The Department of Justice admitted Wednesday that it botched a high-profile terrorism prosecution in Detroit, the latest in a string of setbacks in post-Sept. 11 terror investigations.
In an unusually self-critical filing, Justice Department attorneys asked a judge to throw out the June 2003 convictions of three men in the “Detroit sleeper cell” and to permit a new trial on lesser, non-terrorism-related charges.
The government’s retreat came in the midst of an all-out push by Republicans at their convention in New York this week to portray President Bush as an unflinching and successful leader in the war on terror.
The abject tone of the government’s 60-page filing is likely to do little to advance the administration’s terror-fighting image.
The case already was under appeal by lawyers for Karim Koubriti, Abdel-Ilah El Mardoudi and Ahmed Hannan, who argued that their convictions should be set aside because government attorneys withheld evidence favorable to the defense.
Prosecutor sues government
The lead prosecutor in the case, Assistant U.S. Atty. Richard Convertino, is under investigation for possible prosecutorial misconduct. Convertino in turn has sued the Justice Department, claiming its investigation of him is payback for his criticism of the government’s conduct of the war on terror.
The trial judge, U.S. District Judge Gerald Rosen, is expected to rule quickly on the appeal.
Rosen already has signaled unease with the government’s approach in the case.
During the trial, he cautioned Convertino about withholding evidence and admonished Atty. Gen. John Ashcroft for violating a gag order.
Koubriti, Hannan and El Mardoudi were charged with helping terrorists target sites in Las Vegas, Disneyland and military bases in Turkey and Jordan.
The Justice Department’s filing is filled with blunt language more common to an attack on an opponent’s case.
“In its best light, the record would show that the prosecution committed a pattern of mistakes and oversights that deprived the defendants of discoverable evidence . . . and created a record filled with misleading inferences that such material did not exist,” it states.
In essence the government admitted that it suppressed information that drawings, videos and testimony in the case could be plausibly explained as something besides terrorism activity.
Margaret Sind Raben, an attorney for El Mardoudi, said she believes Rosen nudged the government to acknowledge error in order to avoid “the edifying spectacle of government agents calling each other liars. I think Rosen said to them, `You might think about damage control.'”
The government’s brief focuses on Convertino, portraying him as a renegade prosecutor repeatedly concealing evidence.
But the sheer number of missteps points to a systemic failure at the Justice Department to supervise the case, said Robert Precht, an assistant dean of the University of Michigan Law School and a defense lawyer in the 1993 World Trade Center bombing case.
“In my 20 years as a defense lawyer, I have never seen a government document that so thoroughly and candidly indicts [the government],” he said.
Ashcroft has set a tone in which suspects “are guilty until proven innocent,” Precht said. “The Justice Department has to be more impartial or it’s going to have more of these cases.”
Among the evidence allegedly hidden from the defense was impeachment of testimony by one-time Chicago-based credit card scam artist Youseff Hmimssa, who had described the defendants as involved in terrorist plots.
In a statement not made available to the defense at trial, a jailhouse companion of Hmimssa’s, Milton “Butch” Jones, told authorities that Hmimssa bragged that “he lied to the FBI, how he fool’d the Secret Service agent on his case.”
Other reversals cited
In May, federal authorities admitted they wrongly arrested an Oregon man, Brandon Mayfield, in the mistaken belief that his fingerprints had been found in a van connected to the deadly Madrid train bombings.
In June, the Supreme Court overruled the administration and said people held as enemy combatants, including some 600 prisoners detained at Guantanamo Bay in Cuba, were entitled to their day in court.
Last month, a staff report by the independent commission investigating the Sept. 11 attacks questioned the efficacy of the government’s terrorism finance investigations, including probes of two Chicago-based Muslim charities.
The report noted that while the allegations that charities had ties to terrorist groups “were not baseless,” the decision to freeze their assets without a determination of wrongdoing “raises substantial civil liberty concerns.”
The director of one of the charities, Enaam Arnaout, pleaded guilty to defrauding donors in order to divert money to Islamic fighters in Chechnya and Bosnia-Herzegovina, but the government dropped charges that he aided terrorist groups.
Justice Department spokesman Bryan Sierra said the government has had successful terror prosecutions in Portland, Ore., Buffalo, and in northern Virginia.
“Each case is going to be unique. I don’t think it’s fair to generalize,” Sierra said.
But Osama Siblani, publisher of the Arab American News in Dearborn, Mich., said the collapse of the Detroit case is part of a pattern of overreaching by the Justice Department.
Federal authorities have repeatedly gone into Arab communities, discovered criminal wrongdoing and tried to stretch their findings into terrorism cases, Siblani said.
“These charges are being flushed out,” Siblani said. “They’re not sticking.”
