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May 6, 2006
A tale of two terror trials
By Abdus Sattar Ghazali
On May 1, 2006, a federal judge in Florida sentenced the former Florida Professor Dr. Sami Al-Arian to another year and a half in prison before he will be deported in his terrorism conspiracy case in which an anonymous jury had declined a guilty verdict. The same day in another terror trial, a Federal Court in California released Umer Hayat of Lodi, whose case was declared a mistrial as the jury could not reach a guilty verdict.
Dr. Sami Al-Arian, 47, despite the jury failing, signed a plea agreement April 14 in which he admitted providing support to members of the Palestinian Islamic Jihad, a State Department-designated terrorist group responsible for hundreds of deaths in Israel and the Palestinian territories. His family said he took the deal to get out of jail and end their suffering.
When at the plea agreement hearing, U.S. Magistrate Thomas B. McCoun said, "... if you're satisfied you're guilty or you believe it's in your best interest to plead guilty ... let me know that," al-Arian replied, "I believe it's in my best interest to enter a plea."
But any hope Mr. Al-Arian might have had of being deported quickly evaporated when Judge James S. Moody Jr. of Federal District Court sentenced Mr. Al-Arian to the maximum allowed under the sentencing guidelines, more than even the prosecution requested, and chided him for acts even the jury had rejected as Mr. Al-Arian's.
On December 6, 2005, a federal jury acquitted Al-Arian of conspiring to aid a Palestinian group in killing Israelis through suicide bombings. Al-Arian was found not guilty on eight of 17 counts, including conspiracy to maim or murder. Jurors deadlocked on the rest of the charges, including ones that he aided terrorists.
The Tampa jury deliberated 13 days before rejecting arguments laid out over five months by prosecutors that the former University of South Florida computer engineer and three co-defendants conspired with leaders of Palestinian Islamic Jihad -- which the United States has designated a terrorist group -- providing it money, strategy and advice. The accusations were based on 20,000 hours of phone conversations and hundreds of faxes secretly monitored beginning in 1993.
At the time of Arian's indictment in 2003, John Ashcroft, then US Attorney General, said Al-Arian was in fact the US leader of Palestinian Islamic Jihad. The group, responsible for hundreds of deaths in suicide bombings in Israel, was designated a terrorist organization by the State Department in 1995. The trial of Al-Arian, that reportedly cost about 30 million dollars to taxpayers, was billed as a showcase of how beefed-up investigative powers authorized under the Patriot Act were helping protect the nation from a repeat of the 9/11 attacks.
The failure to convict Al-Arian was a stinging rebuke for the federal government. His case was once hailed by authorities as a triumph of the anti-terrorism Patriot Act, which allowed secret wiretaps and other information gathered by intelligence agents to be used in criminal prosecutions. The final outcome of the this three-year long trial was summed up by the Washington Post: “Stung by the defeat in the high- profile case, prosecutors pondered whether to retry him on the remaining charges, including three conspiracy counts, or deport him.”
Lodi Trial
In another high profile terror trial, Umar Hayat of Lodi, CA - charged with making a false statement to FBI agents - was released, on May 1, 2006, on bond to home arrest after his 10-week trial ended with a deadlocked jury and a mistrial. On April 25, the jury of eight women and four men deliberated nearly eight days before saying it could not reach a verdict and the judge announced a mistrial.
On the same day, a separate jury found Hayat's 23-year-old son, Hamid Hayat, guilty of providing material support to terrorists by undergoing firearms training in Pakistan and returning to Lodi 11 months ago ready to wage violent jihad against his fellow U.S. citizens. However, two days later, a juror disavowed her verdict saying that she was coerced into giving a guilty verdict.
In a seven-page affidavit, the juror, Arcelia Lopez, stated: "I never once throughout the deliberation process and the reading of the verdict believed Hamid Hayat to be guilty. . .I never believed that Hamid Hayat was guilty. My fellow jurors knew it and as a result of changing my vote a unanimous verdict was reached. I deeply regret my decision."
She went on to say: "Joseph Cote, as the foreman, told the jury that we had to reach a verdict and he refused to accept my position. He personally attacked me repeatedly as someone who couldn't process the information and who just couldn't see that he was guilty because he thought I didn't have the mental capacity to understand."
Both Hamid and Umer Hayat were detained, June last year, along with two Pakistani religious leaders in what authorities suggested was part of a terrorist movement in Lodi, 35 miles south of the California state capital. The two imams and one man's son were deported for immigration violations, however, and the Hayats were the only people criminally charged in the probe.
The Lodi case was built mainly on the witness of a FBI mole, Naseem Khan who befriended the Hayat family after he went to Lodi specifically to infiltrate Lodi's Muslim community. He was paid $ 250,000 for his nearly three years job. He was hired after he told agents that he had seen Ayman al-Zawahiri, Osama Bin Laden’s top lieutenant in 1998 or 1999 at a mosque in Lodi, the farming town just south of Sacramento where the men on trial lived. However, terrorism experts say the bin Laden lieutenant, Ayman al-Zawahiri, an Egyptian, last visited America in 1995.
Lodi trial is one of the show case trials that was heralded, during the debate over the renewal of the USA Patriot Act, as an important milestone in the fight against terrorism. "I was very impressed by the use of intelligence and the follow-up," President Bush said at the time of the high profile arrest of the Hayats. "And that's what the American people need to know, that when we find any hint about any possible wrongdoing or a possible cell, that we'll follow up," the president added.
For prosecution to have non-guilty jury verdict is not uncommon due to lack of evidence or any other reason but for high profile ‘semi-political’ terror trials where evidence is sometimes fabricated or gathered through unusual methods, including incitement and coersion, a non-guilty jury verdict gains significance.
The cloak of secrecy
Here let us digress to look at the cloak of secrecy at the terror trials. The foundation of America's legal system is transparency. If one side makes an argument to a judge, the other side gets to be there to disagree. However, the emerging national trend goes against this. Although a defendant has a right to challenge any search and seizure, which would include wiretap evidence, challenging the constitutionality of those wiretaps is difficult without knowing what evidence was used to secure them. Federal prosecutors just simply say, “You are not entitled to know. We will give the information to the judge, and the judge will decide.” (Mohammad Salah’s case)
The government often requires defense lawyers to obtain a security clearance in order to view key evidence against their clients. Even if attorneys get the security clearance, they are not allowed to discuss classified evidence with their clients. Other members of the defense team can see classified evidence only if the judge approves. And prosecutors also are allowed to file ex-parte evidence that is reviewed only by the judge -- not defense attorneys.
In Al-Arian's case, the government also classified "hundreds of thousands of hours" of wiretapped conversations and initially refused to release them to Al-Arian, even though he had been a party to them. The judge eventually declassified the information, allowing it to be seen only by the defense attorneys.
The Bush administration's judicial “war on terrorism” is cloaked in controversy. Legal scholars find the Department of Justice inflates its prosecution tally by classifying immigration and other low-level offences as terrorism. A Washington Post investigation reveals that most DOJ homeland-security cases have no terrorist connections at all. Prosecutions are littered with flawed investigations, false accusations, ineptitude and malfeasance. Here are few examples:
Holy Land Foundation -- The feds shuttered this Texas-based Islamic charity, accused of raising money for Hamas. Three foundation officials were deemed security risks and incarcerated indefinitely, but they were released because the government failed to show they were dangerous. They await trial. A Jordanian fundraiser, too, was arrested, but only on an immigration charge - overstaying his student visa.
Mohammed Salah -- A Palestinian-American living in Chicago, he is accused of being a top Hamas operative, funneling vast sums of money to the organization. He was jailed in Israel after confessing to terrorist acts. Prosecutors want to use that confession against him here. During a recent hearing, a key witness, West Bank lawyer Jonathan Kuttab, ranted that torture was employed to make Salah sing.
Sami Al-Hussayen -- This University of Idaho graduate student, a Saudi, was acquitted of terrorism charges including raising money for Palestinian militants and ''building websites to recruit jihad terrorists.'' In June 2004, a jury of four men and eight women returned their verdicts after seven days of deliberation following a trial lasting seven weeks. Jurors could not reach verdicts on three more false statement counts and five additional visa fraud counts, and a mistrial was declared on those charges. Mortified prosecutors got off the hook when al-Hussayen agreed to deportation rather than challenge minor immigration violations. He left the US in July 2004.
Ahmed Omar Abu Ali – On March 29, 2006. Abu Ali, Saudi-American, was sentenced in a US federal court in Virginia to 30 years’ imprisonment but the jury was not allowed to hear evidence supporting his claim that he was tortured into confessing while he was held for one and a half years without charge or trial in Saudi Arabia (infamous for the human rights violations). Amnesty International expressed serious concern about the flawed trial that the case may have set a worrying precedent on the admissibility of torture evidence in US courts.
Richard G. Convertino: Richard G. Convertino, the one-time federal prosecutor who won two convictions in the nation's first terror trial after September 11, was formally indicted on March 30, 2006, on charges that he built that case on perjury and deception. The four-count indictment alleges Convertino and Harry Raymond Smith III, a State Department security officer in Amman, Jordan, concealed photographs and lied under oath about a hospital in that country that was supposedly a terrorist target. The pictures could have helped the defense attorneys, authorities say. The indictment marks another low point for the government in the disastrous Detroit sleeper cell case in which a jury convicted in June 2003 two of the men of terror-related charges and another man of document fraud. The fourth man was acquitted.
Reverting to the high profile trials, although the prosecution failed to get guilty verdict by the jury but such headlines grabbing high profile arrests and trials are producing the desired results: intimidation of the Muslim community, defaming their faith (which is linked to acts of terrorism) and straining its financial resources because million of dollars are paid by the community in defense expenses. No body more bluntly expresses this attitude than Dr. Hatem Bazian, Professor at the Near East and Ethnic Studies Department, University of California, Berkeley, who believes that similar to the COINTELPRO against the African Americans during the 1960s, the Arab and Muslim are currently facing a new FBI counter intelligence program.
COINTELPRO is the acronym for a series of FBI counterintelligence programs designed to neutralize political dissidents. In the 1960s and 1970s - the program was directed against the civil rights movements, and especially against the community leadership of African Americans, Latinos and Native Americans. In the 1980s there was a program against Central American solidarity groups. Drawing on Brian Glick’s book - War At Home – Dr. Bazian pointed out that four methods were employed by the FBI during the height of the Cointelpro program during 1960s and the same methods are being employed now which are: 1). Infiltration. 2). Psychological warfare from outside. 3). Harassment through the legal system. 4). Extra legal force and violence.
The logical consequence of this campaign is reflected in the opinion polls. According to the Washington Post-ABC News poll of March 2006, a growing proportion of Americans are expressing unfavorable views of Islam, and a majority now say that Muslims are disproportionately prone to violence. The proportion of Americans who believe that Islam helps to stoke violence against non-Muslims has more than doubled since the 9/11 attacks, from 14 percent in January 2002 to 33 percent today, the poll indicated. In a chain reaction to this negative perception, there are now more hate crimes against the Muslim community, hate mails, attacks on Mosques/Islamic centers and in many cases rejection of plans to build new mosques/Islamic centers or expand the existing one. In the most recent example, after facing anti-Muslim sentiment at a public hearing in March 2006, the West Penn Cultural Center, a Turkish organization, dropped its plan to turn a vacant school in South Park, Pennsylvania into a cultural center. One could multiply examples to prove the point.
In the final analysis, there cannot be two opinions on the priority of the security and safety of the nation but one wonders if such high profile arrests and trials made the nation more safe or they are being used to maintain a state of fear among the masses and usurp their civil rights in the name of national security.
Abdus Sattar Ghazali is Executive Editor of the online magazine American Muslim Perspective www.amperspective.com
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