The Patriot Act Can’t Make Up for a Weak Case

It was, by some accounts, the most important terrorism-related trial in the United States since the attacks of Sept. 11, 2001 -- an ambitious undertaking that included dozens of government witnesses and hundreds of pages of transcripts of wiretapped phone calls dating to the 1990s.

But the Justice Department’s case against a former college professor, Sami Al-Arian, and three codefendants for financing and promoting terrorism -- a case that had been in the works for more than a decade -- collapsed in a Florida courtroom this week with acquittals nearly across the board. After a recent string of victories, the verdicts cast a pall over the Bush administration’s war on terrorism in the courts.

What happened?

Prosecutors are still picking up the pieces, but the verdicts Tuesday suggest an aversion by jurors to convict those who may be only indirectly involved in violence, especially when the targets are not U.S. citizens. Prosecutors may also have made strategic blunders presenting evidence to the jury; days spent reading transcripts of translated phone calls in the five-month-long trial struck some observers as overkill.

But the outcome also reflects a paradox of the Patriot Act, the terrorism-fighting law enacted after the Sept. 11 attacks that the Justice Department said was instrumental in bringing charges against Al-Arian. The law breathed new life into an old case by allowing the government to combine the work of intelligence and criminal investigators, but the case turned out to be so old and tenuous that jurors were ultimately unmoved.

That is bad news for prosecutors in other high-profile matters in the government’s “cold case” file -- including a recent indictment of onetime “dirty bomb” suspect Jose Padilla.

“What this case shows is, when you cannot connect the dots until the dots are stale, people are not all that interested in the dots,” said Andrew McCarthy, a former federal prosecutor who represented the government in several major terrorism cases in New York.

The verdict also revives a debate over whether the government was too slow to act on intelligence gathered in the 1990s about Al-Arian and other suspects. “If everyone was playing off the same sheet of music, maybe this case gets indicted in 1997 instead of 2003,” McCarthy said. “If that happens, it may be an entirely different result.”

Al-Arian, a Kuwaiti-born Palestinian, was a computer engineering professor at the University of South Florida, well known in the Tampa area for his activism. Suspicions about his links to terrorists arose in 1994, when he was featured in a PBS documentary, “Jihad in America,” that identified him as a leading fundraiser for Palestinian Islamic Jihad, a terrorist group that calls for the destruction of Israel and is known for suicide bombings.

The concern grew after a man he hired to run a Tampa think tank left the United States to become the new head of the Palestinian group. The government launched an intelligence investigation of Al-Arian in the mid-1990s, acquiring dozens of secret wiretaps and generating more than 20,000 hours of intercepted phone calls.

But despite the years of intense surveillance, U.S. officials did not seek charges at the time. Officials have long cited the mythical “wall” prohibiting intelligence agents from sharing information with prosecutors -- a barrier that was removed by the Patriot Act.

Over the years, Al-Arian became a prominent civil rights advocate and spokesman for Palestinian causes. Months before the Sept. 11 attacks, he attended a briefing at the White House complex as part of a Muslim affairs group.

He was charged in a February 2003 indictment that accused him of supporting terrorist bombings in Israel by using an academic think tank and a Tampa charity he founded as fundraising fronts. The case was heralded by then-U.S. Atty. Gen. John Ashcroft as an example of the value of the Patriot Act.

At trial, the government put on a sprawling case. It included hours of transcripts of secretly monitored phone conversations, graphic videos and testimony from more than 80 witnesses.

But the government was unable to link Al-Arian to a single illegal act. There was much evidence that he sent money to what defense lawyers called the charitable arm of the Palestinian group, including to the families of four killers imprisoned for murdering three Israeli soldiers in the early 1990s. But the jury concluded that supporting needy families of killers was not tantamount to aiding terrorists.

The defense, which did not put on one witness, succeeded in portraying Al-Arian as an academic who did not support violence. Defense lawyers characterized him as a scholar and activist who spoke out, sometimes vehemently, against Israel but had committed no crimes.

Al-Arian was found not guilty on eight counts, and a judge declared a mistrial on nine others. He remains in prison while the government decides whether to seek a new trial.

Legal experts said the case boiled down to something that prosecutors frequently find hard to prove: evidence of criminal intent. The nature of the allegations may have fallen outside the definition of what the jury thought “real” terrorism to be. The age of the evidence also appeared to be a factor.

“I do think it critical for the government to pursue those who raise money to fund terrorist activities in Israel and, indeed, just about anywhere else,” said Daniel Richman, a former federal prosecutor and now a professor at Fordham University School of Law in New York. “But a jury confronted with a defendant not alleged to have plotted against the U.S. and who presented himself as merely an intellectual supporter of foreign groups might have found itself unwilling to convict on these charges.”

“There was no murder weapon. There was no fingerprint. This is about a guy who raised money for a group, and that group went out and committed acts of violence, and they thanked him for giving them the money,” said another lawyer involved in terrorism cases who spoke on condition of anonymity because he is close to the government team in the Al-Arian case. “That is different than shooting someone in the head with a pistol.”

Indeed, even the Patriot Act cannot make up for a weak case -- or one that would have been more convincing if it had been brought years ago -- some observers said. “I think it proved instead to be another over-hyped case that, on scrutiny, did not hold up,” said James Dempsey, executive director of the Center for Democracy and Technology, a Washington advocacy group.

Also, the Al-Arian verdict may not bode well for the government in two other cases.

Padilla, a Brooklyn-born former gang member declared an “enemy combatant” in 2002, was recently indicted by a grand jury in Florida, accused of participating in a conspiracy, dating to 1993, to support radical Islamic figures. Many of the “overt acts” cited in the indictment occurred in the mid-1990s, including the use of allegedly bogus charities and businesses to raise money for combatants in Afghanistan, Bosnia and Chechnya.

“It certainly encourages us to see that a U.S. jury honors the constitutional right of free speech,” William Swor, a lawyer for a former San Diego resident named in the Padilla indictment, said of the Al-Arian verdict.

In Chicago, a grand jury indicted a senior Hamas leader and two activists last year on charges that they ran a racketeering enterprise to bankroll the Palestinian group that extended back 15 years.

“It sounds to me like the same kind of stale evidence that they are attempting to use in our case,” said Thomas A. Durkin, a lawyer representing one of the defendants in the Hamas case.

Both cases are tentatively set for trial in September 2006.