The New York Times > Trial and Errors: After Convictions, the Undoing of a U.S. Terror Prosecution

This is an article everyone in a America should read. It is a chilling tale. Six days after 9/11, three Arab immigrants were arrested and accused of operating an Al Qaeda sleeper cell. Nationwide news, comments by our Attorney General, and overzealousness created by the aura of 9/11 made for prosecution and conviction in a worse case scenario of justice gone wrong. Senior Justice Department officials micromanaged the case even though it was admittedly weak because of the "national interest". One suspect, apparently believing they were already convicted, out of fear, created juicy fictional evidence in hopes of getting a reduced sentance. And then discovering their error, the Justice Department petitioned the Courts to erase the conviction.
Justice is truly blind. It order for it to do it's delicate dance with any credibility, it must operate in a quiet and plodding environment of due process and due diligence. As soon as the public eye enters, emotions seeth, justice quickly degenerates.
The New York Times > Trial and Errors: After Convictions, the Undoing of a U.S. Terror Prosecution
The arrests received worldwide attention as part of a nationwide terrorist dragnet. But for almost a year, the only charges brought were for document fraud.
Mr. Convertino, the lead prosecutor, said the interest in Washington was swift. Senior Justice Department officials, he said, "must have asked me a hundred times" if the men had links to the Sept. 11 attacks. His answer, he said, was that though he believed the men had ties to terrorists, he had no evidence linking them to Sept. 11. Nevertheless, at a press conference on Oct. 31, 2001, Attorney General John Ashcroft said the men were "suspected of having knowledge of the Sept. 11 attacks" before they happened.


Complete Article
After Convictions, the Undoing of a U.S. Terror Prosecution
October 7, 2004
By DANNY HAKIM and ERIC LICHTBLAU
DETROIT, Oct. 6 - Publicly, federal prosecutors declared in
the summer of 2002 that they had thwarted a "sleeper
operational combat cell" based in a dilapidated apartment
here.
Privately, senior Justice Department officials had doubts
about the strength of the case even as they were moving to
indict four Middle Eastern immigrants on terrorism charges.
The evidence was "somewhat weak," an internal Justice
Department memorandum obtained by The New York Times
acknowledged. It relied on a single informant with "some
baggage," and there was no clear link to terrorist groups.
But charging the men with terrorism, the memorandum said,
might pressure them to give up information.
"We can charge this case with the hope that the case might
get better," Barry Sabin, the department's counterterrorism
chief, wrote in the memorandum, "and the certainty that it
will not get much worse."
But the case did get worse. After winning highly publicized
convictions of two suspects on terrorism charges in June
2003, the Justice Department took the extraordinary step
five weeks ago of repudiating its own case and successfully
moving to throw out the terrorism charges. In a long court
filing, the government discredited its own witnesses and
found fault with virtually every part of its prosecution.
The blame, the department suggested in its filing, lay
mainly at the feet of the lead prosecutor in Detroit,
Richard G. Convertino, whom it portrayed as a rogue lawyer.
But documents and interviews with people knowledgeable
about the case show that top officials at the Justice
Department were involved in almost every step of the
prosecution, from formulating strategy to editing the draft
indictments to planning how the suspects would be
incarcerated.
President Bush himself said the Detroit case was one of
several critical investigations around the country that had
"thwarted terrorists.'' But the wreckage of the case
reveals that it was built on evidence that has since been
undermined. A series of missteps and in-fighting weakened
the case further, documents and interviews show. The first
line of the government's indictment now appears to have
been copied without attribution from a scholarly article on
Islamic fundamentalism. Government documents that cast
doubt on a critical piece of evidence - what was described
as a surveillance sketch of an American air base overseas -
were not turned over to the defense. And tensions between
prosecutors in Detroit and Justice Department officials in
Washington escalated into open hostility.
Mr. Convertino angered the Justice Department by testifying
at a Congressional hearing held by a powerful Republican
senator who is a vocal critic of the department. Mr.
Convertino, who was ultimately removed from the
prosecution, is now suing the department and is under
investigation for his handling of this case and others.
That inquiry led to the public disclosure of the name of an
Arab informant in the case, who then fled the country
because, he said, he feared for his safety.
The miscalculations and bad blood so overshadowed the case
that the truth about the defendants' intentions may never
be known.
Some law enforcement officials, however, continue to insist
that the prosecution was a good one. In an internal e-mail
message, an F.B.I. supervisor in Detroit told agents last
month that they should be proud that their work "may have
prevented another attack."
But the Justice Department's critics say that the
prosecution was overzealous and that it demonstrated how
the Bush administration's pre-emptive approach to fighting
terrorists by disrupting plots before they materialize can
clash with legal principles of due process and the right to
a fair trial.
"This case became a poster child for the Justice Department
in the war on terrorism, and it had no institutional checks
and balances in place to really look hard at the evidence,"
said Peter Margulies, a law professor at Roger Williams
University in Rhode Island who has written extensively
about terrorism.
The Justice Department declined to discuss the case
publicly, citing a judge's gag order and pending
investigations. But internal documents show that from its
early days, the case never appeared as strong as the
department's public enthusiasm for it.
In August 2002, just days after Mr. Sabin's internal
memorandum expressed doubts about the evidence, the
suspects were indicted on terrorism charges, prompting a
supervisor in Washington to send the prosecutors in Detroit
e-mail congratulating them on the indictment "and the nice
media coverage."
"For what it's worth," the supervisor, Jeff Breinholt,
wrote, "the higher-ups in D.C. are pleased."
Willing a Sept. 11 Tie
Six days after the Sept. 11
attacks, just before nightfall, seven federal agents
appeared at an apartment on the outskirts of Detroit
looking for Nabil al-Marabh, an Arab immigrant on the
terrorist watch list.
Mr. Marabh no longer lived there, but agents found three
other Arab immigrants. They were detained after agents
combing through the apartment found false identification
papers, crude sketches that the authorities came to see as
outlines of possible targets, religious audiotapes and a
videotape that they believed held surveillance of the MGM
Grand hotel in Las Vegas, The New York Times headquarters
and other sites.
Agents also found expired badges from the Detroit
Metropolitan Airport belonging to two of the men, who had
once worked there. A fourth suspect, a Moroccan wanted for
credit card fraud, was arrested later.
The arrests received worldwide attention as part of a
nationwide terrorist dragnet. But for almost a year, the
only charges brought were for document fraud.
Mr. Convertino, the lead prosecutor, said the interest in
Washington was swift. Senior Justice Department officials,
he said, "must have asked me a hundred times" if the men
had links to the Sept. 11 attacks. His answer, he said, was
that though he believed the men had ties to terrorists, he
had no evidence linking them to Sept. 11. Nevertheless, at
a press conference on Oct. 31, 2001, Attorney General John
Ashcroft said the men were "suspected of having knowledge
of the Sept. 11 attacks" before they happened.
The statement generated a fresh round of news coverage, but
it was baseless. It also violated a week-old gag order by
the judge, Gerald E. Rosen, who later rebuked Mr. Ashcroft
in an 83-page opinion. The Justice Department retracted Mr.
Ashcroft's statement within two days.
Prosecutors continued to pursue a terrorism investigation,
however. It was based largely on circumstantial evidence,
including the sketches and tapes, and primarily tied
together by someone who knew the men, Youssef Hmimssa, a
Moroccan wanted on fraud charges. Internal Justice
Department memorandums show that the doubts about the case
among officials were growing even as prosecutors prepared a
new indictment in August 2002, this one charging the men
with material support of terrorism. In an e-mail message to
Justice officials days before this indictment, David
Nahmias, a senior counterterrorism prosecutor in
Washington, wrote that "the charge is somewhat aggressive,
but worth pursuing," adding, "this case has received press
attention before."
In a six-page memorandum attached to e-mail, Mr. Sabin, the
Justice Department's head of counterterrorism, said the
case was "not as strong as other terrorist financing cases"
and the chance of success was "a close call.''
But Mr. Sabin said the men's behavior "fits the pattern of
what we know about global jihad planning."
"The weaknesses in this case," he wrote, "reflect the fact
that what was a fledgling scheme was disrupted at an early
stage." He concluded, "From a nationwide enforcement
standpoint, taking a chance on this case is probably worth
the risk."
The indictment meant more headlines and coincided with news
of an unrelated terrorism case in Seattle.
"I'm enjoying speculation that the Detroit and Seattle
cases are linked and part of an orchestrated nationwide
enforcement program," Mr. Breinholt, the Justice Department
supervisor, said in congratulating the prosecutors. "The
press gives us much more credit than we deserve, not
knowing that the timing was largely happenstance."
Mr. Convertino said he was surprised to discover that the
opening line of the new indictment and a second passage -
both written in Washington, he said - had been taken almost
verbatim from a scholarly article on terrorism by Quintan
Wiktorowicz, a professor at Rhodes College in Memphis.
"It looked like they had just lifted parts of my article
word for word," Professor Wiktorowicz said in a recent
interview.
Meanwhile, cooperation between Detroit and Washington was
fracturing. Keith Corbett, Mr. Convertino's superior,
bristled at Washington's intense oversight.
"In the 25 years that I have worked for the Department of
Justice, I have never seen anything approaching this level
of micromanagement," Mr. Corbett wrote in e-mail to Jeffrey
Collins, the top federal prosecutor in Detroit, on Feb. 26,
2003. "Every act was subject to review by petty
bureaucrats," Mr. Corbett wrote.
A 2003 departmental review of the Detroit office, obtained
by The Times, cited an "us versus them" attitude between
Mr. Corbett's unit, which normally focused on organized
crime, and Joseph Capone, a senior terrorism prosecutor
sent from Washington to monitor the case. The report also
said that Mr. Corbett's unit was "not adequately
supervised," and it made Mr. Collins, who had no experience
as a prosecutor before being named United States attorney
in 2001, appear out of touch, saying he "was surprised to
hear that there were still problems" between his office and
Washington. Mr. Collins, who did not return calls for
comment, resigned this August shortly before the government
repudiated the case.
In a rebuttal to the review, Mr. Corbett wrote that Mr.
Capone had made it clear that "he had no intention of
participating" in the trial and had spent 10 weeks "in a
hotel at taxpayers expense, when he was not playing
basketball in the evenings" with prosecutors. Neither Mr.
Corbett nor Mr. Capone would comment.
There were also protracted disputes between prosecutors in
Washington and Detroit over the Justice Department's desire
to impose extraordinary custody measures on the suspects,
an idea that Mr. Convertino said was unworkable and
unnecessary. Officials in Washington even floated the idea
of declaring the suspects "enemy combatants,'' he said. Mr.
Convertino said officials in Washington would not give him
the resources he needed, assigning only one full-time
F.B.I. agent. Unable to get an adequate computer for
closing arguments, "we bought a laptop from Costco," he
said. "It was bubble gum and shoestring. Every day we'd
come back and say, 'If the American public only knew.' ''
Mr. Convertino was known for an intense and self-righteous
manner. Three former attorneys general had praised his
dedication in letters, and Mr. Corbett wrote in a
performance review, "For Rick, all trials are major."
Opposing lawyers found him sharp-elbowed and complained
throughout the trial that he was making it difficult for
them to see evidence and have access to witnesses. Judge
Rosen sometimes exhorted him to be forthcoming.
"There seems to be a significant amount of evidence that
was known by Mr. Convertino that was withheld," said James
Thomas, a lawyer for one of the suspects. Senior Justice
Department officials said in interviews that they did not
believe Mr. Convertino was sharing important information
with them, either. One official said Washington had
directed supervisors in Detroit to "rein him in" before the
trial started.
During a nine-week jury trial, the government presented the
men - Karim Koubriti, Abdel Ilah Elmardoudi, Ahmed Hannan
and Farouk Ali-Haimoud - as a clandestine group that was
collecting intelligence for potential terrorist plots and
that might even have carried out an attack. The theory was
bolstered by the testimony of agents and officials from the
F.B.I., the Air Force and the State Department.
But it was Mr. Hmimssa, who once lived with the men, who
offered the most chilling testimony. He said the suspects
had communicated in a code involving names of Moroccan
soccer players and talked about obtaining Stinger missiles,
shooting down commercial airplanes and staging an attack in
Las Vegas. Mr. Elmardoudi, he said, told him, "Soon, what
is happening in the West Bank and Gaza is going to happen
here.''
Defense lawyers said Mr. Hmimssa was simply telling the
government what it wanted to hear so that he could obtain a
favorable plea agreement. One defense lawyer showed that
part of a purported sketch of an American air base in
Turkey, which the government said was a hangar, actually
bore a resemblance to a map of the Middle East.
On June 3, 2003, the government received a split decision.
Two of the four defendants were convicted of terrorism and
document fraud charges. A third was convicted only of
document fraud, and a fourth, Mr. Ali-Haimoud, was
acquitted.
"None of us had links with terrorists in any way,'' Mr.
Ali-Haimoud, then 22, said in an interview after the
verdict. "I'm just a regular Muslim.''
During the trial, the increasingly chilly relations between
Mr. Convertino and Mr. Capone, the lawyer sent by
Washington to monitor the case, were on display. Instead of
joining Mr. Convertino at the prosecution table, Mr. Capone
watched from a bench behind the press gallery.
A Political Tangle
Mr. Ashcroft hailed the convictions as
"a clear message" that the government would "work
diligently to detect, disrupt and dismantle the activities
of terrorist cells." But there was unfinished business for
the prosecution. That became clear for Mr. Convertino when
he was called into Mr. Collins's office the next month and
dressed down because of his frosty and "unacceptable"
relations with Justice Department supervisors in
Washington.
"I've been ordered to reprimand you," Mr. Convertino quoted
his boss as saying.
It was the beginning of a spiral that would ultimately
derail the terrorism prosecution.
In late August 2003, Mr. Convertino received a phone call
from a Senate Finance Committee investigator looking into
document fraud by terror suspects. Within days, Mr.
Convertino was told that he and his star witness would be
subpoenaed to appear before a hearing and explain how such
fraud was done.
His testimony, in early September, was an innocuous
recitation of the case, but his appearing before the panel
set off a firestorm at Justice. The Finance Committee's
chairman, Senator Charles E. Grassley, Republican of Iowa,
a frequent critic of the Justice Department, had held up
several high-level appointments at the department because
of objections over its treatment of whistleblowers. In a
lawsuit against the department filed this year, Mr.
Convertino says he was told by Mr. Nahmias, the senior
department official, that Mr. Grassley was not "our friend"
and "hates the F.B.I."
Mr. Convertino was removed as lead prosecutor on Sept. 4,
three days before he was even served with the subpoena. The
department also began what became a criminal investigation
of his handling of the terrorism case as well as previous
cases.
Dissension within the department broke into the open last
December at a hearing that was called because a new
prosecutor on the case, Eric Straus, had produced two
pieces of evidence that had not been turned over to the
defense. The most prominent was a letter from Butch Jones,
a cellmate of the government's key witness, Mr. Hmimssa.
Mr. Hmimssa had said he had lied about the case, Mr. Jones
wrote.
At the hearing, Judge Rosen asked five federal prosecutors
why he had not been made aware of the evidence. In
responding, they hardly presented a united front.
Mr. Convertino called the letter "absurd" and said Mr.
Jones, a drug lord facing capital charges, had no
credibility. Mr. Corbett agreed with his assessment. But
Alan Gershel, the No. 2 prosecutor in Detroit, said he had
ordered Mr. Corbett to disclose the letter, calling it a
"no-brainer.'' Mr. Corbett said he had "no recollection of
that conversation.'' The judge then chastised Mr. Capone,
the prosecutor from Washington, for not making sure the
letter was turned over.
Judge Rosen ordered the government to review the case in a
formal report. "Folks, this is a fine kettle of fish," he
said.
Trading Ethics Charges
In the aftermath of the hearing, The Detroit Free Press in
January, quoting anonymous Justice Department officials,
detailed a range of accusations of legal and ethical
misconduct by Mr. Convertino, apparently taken straight
from an internal investigation of him.
To Mr. Convertino's detractors, the accusations confirmed
their suspicions that he was willing to play rough to win a
case. But to his supporters, it showed that Justice
Department officials, upset at Mr. Convertino over his
dealings with Senator Grassley, were intent on
marginalizing him, even if it meant muddying up the Detroit
prosecution and disclosing sensitive information in
violation of department policy.
"This was all part of an attempt to discredit him," said a
senior Democratic aide in Congress who was involved in the
case and spoke on the condition of anonymity because of
Judge Rosen's gag order.
In the fracas, Mr. Grassley went so far as to put a hold
last year on the nomination of James Comey to be Mr.
Ashcroft's top deputy. The senator agreed to let Mr.
Comey's nomination go through only after the Justice
Department agreed to assign Mr. Convertino to work on Mr.
Grassley's Congressional drug caucus, officials disclosed.
"It is amazing that the very people within the Justice
Department accusing this employee of unethical conduct
appear themselves to be committing unethical acts," Mr.
Grassley said in a January statement. He declined to
comment for this article.
Mr. Convertino has submitted to the Justice Department a
point-by-point rebuttal of the accusations against him in a
three-inch-thick dossier. The department, meanwhile, has
opened an investigation to determine how the accusations
were leaked to The Free Press.
The Free Press article also disclosed the names of two
confidential informants in the terror-cell case. "I've
slept in my truck two nights in a row; I'm afraid for my
life," one of them said in an interview with The Times this
year. The handling of that informant, who has since fled
the country, as well as other informants, has also prompted
an internal F.B.I. investigation.
'A Three-Legged Stool'?
On Aug. 31, the Justice
Department made public the results of its court-ordered
review of the case. It was a scathing critique. Craig
Morford, the federal prosecutor in Cleveland assigned to
lead the review, described the case as "a three-legged
stool" that was built on shaky evidence from the start and
that had denied the defense numerous bits of information
that pointed to the possible innocence of the defendants.
Some military and intelligence officials, for instance,
doubted that the sketches actually represented the Turkish
air base or a Jordanian hospital, despite "misleading
testimony" that suggested there was a consensus among
officials about what they depicted, Mr. Morford said.
Had State Department photos of the Jordan site been turned
over to the defense, they would have undermined the
prosecution's argument that one of the sketches depicted a
hospital there, Mr. Morford wrote.
Moreover, Mr. Morford's assessment gave credence to the
newly disclosed testimony of a Tunisian man in Los Angeles
who said that the Las Vegas videotape - purported to
represent a surveillance operation - was an "innocent"
sightseeing memento.
The prosecution, Mr. Morford said, "created a record filled
with misleading inferences.''
Some Congressional officials question why Mr. Morford's
catalogue of missteps focused so squarely on Mr. Convertino
without assessing responsibility in other Justice
Department officials. Mr. Morford said his report "was not
about blame."
With the terrorism charges dropped, Mr. Hannan, Mr.
Koubriti and Mr. Elmardoudi remain in custody, facing a new
trial on document fraud and deportation proceedings.
But law enforcement and Congressional officials who
continue to believe that the Detroit men represented a
terror cell take issue with many of Mr. Morford's key
findings, saying he appeared to present the prosecution's
evidence in the worst light.
Mr. Convertino said: "If there were mistakes, then I
shoulder the responsibility, but this is still a good case.
I believe it, the agents believe it.''
James Thomas, the defense lawyer, said he believed that
someone should be held accountable in the case.
"To the extent these guys have been vindicated, maybe we
should look at people who bang that drum of fear," Mr.
Thomas said. "We as United States citizens were vulnerable
to that fear, and it was played on."
http://www.nytimes.com/2004/10/07/national/07detroit.html?ex=1098162201&ei=1&en=9a9d72587e58015d
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