[This is a Must Read article.]
National Association of Criminal Defense Lawyers (NACDL)
RICO Report By Barry Tarlow January/February 2005, Page 61

In the three years after September 11, 2001, the Bush Administration had almost no convictions on terrorism charges to show for its effort. The rounding up of about 5,000 people for preventive detention produced no such convictions. David Cole, The D.C. Gang That Couldn’t Shoot Straight, L.A. Times, Sept. 19, 2004, at M5. By September 2004, about 500 people were deported, but each deportation order required a finding that the individual was not connected to terrorism. Id. Although the administration touted a record of 100 convictions in terrorism cases, almost all of those were for minor offenses, not terrorism charges. Id. For example, Sheikh Abdirahman Kariye, who was arrested amid much fanfare on false allegations that his baggage had explosive residue, was only indicted on charges of Social Security fraud. He later pled guilty to lying about his income and using false identification to obtain health insurance benefits. Even the charges that purported to assert a link to terrorism, like the indictment leading to the guilty pleas of the Buffalo Six, charged not actual terrorism, but providing material support for terrorists.

The administration’s most significant terrorism convictions involved the hapless “shoe bomber,” captured by an astute flight attendant, and the jury’s guilty verdict as to the three men accused of being part of the so-called Detroit “Sleeper Cell.” Id. As a court recently found, however, even that was three out of four too many.

The Detroit “Sleeper Cell” Case, United States v. Koubriti (U.S. Dist. Ct. E.D. Mich. Case No. 01-CR-80778), is a disturbing chapter in the larger War on Terror. Three of the four defendants in the case were arrested within a week of the September 11 hijackings. When the file came across the desk of administration officials who were hungry for a win in the newly minted War on Terror, they seized upon it. This had been the first trial on charges of terrorism after September 11 and the only one to yield a jury conviction. After a long investigation and a trial in 2003, a jury ultimately returned two convictions on terrorism-related charges, one conviction of document fraud, and one acquittal.

Despite that result, it would soon come to light the case had a seamier side. Too eager to put notches in its belt, the prosecution committed grave misconduct. It simply ignored and suppressed statements by key government witnesses who did not reach the conclusions the lead prosecutor wanted. It buried the opinions of experts who suggested that critical documents or jottings were not likely terrorist diagrams and that the defendants, while at most being common fraudsters, were not terrorists. After the verdict and a court-ordered review of the prosecution, the Department of Justice (DOJ) found itself compelled to admit a pattern of misconduct and to recommend that the court grant the defendants’ motions for post-trial relief.

Although the court ultimately granted post-trial relief, a number of questions remain unanswered. Who is responsible for the misconduct that permeated the Detroit case? Is the case just the work of an overzealous prosecutor and a few agents, as the DOJ contends, or is there more to it? In these troubled times, can those accused of terrorism receive a fair trial in which they are prosecuted by lawyers attempting “to do justice” and in which their fate is objectively determined by an impartial jury?

The Detroit case appears to be part of a pattern of situations in which zealous policies originating at the highest levels of the Executive Branch go awry, with mid-level officials left holding the bag. “[T]op officials at the Justice Department were involved in almost every step of the [Detroit] prosecution . . . .” Danny Hakim & Eric Lichtblau, After Convictions, the Undoing of a U.S. Terror Prosecution, N.Y. Times, Oct. 7, 2004, at A1. In addition to the numerous mid-level officials connected to the case, Barry Sabin, Chief of the counterterrorism section for the DOJ’s Criminal Division since January 2003, was intimately involved in the drafting of the final version of the indictment

When You’re Right, You’re Right: Seeing The World Through Blue-Blooded Glasses

Some people are still under the illusion that people who are not guilty, such as the men in the Detroit “Sleeper Cell” Case, will not be charged, much less convicted of crimes. But the charging and conviction of innocent men in the Detroit case is not entirely surprising. The case is symptomatic of what happens when the executive or prosecutorial power is combined with a zealous belief in the righteousness of one’s cause and the infallibility of one’s judgment. Wilfully blind commitment to ends over means inevitably leads to a bending or breaking of the rules….

Full article: National Association of Criminal Defense Lawyers (NACDL)