Moussaoui Case Is Latest Misstep in Prosecutions

The botched handling of witnesses in the sentencing trial of Al Qaeda conspirator Zacarias Moussaoui is the latest in a series of missteps and false starts that have beset the Bush administration’s prosecution of terrorism cases.

The government has seen juries reject high-profile terrorism charges, judges throw out convictions because of mistakes by the prosecution and the FBI suffer the embarrassment of wrongly accusing an Oregon lawyer of participating in the 2004 Madrid train bombings.

“There have been a lot of flubs,” said George Washington University law professor Stephen A. Saltzburg. “I think most observers would say they were underwhelmed by the prosecutions brought so far.”

On several occasions, top administration officials have promised more than they delivered. For example, then-Atty. Gen. John Ashcroft announced in 2002 that Jose Padilla, a Bronx-born Muslim, had been arrested on suspicion of “exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,’ in the United States.”

Padilla was held nearly four years in a military brig without being charged. This year, as his lawyers appealed his case to the Supreme Court, the administration indicted him in Miami on charges of conspiring to aid terrorists abroad. There was no mention of a “dirty bomb.”

In May 2004, the FBI arrested Brandon Mayfield, an Oregon lawyer and Muslim convert, saying that his fingerprint was on a bag containing detonators and explosives linked to the Madrid train bombings that had killed 191 people two months before. The former Army officer was held as a material witness even though officials in Spain considered the fingerprint evidence inconclusive.

Mayfield was freed after almost three weeks in custody and received an apology from the FBI, which blamed the misidentification on a substandard digital image from Spanish authorities.

In other instances, prosecutors took cases to court that proved to be weak:

* A computer science student in Idaho was accused of aiding terrorists when he designed a website that included information on terrorists in Chechnya and Israel. A jury in Boise acquitted Sami Omar Al-Hussayen of the charges in June 2004.

* A Florida college professor was indicted on charges of supporting terrorists by promoting the cause of Palestinian groups. A jury in Tampa acquitted Sami Al-Arian in December.

* Two Detroit men arrested a week after the Sept. 11 attacks were believed to be plotting a terrorist incident, in part based on sketches found in their apartment. A judge overturned the convictions of Karim Koubriti and Abdel-Ilah Elmardoudi after he learned that the prosecutor’s key witness had admitted lying to the FBI, a fact the prosecutor had kept hidden.

David Cole, a Georgetown University law professor who has been critical of such prosecutions, blamed pressure from the top. “The government in the war on terrorism has generally swept broadly and put a high premium on convictions at any cost,” he said. “That puts pressures on prosecutors -- to overcharge, to coach witnesses, to fail to disclose exculpatory evidence.”

But Andrew McBride, a former federal prosecutor in Virginia, said it was unfair to blame prosecutors for the apparent witness tampering in the Moussaoui case.

“You can’t really lay this at the door of the prosecution,” he said. “This is a lawyer at the TSA [Transportation Security Administration] who screwed up. The rule of witnesses is pretty well known. You would think she would know you are not supposed to discuss the earlier testimony with your witnesses.”

In a recent report on its terrorism prosecutions, the Justice Department called Moussaoui’s decision last year to plead guilty to conspiracy charges one of its leading successes.

But U.S. District Judge Leonie M. Brinkema already has questioned whether the French citizen deserves the death penalty; Moussaoui was in jail in Minnesota on a visa violation when hijackers seized four passenger jets and caused almost 3,000 deaths by crashing them into the World Trade Center towers, the Pentagon and a Pennsylvania field. the Supreme Court has said the death penalty should be reserved for murderers and “major participants” in murder plots. Prosecutors are pushing for the death penalty under the theory that Moussaoui could have prevented the terrorist attacks by telling the FBI about the plot.

Terrorism cases have proved to be especially difficult for prosecutors because investigators need to disrupt plots before they come to fruition. That leaves prosecutors to make a decision on whether to bring a thin case to court. By contrast, in drug cases, police and drug agents can track suspects and arrest them when they take possession of large quantities of narcotics.

After the Sept. 11 attacks, officials feared there were terrorist “sleeper cells” throughout the nation, ready to spring into action. Since then, the determined pursuit of Al Qaeda members and sympathizers has turned up relatively few terrorists.

“The good news may be that there are not as many threatening people out there as we once thought,” law professor Saltzburg said.