TERRORISM

Prosecutorial Incompetence

The Bush administration has jeopardized the sentencing of Zacarias Moussaoui, the so-called "20th hijacker," by tampering with witnesses. The federal judge presiding over the case, Leonie M. Brinkema, said yesterday, "[I]n all my years on the bench, I've never seen a more egregious violation of the rule about witnesses." Carla J. Martin, a Transportation Security Administration lawyer, "violated a court order by e-mailing trial transcripts to seven witnesses -- all current and former federal aviation employees -- and coaching them on their upcoming testimony." It's not the first time a key terrorism prosecution has been jeopardized by incompetence. George Washington University law professor Stephen A. Saltzburg noted, "There have been a lot of flubs." David Cole, a professor at the Georgetown Law Center, argues the problem is rooted in administration policy: "The government in the war on terrorism has generally swept broadly and put a high premium on convictions at any cost. That puts pressures on prosecutors — to overcharge, to coach witnesses, to fail to disclose exculpatory evidence." Whatever the cause, the administration's record prosecuting terrorist suspects is abysmal.

THE DETROIT DEBACLE: In 2003, then-Attorney General John Ashcroft was threatened with a contempt of court charge for speaking publicly about a pending terrorism case in Detroit, despite a gag order. U.S. District Judge Gerald Rosen publicly rebuked Ashcroft for his "distressing lack of care" in making the public statements, reminding him of his "unyielding obligation, as the nation's chief prosecutor, to ensure that defendants are accorded a fair trial guaranteed to them under our Constitution." In the same case, federal prosecutors withheld documents that, according to the judge, "should have been turned over" to defense attorneys. A lead prosecutor, Richard Convertino, was removed from the case. Convertino, in turn, accused the Justice Department of not providing him with the appropriate resources and sued Ashcroft under a federal whistle-blower statute. (Convertino's lawsuit alleges the Justice Department “continuously placed perception over reality to the serious detriment of the war on terror.”) Eventually, the convictions of two men, which were trumpeted by the Bush administration as "a landmark case in the war on terrorism," were thrown out of court after the Justice Department "admitted widespread prosecutorial misconduct."

THE MAYFIELD DEBACLE: For two weeks, the government held Brandon Mayfield, a former army lieutenant, "as a material witness in the Madrid bombings case, which killed 191 people and injured about 2,000 others." The FBI initially claimed "his fingerprint matched one found on a plastic bag connected to the deadly terror bombings," but, after checking the print more closely, the FBI admitted it was wrong. The FBI issued "a rare public apology" for its conduct, promising it "would review its practices on fingerprint analyses."

GO DIRECTLY TO JAIL: The AP reported that "[t]he Justice Department is investigating its lawyers' conduct in sending terrorism suspects to jail when there was insufficient evidence to charge them with a crime." The investigation appears to be centered around a case of "eight Egyptian men from Evansville, Ind., who were held for about a week in 2001 on material witness warrants when one of their wives falsely accused them of planning a suicide attack." The Bush administration "has apologized to them and to at least five other people detained under that law."

THE IDAHO DEBACLE: The Justice Department accused a University of Idaho student "of running websites used to recruit terrorists, raise money and spread inflammatory rhetoric." The student, Sami Omar Al-Hussayen, was a volunteer webmaster who promoted the study of Islam. After a seven-week trial, the government "failed to convince a jury that [the student] had used his technical expertise to support terrorist activity," and he was acquitted of all terrorism-related charges. Al-Hussayen spent nearly a year-and-a-half in jail.

THE YEE DABACLE: The Bush administration branded Muslim chaplain Captain James Yee a spy, placed him in solitary confinement for 76 days, and threatened to execute him. When it became evident the case against Yee wasn't there, he was maligned with charges of adultery and downloading Internet pornography. Eventually, those charges were thrown out as well. The Army has now agreed to grant Yee an honorable discharge.

OH BROTHER: Two men from Albany were accused of supporting terrorism and detained without bail "based on an address book that prosecutors said was found in an Iraqi terrorist training camp." The government initially claimed the book referred to one of the men as "the commander" in Arabic. Prosecutors later admitted "that translation was an error and the word is 'brother' in Kurdish." The judge ordered both men released an "blasted the government's case by saying there is no evidence they have any links to terrorists." The trial is still pending.