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Washington Post - June 5, 2005
Trial to reveal reach of U.S. surveillance
Wiretaps to be used against 4 terrorism suspects
By John Mintz
For a decade, FBI agents covertly monitored every telephone call and fax sent and received by Florida university professor Sami al-Arian as he communicated with alleged top leaders of the Palestinian Islamic Jihad terrorist group about its suicide bombings of Israelis, shaky finances and high-level turf struggles.
Starting tomorrow, many of those 20,000 hours of phone calls and hundreds of faxes will be revealed in a federal courtroom in Tampa, where al-Arian and three other alleged members of the terrorist group will be tried on charges of conspiracy to commit murder through suicide attacks in Israel and the Palestinian territories.
The trial, expected to last at least six months, will provide a rare view of what the government contends are the clandestine operations of a terrorist group. It is the first case in which vast amounts of communications monitored under the Foreign Intelligence Surveillance Act (FISA) will make up the bulk of the evidence in a criminal prosecution of alleged terrorists -- demonstrating the enormous power the government now wields under that counterterrorism law.
The wiretaps, approved in 1993 through 2003 on as many as 10 phones by a secret FISA court, were originally intended for use only by FBI agents conducting open-ended "intelligence" probes, and not for use in criminal trials. But after the Sept. 11, 2001, attacks, the enactment of the USA Patriot Act and a ruling by the supersecret FISA court of appeals allowed much greater use of intelligence material in investigations such as this one.
Many civil liberties experts express grave concern about U.S. officials' introduction into criminal court of years of wiretaps approved by FISA judges under a lower standard of proof than that demanded by criminal-court judges. But U.S. District Judge James Moody has rejected defense attorneys' arguments that the information should not be heard in court.
Using FISA wiretaps in court is "a serious problem" that puts defendants at a disadvantage, said David Cole, a Georgetown University expert on the law related to terrorism. "Unlike with criminal wiretaps, FISA doesn't give defendants any meaningful chance to challenge the validity of the tap."
U.S. officials say al-Arian and three associates who worked with him at a cluster of institutes affiliated with the University of South Florida (USF) in Tampa were secretly top leaders of the Palestinian Islamic Jihad, sharing duties with other leaders in Syria.
Attorneys for al-Arian, a USF professor of computer engineering until he was fired in 2003, and the other defendants contend that their clients do not condone the terrorist group's violent tactics, and that U.S. prosecutors are criminalizing their opposition to Israeli policies. The U.S. government declared the Palestinian Islamic Jihad a terrorist organization in 1995, making any association with it illegal. Defense attorneys have said that any promotion of the organization by al-Arian and others before then was protected political speech.
"The government has a major leap trying to connect people talking on the phone in Tampa, and doing fundraising, with bombs exploding in Israel 6,600 miles away," said lawyer Stephen Bernstein, who represents defendant Sameeh Taha Hammoudeh, a former USF student. "The government is trying to say, 'If you have an interest in a subject, and if you talk about it with other people, then you must have been involved in it.' "
Moody has also ruled that he will limit defense attorneys' efforts to bring up during the trial the history of the Israeli-Palestinian conflict in their bid to dramatize the Palestinians' plight and their right to resist what they see as Israeli oppression. The defense asserts that the U.S. government has embraced the Israeli government's intelligence findings on the Palestinian Islamic Jihad and that the group represents no threat to the United States.
Lawyer Kevin Beck, who represents defendant Hatim Naji Fariz, manager of an Illinois-based Muslim charity, said there will be clashes in court over "the context and meaning of some conversations," including some in which he said officials unfairly assert the defendants spoke in code about the terrorist group. The prosecutors' case "is built on assumption built on assumption built on assumption, with some hearsay," he said.
The al-Arian case has been the subject of intense controversy for a decade. It is a kind of proxy battle for the Middle East conflict, and it has stirred emotions as raw as those in Israel and the Palestinian territories…..
U.S. officials were allowed to use the FISA intercepts in the case because the USA Patriot Act of 2001 and a FISA appeals court decision in 2003 had torn down the long-unbreachable wall between FBI criminal investigators and intelligence personnel. The legal wall had previously prevented FBI intelligence agents from sharing any information about the FISA taps with agents pursuing criminal cases.
Conviction on the main charges -- including conspiracy to commit racketeering through the murder of Israelis, money laundering and other crimes -- could bring life sentences for al-Arian, Hammoudeh, Fariz and a fourth defendant, Chicago dry cleaner Ghassan Zayed Ballut.
All four also are accused of extortion as part of that conspiracy, on the theory that the Palestinian Islamic Jihad threatens Israelis with death if they do not leave Israel. Andrew McCarthy, a former federal prosecutor, said he believes that is an unprecedented use of the extortion law, but he added that it appears to be legally sound.
McCarthy said the case most resembles a classic Mafia trial, in which prosecutors charge that simply by being in, say, the Gambino family, all the defendants conspired to commit the array of crimes that each committed individually. "You've got to convince the jury the entity is evil," he said.
Prosecutors said they intend to place on the witness stand dozens of Israeli survivors of Palestinian Islamic Jihad attacks. To illustrate the effects of an attack, officials may also play videotapes they made of a bus being blown up in Florida.
Five of the nine indicted defendants are overseas and not in custody and will not be tried. They are Shallah, who still runs the organization from Syria; Abd al Aziz Awda, its original spiritual leader; al-Arian's brother-in-law, Mazen al-Najjar; leading Muslim scholar Bashir Nafi; and Muhammed Tasir al-Khatib, the group's alleged treasurer.
In the early- to mid-1990s, al-Arian, Shallah, al-Najjar and Nafi were all at the WISE think tank in Florida, and U.S. officials said they were four of the 10 members of the terrorist group's worldwide Shura Council, or top leadership body……
http://www.washingtonpost.com/wp-dyn/content/article/2005/06/04/AR2005060401319.html
New York Times - June 5, 2005
From Advocacy to Terrorism, a Line Blurs
By Eric Lichtblau
TAMPA, Fla., June 2 - Three Israelis had just been killed in a suicide bombing in the Gaza Strip one November day in 1994 when Sami Al-Arian, then a computer engineering professor and Muslim leader here at the University of South Florida, faxed a note to an associate.
The Kuwaiti-born professor conveyed his pride in the attack, according to the federal authorities who were monitoring his communications, and he asked that God bless the Palestinian jihad movement and "accept its martyrs." He closed by urging members of the resistance to "be cautious and alert," the authorities said.
An impassioned advocate for Palestinian independence, Mr. Al-Arian never made any secret of his disdain for the Israeli occupation. But whether his work crossed the line from outspoken advocacy to terrorism is now a central question as he and three co-defendants go on trial in federal court in Tampa on Monday on terrorism and racketeering charges.
The case, a decade in the making, represents one of the government's most significant prosecutions since the attacks of Sept. 11, 2001. And it has served as a flashpoint for debates over the limits of academic freedom, the role of American Muslims in supporting the Palestinian intifada, the government's expanded powers under the law known as the USA Patriot Act, and its strategy in terror investigations before and after the Sept. 11 attacks.
"This case has drawn such intense scrutiny partly because Sami has been so outspoken," said David Cole, a Georgetown University law professor who represented Mr. Al-Arian's brother-in-law in an earlier deportation case that also gained wide exposure. "The government has built a very broad conspiracy case, and the question is whether this will be a trial of Sami Al-Arian and what he actually did or didn't do over the years, or a trial of Palestinian Islamic Jihad itself and guilt by association."
Prosecutors charge that Mr. Al-Arian was, in fact, a terrorist. They maintain that he not only spoke out against the Israelis, but that he also helped coordinate attacks against them for many years and funneled money and strategic advice from central Florida as a clandestine American leader of the Palestinian Islamic Jihad, a group designated by the United States as a terrorist organization in 1995.
His many supporters, however, say they regard him as a political martyr who is being wrongly prosecuted for his strong beliefs and is the victim of a campaign of years of government harassment.
"If, God forbid, he is convicted, I will never believe in the American justice system again - go and bury it," said Ziad Taha, a friend of Mr. Al-Arian's who runs the mosque in Tampa where he was once a leader. "It's all lies by the government."
Supporters question why, if Mr. Al-Arian is as dangerous as federal authorities make him out to be, they did not lock him up until 2003 after wiretapping him for years and watching him meet with senior Republicans and Democrats. Mr. Al-Arian campaigned for President Bush in 2000, was photographed with him at a campaign stop, and took part in a White House briefing with Karl Rove in 2001, one of many political contacts that his defense lawyers indicate they may raise as evidence of his solid credentials.
The case, which became a major issue in last year's Senate campaign in Florida, has left divided camps of friends and foes from Tampa to Washington, with even some one-time supporters of Mr. Al-Arian now questioning his activities. In February 2003, John Ashcroft, who was then attorney general, personally announced the indictment of Mr. Al-Arian, identifying him as the North American leader of Palestinian Islamic Jihad. Mr. Ashcroft said the group was responsible for the murders of many dozens of people, and he pointed to the prosecution of Mr. Al-Arian as a prime example of the government's efforts to "choke off terrorist resources and financing."
Justice Department officials credit changes under the Patriot Act that allowed intelligence agents and criminal prosecutors to share information more easily for bringing the case to prosecution. Although the F.B.I. had been monitoring Mr. Al-Arian since the early 1990's as part of a foreign intelligence investigation, officials said the results were slow to reach prosecutors because of legal impediments and turf battles….
Preparations for the trial speak to its significance. The government has collected more than 20,000 hours of taped phone conversations through wiretaps. Its witness lists number in the hundreds, including many bombing victims and relatives being flown from Israel to testify. The trial is expected to last at least six months, and courthouse officials have stepped up security to head off possible disruptions in a case that has routinely drawn demonstrations from local Muslims over Mr. Al-Arian's treatment.
"We're hopeful that if we get a fair shake, if a jury is willing to presume his innocence, then we have a very good chance," said William Moffitt, a prominent Washington lawyer who is defending Mr. Al-Arian and who sought unsuccessfully to have the case moved out of Tampa because of the extensive local publicity. "The concern is whether or not we can in fact get a fair shake."
Indeed, Mr. Al-Arian has been such a fixture in the Florida news that "more people in Tampa probably know Sami's name than the mayor's," said Ahmed Bedier, who runs the Tampa branch of the Council on American-Islamic Relations. "Unfortunately," Mr. Bedier added, "it's largely a very negative perception, and the whole case has brought a lot of unwanted scrutiny and unwanted labels on many Muslims in the area."….
http://www.nytimes.com/2005/06/05/national/nationalspecial3/05terror.html
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