[Infowarrior] - Few Clear Wins in U.S. Anti-Terror Cases

[Richard Forno]

Few Clear Wins in U.S. Anti-Terror Cases
Moving Early on Domestic Suspects Often Does Not Bring Convictions

By Carrie Johnson and Walter Pincus
Washington Post Staff Writers
Monday, April 21, 2008; A01

http://www.washingtonpost.com/wp-dyn/content/article/2008/04/20/AR2008042002
227_pf.html

When seven ragtag men in a Miami religious sect were indicted in 2006 for
their role in a bizarre plot to blow up the FBI Miami office and Chicago's
Sears Tower, then- Attorney General Alberto R. Gonzales said the case
represented "a new brand of terrorism" among homegrown gangs that "may prove
to be as dangerous as groups like al-Qaeda."

Justice Department officials used similar rhetoric in a 2003 case against a
Tampa-area man and his associates who allegedly supported a reign of terror
by a violent Palestinian group. The officials did so again in a 2004 case
involving a Dallas charity known as the Holy Land Foundation, which they
said provided "blood money" to finance overseas suicide bombings.

But juries in all three cases saw things differently than the government's
national security team. In the most recent disappointment for federal
prosecutors, a jury last week did not reach a verdict in the Miami case for
the second time. In the Holy Land case, one defendant was cleared of the
charges and jurors deadlocked on charges against the others. After 12 days
of deliberation, jurors in the Tampa case acquitted two men and could not
agree on the charges against the main defendant.

The department's domestic terrorism record to date -- no new attacks, but
few blockbuster convictions and some high-profile hung juries or acquittals
-- has provoked criticism of its early strategy for going after homegrown
terrorist cells and the people who fund plots well before deadly events
occur.

Jurors appear to be particularly troubled by a controversial element in the
Miami case, part of several other early prosecutions, in which FBI
informants encouraged others to perform acts they otherwise may not have
done.

This week, federal prosecutors in Miami will announce whether they will seek
to try the defendants for the third time. The government's incentive to do
so is powerful: Two years ago, it intended the case to be a model for
intervention against potential terrorists before they acquire the weapons
and insight needed to act.

Independent commissions have urged the FBI to become more aggressive at
detecting threats and neutralizing them before they explode. But what
emerged was an approach where investigators sometimes acted very early,
charging conspiracies to commit minor crimes or immigration and tax
violations as a way to preempt potential threats, while avoiding the
disclosure of sensitive intelligence.

Justice Department officials say they are pleased to have won a few
high-profile convictions as well as some little-noticed guilty pleas.
Increasingly, authorities say, their current goal is broader than a
courtroom victory: It is collecting enough intelligence to eradicate a
threat by using informants, wiretaps and other tools to get as clear a
picture as possible .

"Our mission is not just to disrupt an isolated plot, but to thoroughly
dismantle the entire network that supports it," FBI Director Robert S.
Mueller III told an audience this month.

* * *

The Miami case revolved around a part-time contractor who gathered a loose
band of men in a rented room in a downscale neighborhood known as Liberty
City. The group, distantly affiliated with the Moorish Science Temple
religion, talked about Muhammad, Jesus, Confucius and Buddha, and also
practiced martial arts.

Its leader, Narseal Batiste, told his Yemenese grocer in October 2005 that
he wanted to conduct jihad to overthrow the U.S. government. The grocer, an
FBI informant who himself had a criminal record, told the bureau. The FBI
then employed a second informant, this one an Arab from overseas who
depicted himself as a representative of Osama bin Laden.

Batiste confided, somewhat fantastically, that he wanted to blow up the
Sears Tower in Chicago, which would then fall into a nearby prison, freeing
Muslim prisoners who would become the core of his Moorish army. With them,
he would establish his own country.

The FBI informant, under bureau guidance, refocused Batiste on what he said
was bin Laden's plot -- to bomb FBI offices in several U.S. cities.
Batiste's group was enlisted by the FBI informant to aid in the attack. The
informant then wrote out what he termed an al-Qaeda oath, and got Batiste to
lead his men in taking it -- an act that the government argued was key
evidence of their guilt.

After one of the seven left Miami to get away from the group, an internal
dispute developed and it fell apart. They were then arrested, charged with
conspiracy to commit a terrorist act and placed in prison, where they
remain.

Jurors in the case, which ended in a mistrial last week, have not spoken
about it publicly. But panel members who deliberated in the first trial told
reporters they were skeptical that the defendants were as dangerous as
prosecutors asserted.

* * *

Formerly the largest Muslim charity in the United States, the Holy Land
Foundation was "funding the works of evil" and encouraging suicide bombings
on behalf of Hamas, according to a press conference statement in 2004 by
then-Attorney General John D. Ashcroft.

Earlier that morning, authorities had arrested a group of men with ties to
the foundation for supporting Hamas, violating laws that bar financial
transactions that threaten national security, and money laundering, among 42
counts that could have sent the men to prison for decades.

But the prosecution ended in a mistrial last October, when Dallas jurors
could not reach agreement on charges involving two defendants and mostly
cleared another of criminal wrongdoing. Jurors have offered contrasting
accounts of the problems they faced, but at least one cast doubt on the
quality of the evidence. Prosecutors are scheduled to retry the case later
this year.

A less-publicized case involves Javed Iqbal, a Brooklyn businessman who
provided overseas cable access to clients and data to others, including U.S.
government agencies. In August 2006, Iqbal was arrested for conspiring to
supply financial support to a terrorist agency. His alleged crime was
selling access to Al-Manar, the news and information cable channel run by
Hezbollah out of Lebanon.

According to court filings, the case started when a confidential informant
told the FBI in February 2006 that Iqbal was selling access to Al-Manar. At
the time, it was not illegal, but the next month the Treasury Department
added Al-Manar to the list on the grounds that funds it obtained went to
Hezbollah, which the United States considers a terrorist group.

In June, the FBI's confidential informant went back to Iqbal's company and
again offered to buy the overseas cable service that included Al-Manar.
Iqbal told the informant that Al-Manar was temporarily unavailable, but
would return. Iqbal also allegedly said he knew the channel was now on the
terrorist list, but he expected that to change.

After being arrested for conspiring to violate the law, Iqbal was released
on $250,000 bail. In November 2006, he was indicted again, along with a
partner, this time on multiple charges of conspiracy to provide support to
Hezbollah.

At the time of the arrests, Michael Garcia, the U.S. attorney for the
Southern District of New York, said, "As terrorist organizations become more
sophisticated, it is critical that we respond using all the law enforcement
tools the law provides." They are awaiting trial.

* * *

The Justice Department, U.S. attorneys and the FBI have doggedly pursued
individual suspects in these domestic terrorism cases, even when their
initial steps are unsuccessful.

In Miami, prosecutors not only sought a retrial after the first hung jury
but also went after the one person, Lyglenson Lemorin, whom the jury found
not guilty. Instead of turning him loose, they immediately had him detained
for possible deportation to his native Haiti on grounds that he had been
indicted on a felony charge.

Law enforcement officers say that in deciding when to indict, they weigh
whether the targets might flee overseas, whether the cost of surveillance is
paying adequate dividends, and whether a group is likely to take actions
that could cost human lives.

"There's a risk here that while we're trying to perfect our evidence that
something very bad could happen," said Patrick Rowan, acting chief of the
Justice Department's National Security Division. "It's certainly the case
that there is a value in stopping a plot, even if you aren't 100 percent
certain that a conviction is assured."

Robert M. Chesney, a law professor at Wake Forest University who studies the
government's terrorism cases, said the picture is complicated. "The bottom
line is that they are doing considerably better than is often reported . . .
but they certainly aren't doing perfectly and they've had plenty of black
eyes along the way," Chesney said.

One senior law enforcement official recently said, "We may have been too
aggressive at the beginning." He thinks that early cases, such as the one in
Miami, were pushed too hard and that the FBI and U.S. attorneys now
understand that getting a full picture of potential threats by groups is as
important as making cases.

J. Wells Dixon, a staff attorney for the Center for Constitutional Rights,
said the Miami case is among the "few and far between" disappointments in
the government's aggressive campaign to attack the sources and funding of
possible terrorist groups. These outliers, Dixon said, are not a signal that
terrorism cases are too complex for juries but rather a sign that the
current system is working.

"If you have 12 jurors who decide that an individual or an organization
should not be convicted, I think that suggests these people are in fact not
guilty of anything," Dixon said.

Andrew C. McCarthy prosecuted Omar Abdel Rahman, the man known as the blind
sheik, for his role in the 1993 World Trade Center bomb plot. McCarthy said
that had the first Trade Center bombing, which killed six people, not
happened, he still wonders whether the government could have secured
convictions of the same defendants on more nebulous charges that they had
made "fantastical" plans to blow up the United Nations and the Lincoln
Tunnel.

"The argument that the people really are pathetic, hapless, incapable, has
more resonance if you strike at an early stage," he said. "In a way, you're
undone by your own efficiency. I do think it's harder to be a prosecutor
today."

Staff researcher Julie Tate contributed to this report.