[lbo-talk] prosecution in the Bush era

Doug Henwood dhenwood at panix.com
Tue Jul 29 16:08:52 PDT 2003


Washington Post - July 29, 2003

No Choice but Guilty By Michael Powell

First of two articles

LACKAWANNA, N.Y. -- Even now, after the arrests and the anger and the world media spotlight, the mystery for neighbors in this old steel town remains this: Why would six of their young men so readily agree to plead guilty to terror charges, accepting long prison terms far from home?

"These knuckleheads betrayed our trust, and we're disgusted with their attendance at the camps in Afghanistan," Mohammed Albanna, 52, a leader in the Yemeni community here, said of the six men who have admitted to attending an al Qaeda training camp two years ago. "But the punishment doesn't fit the crime, or the government's rhetoric. It's ridiculous."

But defense attorneys say the answer is straightforward: The federal government implicitly threatened to toss the defendants into a secret military prison without trial, where they could languish indefinitely without access to courts or lawyers.

That prospect terrified the men. They accepted prison terms of 61/2 to 9 years.

"We had to worry about the defendants being whisked out of the courtroom and declared enemy combatants if the case started going well for us," said attorney Patrick J. Brown, who defended one of the accused. "So we just ran up the white flag and folded. Most of us wish we'd never been associated with this case."

The Lackawanna case illustrates how the post-Sept. 11, 2001, legal landscape tilts heavily toward the prosecution, government critics contend. Future defendants in terror cases could face the same choice: Plead guilty or face the possibility of indefinite imprisonment or even the death penalty. That troubles defense attorneys and some legal scholars, not least because prosecutors never offered evidence that the Lackawanna defendants intended to commit an act of terrorism.

"The defendants believed that if they didn't plead guilty, they'd end up in a black hole forever," said Neal R. Sonnett, chairman of the American Bar Association's Task Force on Treatment of Enemy Combatants. "There's little difference between beating someone over the head and making a threat like that." For Government, Wide Latitude Federal prosecutors acknowledge they wield a formidable legal armament. Because of the USA Patriot Act and the 1996 Anti-Terrorism and Effective Death Penalty Act, and as a result of court decisions and presidential orders, federal agents have wider latitude to conduct searches, tap phones, read e-mails and examine finances. The government has reactivated the military tribunals for the first time since World War II.

No previous president has asserted the right to designate American-born defendants as enemy combatants, Sonnett said. President Bush has named two, Jose Padilla and Yaser Esam Hamdi, both of whom are being held in a military brig in South Carolina.

U.S. Attorney Michael Battle, whose region encompasses Lackawanna, said his office never explicitly threatened to invoke enemy combatant status but that all sides knew the government held that hammer. "I don't mean to sound cavalier, but the war on terror has tilted the whole [legal] landscape," he said. "We are trying to use the full arsenal of our powers.

"I'm not saying the ends justify the means," he continued, "but you have to remember that we're protecting the rights of those who are being targeted by terror as well as the rights of the accused."

The "Lackawanna Six" case embodied the nation's worst fears about the reach of Islamic terror networks. Last Sept. 13, FBI agents descended on this decaying steel town by the shore of Lake Erie and arrested six men. It was the third time U.S. citizens had been charged with aiding -- in the form of "material support" -- the al Qaeda terrorist network. The scant information revealed by prosecutors put some flesh on accusations that the defendants belonged to a terrorist "sleeper cell." The young men traveled to Afghanistan in the spring of 2001. They watched radical propaganda tapes, learned to fire automatic rifles and set off explosions at a military camp run by al Qaeda. Several sipped tea and spoke of jihad with Osama bin Laden.

Five of the six men were born and raised in Lackawanna. They attended public schools, captained soccer teams and had wives and children.

The FBI agents drove their cars to the Yemen Soccer Field bordering the Lackawanna rail tracks. Guns drawn, they arrested the six men -- Sahim Alwan, 30; Yahya Goba, 26; Yasein Taher, 25; Faysal Galab, 27; Shafal Mosed, 25; and Mukhtar al-Bakri, 23 -- and carted boxes of tapes, computers and books out of their homes.

"One by one," Bush said after the arrests, "we're hunting the killers down."

Such statements resonated deeply, coming a year and two days after the attacks on the World Trade Center and the Pentagon. "Terrorism and support of terrorists is not confined to large cities," Deputy Attorney General Larry D. Thompson said. "It lurks in small towns and rural areas."

Many assumed the government had revealed but slivers of its evidence. The Justice Department later disclosed that the men had spent large sums of money at a casino, possessed tapes on suicide attacks and had sent coded e-mails that sounded ominous.

The arrests came as a body blow to those in Lackawanna's First Ward, across the railroad tracks and within sight of the vast steel mills. Once, Bethlehem Steel built rows of wood houses with identical porches along Steelawanna Street for its workers. Its mills employed 24,000, and thousands of Yemenis journeyed here in search of work. But the mills closed in the 1980s.

Most residents piece together a living from two or three jobs. Many young men pass time playing soccer, drinking beer and pulling slots at the Niagara Falls casinos, and cruising the streets in cars with the hip-hop thumping loud.

"We heard about the arrests, and we were like, 'No, impossible,' " said Mosed Alajji, 29, who works at a local grocery store. "They were hang-out guys, wondering what movie to watch on weekends. To be true, man, they couldn't even speak Arabic."

A Reality In Between

The reality appears to fall between such disbelief and talk of sleeper cells. Two men who were veterans of the war in Bosnia and alleged recruiters for al Qaeda had passed through Lackawanna: Juma al-Dosari and Kamal Derwish. In early 2001, al-Dosari, a charismatic preacher based in Indiana, spoke at the Lackawanna mosque, housed in an abandoned Ukrainian Orthodox church. His militant tone troubled leaders enough that they did not invite him back. Derwish, husky, bearded and austere, invited kids to his apartment for pizza. But he annoyed adults with his rigid insistence on separating the sexes.

The six young men found themselves drawn to al-Dosari and Derwish.

"Derwish would tell them: 'You don't even know the prophets, you won't make it past Judgment Day,' " said Rodney O. Personius, a former federal prosecutor who represented one of the six defendants. "Juma said that Mecca wouldn't do, that they needed jihad training if they wanted to save their souls."

In April and May 2001, the six men journeyed to Pakistan, ostensibly to train in the religious schools known as madrassas. Their trip was no secret -- their families wished them well with their pilgrimage. But the men instead journeyed to a fundamentalist guest house in Kandahar, Afghanistan, and then to al Farooq, a training camp for beginning jihadists. That was before the Sept. 11 attacks, but after the attacks on U.S. embassies in Tanzania and Kenya, and on the USS Cole in Yemen.

The men were not very fierce jihadists. Alwan cried over a sprained ankle and hopped a pickup truck out of camp after a week. Others complained of terrible food. But several completed training, and one carried home a tape on suicide attacks. When the men arrived in the United States in June 2001, an FBI agent interviewed Alwan. He insisted he had received no terror training and privately advised his friends to remain quiet.

"These six guys wouldn't hurt a flea, but they were fools to go and fools not to be honest. After the September 11th attacks, it became a disaster," said Abdulsalam Noman, who coached five of the six men in soccer, including his nephew, Taher. "I told my nephew, 'Take a plea because no jury is going to sympathize with you now.' "

Several of Buffalo's better-known defense attorneys signed on to represent the Lackawanna Six. The lawyers didn't view their clients as innocent but planned to poke enough holes in the prosecution case to draw a better deal. They found that allegations that their clients spent large sums of money arose from a casino credit card jointly held by an extended family. And there was no evidence that the men had spoken of or planned an attack.

"We'd been able to convince the press and the public that there wasn't all that much evidence," said John J. Molloy, who represented al-Bakri. "We had enough to make the government work for its pound of flesh."

But they did not reckon on the new legal world. The defense lawyers asked to question Derwish and al-Dosari, in hopes of proving their clients had been duped into traveling to Afghanistan. But in November 2002, a U.S. Predator drone fired a missile at a car in Yemen, killing four men, including Derwish.

"He's the alleged recruiter, but now he's been incinerated by the government," said defense attorney Brown.

Al-Dosari is widely reported to be held at the U.S. military base in Guantanamo Bay, Cuba. But the Justice Department does not acknowledge that. "Juma?" U.S. Attorney Battle asked last week. "I don't know anyone named Juma."

Battle said defense lawyers came to realize two facts of life. Attorney General John D. Ashcroft would not hesitate to veto any deals. And the Defense Department stood ready to ask Bush to designate the defendants as enemy combatants.

"You had a new player on the block [the Defense Department], and they had a hammer and an interest," Battle said. "These are learned defense counsels, and they looked at that landscape and realized that, you know, they could have a problem."

The Push From Washington

Government officials acknowledge that if the Justice Department loses its bid to prevent Zacarias Moussaoui from questioning an al Qaeda leader as part of his defense, they are likely to turn him over to a military tribunal. Moussaoui is the only person charged in the United States with conspiracy in the Sept. 11 attacks. Iyman Faris, an Ohio truck driver who pleaded guilty May 1 to plotting with al Qaeda to bring down the Brooklyn Bridge and launch a simultaneous attack on Washington, cooperated with the FBI because he sought to avoid being declared an enemy combatant, officials have said.

Defense attorneys describe working blind, never knowing how far Washington would push. "They're bandying about the death penalty for these bozos?" Molloy said. "That's ridiculous; these kids were idiots, but not traitors."

In the end, the government took the enemy combatant designation off the table, and the defendants pleaded guilty. "Alwan was quite firm that he screwed up and he needs to make atonement," said James Harrington, Alwan's attorney.

Other defendants, such as Taher, took longer to plead. His family insisted the government had intimidated him. "He's got a 3-year-old child and a wife," Personius said. "I told him to pray to Allah for a sign."

All this has complicated the battle for the hearts and minds of the Yemeni community. Many in Lackawanna's First Ward speak with anger about what they call government bullying. They see young men who face long jail terms. They see Albanna, an outspoken leader and owner of a cigarette and candy distributorship, arrested and charged with operating an illegal business for helping immigrants wire large amounts of money back to relatives in Yemen. Prosecutors no longer suggest he has any connection to terrorism.

Albanna, who is awaiting trial, stood at the Yemen Soccer Field on a balmy evening recently and watched the young men hurtle back and forth. He came here as a youngster to work in the steel mills, studied and built a business.

"Listen, I chose to come here," he said. "The U.S.A. stands for a Constitution and rights. It's the best country in the world. But people here are intimidated and quiet. This is beginning to feel for us like a bad dream."

Tomorrow: Jose Padilla, enemy combatant and U.S. citizen.



More information about the lbo-talk mailing list