ashcroft almost immediately following the attacks on the World Trade Center and the Pentagon on September 11, 2001. During that period, large numbers of people -- primarily Arabs and other Muslims as well as South Asians – were arrested by the DOJ and held without charges or lawyers in jails run by immigration agencies.

No one caught up in this dragnet was ever accused of any terror-related crime. Some were released, often after being held incommunicado for months. Some claimed to have been beaten or otherwise mistreated. Most were deported for immigration violations – not a criminal offense under U.S. law.

David Cole, a professor at the Georgetown University Law Center and author of "Enemy Aliens," asserts that the "centerpiece of the domestic war on terrorism has been preventive detention."

"In the first seven weeks after Sept. 11, the DOJ admitted to detaining nearly 1,200 men as suspected terrorists, nearly all foreign nationals," he said.

"It subsequently adopted two anti-terrorism immigration initiatives that were aimed at men from Arab and Muslim countries on the theory that they were more likely to be terrorists. Those programs led to the detention of nearly 4,000 more people. Yet of these, not one stands convicted of any terrorist offense. The administration's record is zero for 5,000."

In a number of cases since then, the DOJ has conducted numerous high-profile press conferences accusing people of terror-related offenses, only to be prevented from bringing these charges in court because torture had been used to extract confessions from the targets. Evidence obtained through torture is not admissible as evidence in a U.S. court. The Padilla case is an example.

The DOJ has also used the “material witness” charge to keep people in custody. For example, Brandon Mayfield, an Oregon lawyer, was held for two weeks on suspicion of being a participant in the Madrid train bombing. He was released after the FBI acknowledged it was wrong when it identified a fingerprint on a backpack found in near the crime scene as Mayfield’s. He is suing the Justice Department.

Whistleblowers and people who claim to be have been victims of “extreme rendition” – being forcibly taken by U.S. authorities to be detained by countries known to inflict torture on prisoners – have been prevented from bringing their cases to U.S. courts through a variety of legal maneuvers by the DOJ.

For example, the Bush Administration has successfully invoked the “State Secrets” defense to head off suits against the government, claiming that U.S. national security would be compromised if plaintiffs’ evidence were to be made public in court.

The best known of these cases involved Sibel Edmonds, an FBI contract linguist, who was fired after she accused the Bureau of criminal activities committed by government officials and employees, and prevented from suing through invocation of the “State Secrets” defense by the Government.

The Government’s prosecution of suspected terrorists has also yielded some quirky results. Perhaps the quirkiest is the case of Dr. Steve Kurtz, an art professor at the University of Buffalo in New York State. After finding laboratory equipment and a vial of bacteria in his home, government officials including New York Governor George Pataki denounced Kurtz as a bio-terrorist. As the case folded, it was revealed that Kurtz was using the equipment for an art installation. He was charged not with a terror-related crime but with mail fraud for ordering the bacteria from a fellow professor, who was also charged. Public health authorities in Buffalo determined that the bacteria were harmless. The case is still pending.