Judge Hears New Evidence in Buffalo-Area Terrorism Case

Sounding deeply ambivalent, a federal judge weighed the significance of newly discovered audiotapes and documents on Thursday as he neared a decision on whether to grant bail to six local men charged with attending an Al Qaeda terrorist training camp last year.

“I do want to get this decision out because, in fairness to all, we cannot continue to allow it to linger or drag out piecemeal,” said U.S. Magistrate H. Kenneth Schroeder, who plans to rule next week. The defendants, who have been in custody since Sept. 13, “deserve a chance” to get the matter expedited, since they are facing potential jail terms of 15 years, he said.

But in yet another hearing in a federal courtroom here, the judge seemed caught between prosectors’ arguments that the men--all American citizens of Yemenite descent--pose a genuine threat to the community, and defense lawyers’ contention that their clients are not flight risks.

Schroeder already had held an extraordinary three-day hearing last week to hear arguments on a motion to grant bail. But he granted defense attorneys another hearing Thursday to discuss new evidence involving the defendants that was presented over the weekend by federal prosecutors.

U.S. Atty. William Hochul Jr. had filed an affidavit alleging that papers and audio cassettes taken from the homes of three of the men contained “highly incendiary” language pertaining to suicide bombings.

Hochul also said the defendants are flight risks because the United States does not have an extradition treaty with Yemen, where many of them have relatives.

The case against the men from Lackawanna, a small steel town south of Buffalo, is simply “a matter of connecting the dots,” Hochul added. “From day one there was no justification training with Al Qaeda.”

But defense lawyers--and Schroeder--voiced strong doubts about the government’s case. Marianne Mariano, an attorney representing Yahya Goba, said the religious cassettes taken from his home by government agents were available to anyone in a store affiliated with the Lackawanna mosque, and he added that “there is nothing that is anti-American, that incites or advocates violence against America” in them.

Schroeder, nodding in agreement from the bench, said: “At best, I can say it [the audiocassette evidence] is now ambiguous.”

James Harrington, attorney for Sahim Alwan, said other tapes taken from his client’s home deal with religious issues. For example, “The Future of the Islamic Nation,” a Jordanian tape made around the time of the Persian Gulf War, was a lecture about the Palestinian drive for a homeland, and another tape chronicled Palestinian grievances against Israel, he said.

“I wonder what I would do if the government came into my house and saw books that I have,” Harrington said. “They could be twisted by someone into being radical or anti-American.”

Schroeder seemed to shift directions, however, when Rodney Personius, representing Yasein Taher, defended a document about the mechanics of suicide bombings that FBI agents seized from his client’s home.

Personius said prosecutors quoted inflammatory language from a small segment of the document and ignored the fact that it was written about the Islamic militants’ battle against Russian troops in Chechnya.

“It’s a position paper on this issue, written from a religious perspective,” the attorney said. “Mere possession” of such a document should not permit the government to deny his client bail, he added.

Schroeder interrupted him, saying the document “almost reads like, here’s how you go about striking terror in the hearts of people ... And this now gets us back to the heart of the matter. We can’t put history out of our minds, we do now know that there was a 9/11 event where people were seeking self-destruction [through bombings] in the United States.”

The judge noted that similar documents were found in the apartment of Mohamed Atta, the ringleader of the Sept. 11 attacks. And he said the Lackawanna men who are accused of attending Osama bin Laden’s terrorist camp were young and impressionable.

“The logic of any reasonable person would be, if one is willing to self-destruct, that person is not going to be constrained by any [bail] conditions that I impose,” he said.

In a final comment that seemed to throw both sides off balance, Schroeder said he was also considering whether the statutory language under which the six men have been charged--providing “material support and resources to a foreign terrorist organization”--may be unconstitutionally vague.

Although the men may have attended the Al Qaeda camp, he said, that in itself might not constitute evidence of a conspiracy to commit violence.

“The constitutional issue is at the forefront immediately,” Schroeder said, before adjourning the hearing. The decision “is not a no-brainer. There are some very difficult legal questions.”