A Flawed Terrorist Yardstick

In the weeks after the Sept. 11 attacks, Ali Alubeidy was in the cross hairs of the Justice Department, singled out as a potential terrorist by no less than U.S. Atty. Gen. John Ashcroft.

In fact, he was guilty -- of paying off a corrupt bureaucrat to get a commercial driver’s license, including a permit to transport hazardous materials. His sentence: three years’ probation.

But the terrorism case against him never got off the ground. Prosecutors soon realized he was not a terrorist or involved in any terrorist organization, and even said so publicly.

To the Justice Department, however, Alubeidy, and a group of 19 other Middle Eastern men caught up in the driver’s license scam, still count. They are included on a list of more than 280 cases that the department cites as evidence that it is winning the war on terrorism.

The growing list has been regularly highlighted by Ashcroft and other Justice Department officials in speeches and congressional testimony, and even by President Bush. In an address to federal law enforcement officials on the eve of the anniversary of the Sept. 11 attacks, Bush referred to the “more than 260 suspected terrorists” that the government has hauled to court.

In October, testifying before the Senate Judiciary Committee, Christopher Wray, the Justice Department’s criminal division chief, cited the growing number of charges resulting from terrorism probes -- which then stood at 284 defendants -- as evidence that the department has “enjoyed key successes” in the anti-terrorism war.

Last month, in a speech before a Justice Department liaison group for federal attorneys, Ashcroft cited terrorism-related criminal charges against 286 people, declaring “we have been successful.”

But a Times review of a sampling of the cases behind the numbers, based in part on internal Justice documents obtained through the Freedom of Information Act, paints a more ambiguous picture.

Although the report card largely has been used as a public-relations tool, courts are starting to weigh in on the substantive aspects of how the department classifies and treats perceived terrorists. Last week, a federal appeals court in New York rebuked Bush’s decision in May 2002 to declare Brooklyn-born gang member Jose Padilla an “enemy combatant,” and ordered that the government either charge him with a crime or release him.

The department declined to provide a complete accounting of the terrorism-related prosecutions that Ashcroft and others cite. A department spokesman, Bryan Sierra, said officials do not maintain a single roster of cases, and that the figure is compiled from many different sources.

The Times’ request for government records on the cases turned up a highly redacted accounting covering only about half the number that Ashcroft trumpets. Some of those cases were on a list that the department produced in the months after the Sept. 11 attacks in response to a lawsuit by civil liberties groups.

Sierra said the department has taken pains to be clear that the cases mentioned derive from terrorism investigations, and don’t necessarily involve terrorists or people convicted of terrorism-related crimes. Publicizing the names “would be prejudicial to those people whose cases do not rise” to the level of terrorism, he said, adding that public information on the cases is available through the courts and individual department news releases.

In his speeches and testimony, Ashcroft has homed in on the most notorious cases, including that of Richard Reid, who was convicted of trying to blow up a Paris-to-Miami flight with explosive-packed shoes in December 2001, and members of suspected terrorist cells from Buffalo, N.Y., to Portland, Ore., where defendants have been sentenced to lengthy prison terms for providing material support to Al Qaeda.

But the list obtained by The Times also includes two New Jersey men, operators of small grocery stores, who were convicted of accepting hundreds of boxes of stolen breakfast cereal, in a crime that occurred 16 months before the terrorist hijackings.

Also included is a Somali who was convicted in federal district court in Boston of operating an unlicensed money-transfer business, in which the judge rebuked prosecutors for trying to have him sentenced as a terrorist.

The Bush administration subsequently removed the Somali man’s name from a list of suspected terrorism financiers, although he and a partner remain on the Justice Department’s list of terrorism-related prosecutions.

Justice officials have said gauging the number of people who have been prosecuted as a result of terrorism-related investigations is a useful tool in analyzing the department’s performance and informing the public, regardless of whether they turn out to be terrorists.

But critics say the approach misleads the public about the kind of threat that is being extinguished. Their suspicions were further fueled by a Syracuse University study this month showing that the median sentence for defendants in international terrorism cases won by the department is two weeks.

“The masses of Americans, they probably think, if Bush says they are suspected terrorists, they probably are. They are not going to question that,” says Lee Markovitz, a Pittsburgh attorney who represented Alubeidy, the man put on probation for paying a bribe to get a driver’s license.

“It’s easy to be a suspected terrorist,” Markovitz adds.

For the defendants, the label can be hard to shake, however, and the consequences painful and sometimes devastating.

Alubeidy, 36, and a friend from Iraq operated a used-car sale and repair business in Pittsburgh. Shortly after their names surfaced in the local media in connection with the Sept. 11 investigation, their garage was destroyed by a fire.

At about the same time, a neighbor claimed that Alubeidy stole her cable television signal, and he spent a night in jail. His attorney views the detention as an act of bigotry, triggered by the terrorism-related publicity. Alubeidy was threatened with deportation, and the possibility of leaving behind his American wife and infant child, and he still gets visits from the FBI inquiring about his activities.

The FBI also investigated the garage fire as a possible hate-crime, and referred the matter to the Justice Department in Washington, which considers the case still open but has not taken any action more than two years later.

In an interview, Alubeidy professes affection for his adopted homeland. “I love this country. I have my own house here. I have my kids here. We have the business here,” he says. “Why you love this country? If you have something here, you love this country. I feel Pittsburgh now is my city. It is my home.”

His journey into the American criminal justice system began with a bad back, and a customer at the shop who said he knew a way Alubeidy could get a commercial driver’s license.

Alubeidy had injured his back while working as a tire changer. A former truck driver in the Iraqi army, he viewed a commercial driver’s license as a way to make some money with less physical exertion than his repair work required. He did not know English well enough to pass the test legally, so “he got the short cut,” said his attorney, Markovitz, noting that in some countries, paying tips or other under-the-table consideration to get official licenses and other favors is standard operating procedure.

Alubeidy paid the middleman $600 to get him a license fraudulently. His partner got one too, bartering free repair work in lieu of a cash payment. Alubeidy started telling his friends, and in the close-knit refugee world, word of the availability of the licenses quickly spread around the country.

“It was about chasing the American dream,” said Sam Reich, a defense lawyer here who represented another defendant in the case, who worked at a convenience store in Texas pumping gas.

Pennsylvania state authorities began investigating the scam in 2000. After Sept. 11, with emotions running high, they tipped off the FBI, which launched a nationwide roundup two weeks after the attacks. They arrested 20 suspects from seven states. Like Alubeidy, who had spent five years in a camp in Saudi Arabia after surrendering to allied troops at the beginning of the 1991 Persian Gulf War, they were mainly political refugees from Iraq.

One of the defendants, Fadhil Al-Khaledy, 33, of Detroit, had gotten one of the licenses because his Michigan license had been suspended after a series of speeding tickets. He runs a cleaning company, and needed a way to get from job to job.

“I was in the beginning of my life, and my business. I had to drive. I was driving without a license,” Al-Khaledy, who became an American citizen in early 2001, said in an interview.

The business was starting to get off the ground. He got married, in a family ceremony in Jordan, around the time of the Sept. 11 attacks. On the way home, he was hauled off a plane in Chicago by FBI agents, and jailed, ultimately for 35 days. He recalls thinking: “I cannot be here, being treated like this, because of a fake driver’s license.”

Nonetheless, Ashcroft highlighted the arrests in testimony Sept. 25, 2001, before the Senate Judiciary Committee. “Today I can report to you that our investigation has uncovered several individuals, including individuals who may have links to the hijackers, who fraudulently have obtained, or attempted to obtain, hazardous material transportation licenses,” according to a copy of his testimony, on the Justice Department Web site.

It was a tantalizing theory. But federal prosecutors here quickly determined that none of the individuals were involved in any terrorist activities. “We said publicly, beginning shortly after they were charged and we had a chance to look into it, that they were not terrorists and not connected to any terrorist organization,” said a spokesman for U.S. Atty. Mary Beth Buchanan, whose office prosecuted the case.

Eventually, all but one of the defendants, who had a prior assault record, got probation; none were believed to have been deported. A former license examiner for the Pennsylvania transportation department who was deemed the brains behind the illegal operation drew 18 months. Alubeidy’s friend and business partner, Mohammed Alibrahimi, recently finished 100 hours of community service imposed as part of his sentence, by shelving boxes at a local food bank.

Tom Farrell, a former assistant U.S. attorney here who represented one of the defendants, said that local prosecutors have told him informally that “they would not have prosecuted this federally before Sept. 11.” Farrell was so incensed by how the case was being handled that he asked the judge for a gag order against Ashcroft prohibiting him from further commenting on it in public. The motion was denied.

Sitting on a stool in a chilly, cinderblock garage, puffing on a cigar given to him by a customer, Alubeidy said he is trying hard to put the affair behind him, in part by becoming invisible.

He has a new shop, in a new location, under a new business name, which he does not want disclosed for fear of further reprisal. It is an ethnic name, but one designed to blend into the Italian American neighborhood where the shop is located.

“We are hiding behind this name now,” he said.