October 7, 2004
TRIAL AND ERRORS
After Convictions, the Undoing of a U.S. Terror Prosecution
By DANNY HAKIM and ERIC LICHTBLAU
The New York Times


DETROIT, Oct. 6 - Publicly, federal prosecutors declared in the summer of
2002 that they had thwarted a "sleeper operational combat cell" based in a
dilapidated apartment here.

Privately, senior Justice Department officials had doubts about the strength
of the case even as they were moving to indict four Middle Eastern
immigrants on terrorism charges. The evidence was "somewhat weak," an
internal Justice Department memorandum obtained by The New York Times
acknowledged. It relied on a single informant with "some baggage," and there
was no clear link to terrorist groups. But charging the men with terrorism,
the memorandum said, might pressure them to give up information.

"We can charge this case with the hope that the case might get better,"
Barry Sabin, the department's counterterrorism chief, wrote in the
memorandum, "and the certainty that it will not get much worse."

But the case did get worse. After winning highly publicized convictions of
two suspects on terrorism charges in June 2003, the Justice Department took
the extraordinary step five weeks ago of repudiating its own case and
successfully moving to throw out the terrorism charges. In a long court
filing, the government discredited its own witnesses and found fault with
virtually every part of its prosecution.

The blame, the department suggested in its filing, lay mainly at the feet of
the lead prosecutor in Detroit, Richard G. Convertino, whom it portrayed as
a rogue lawyer. But documents and interviews with people knowledgeable about
the case show that top officials at the Justice Department were involved in
almost every step of the prosecution, from formulating strategy to editing
the draft indictments to planning how the suspects would be incarcerated.

President Bush himself said the Detroit case was one of several critical
investigations around the country that had "thwarted terrorists.'' But the
wreckage of the case reveals that it was built on evidence that has since
been undermined. A series of missteps and in-fighting weakened the case
further, documents and interviews show. The first line of the government's
indictment now appears to have been copied without attribution from a
scholarly article on Islamic fundamentalism. Government documents that cast
doubt on a critical piece of evidence - what was described as a surveillance
sketch of an American air base overseas - were not turned over to the
defense. And tensions between prosecutors in Detroit and Justice Department
officials in Washington escalated into open hostility.

Mr. Convertino angered the Justice Department by testifying at a
Congressional hearing held by a powerful Republican senator who is a vocal
critic of the department. Mr. Convertino, who was ultimately removed from
the prosecution, is now suing the department and is under investigation for
his handling of this case and others. That inquiry led to the public
disclosure of the name of an Arab informant in the case, who then fled the
country because, he said, he feared for his safety.

The miscalculations and bad blood so overshadowed the case that the truth
about the defendants' intentions may never be known.

Some law enforcement officials, however, continue to insist that the
prosecution was a good one. In an internal e-mail message, an F.B.I.
supervisor in Detroit told agents last month that they should be proud that
their work "may have prevented another attack."

But the Justice Department's critics say that the prosecution was
overzealous and that it demonstrated how the Bush administration's
pre-emptive approach to fighting terrorists by disrupting plots before they
materialize can clash with legal principles of due process and the right to
a fair trial.

"This case became a poster child for the Justice Department in the war on
terrorism, and it had no institutional checks and balances in place to
really look hard at the evidence," said Peter Margulies, a law professor at
Roger Williams University in Rhode Island who has written extensively about
terrorism.

The Justice Department declined to discuss the case publicly, citing a
judge's gag order and pending investigations. But internal documents show
that from its early days, the case never appeared as strong as the
department's public enthusiasm for it.

In August 2002, just days after Mr. Sabin's internal memorandum expressed
doubts about the evidence, the suspects were indicted on terrorism charges,
prompting a supervisor in Washington to send the prosecutors in Detroit
e-mail congratulating them on the indictment "and the nice media coverage."

"For what it's worth," the supervisor, Jeff Breinholt, wrote, "the
higher-ups in D.C. are pleased."

Willing a Sept. 11 Tie

Six days after the Sept. 11 attacks, just before nightfall, seven federal
agents appeared at an apartment on the outskirts of Detroit looking for
Nabil al-Marabh, an Arab immigrant on the terrorist watch list.

Mr. Marabh no longer lived there, but agents found three other Arab
immigrants. They were detained after agents combing through the apartment
found false identification papers, crude sketches that the authorities came
to see as outlines of possible targets, religious audiotapes and a videotape
that they believed held surveillance of the MGM Grand hotel in Las Vegas,
The New York Times headquarters and other sites.

Agents also found expired badges from the Detroit Metropolitan Airport
belonging to two of the men, who had once worked there. A fourth suspect, a
Moroccan wanted for credit card fraud, was arrested later.

The arrests received worldwide attention as part of a nationwide terrorist
dragnet. But for almost a year, the only charges brought were for document
fraud.

Mr. Convertino, the lead prosecutor, said the interest in Washington was
swift. Senior Justice Department officials, he said, "must have asked me a
hundred times" if the men had links to the Sept. 11 attacks. His answer, he
said, was that though he believed the men had ties to terrorists, he had no
evidence linking them to Sept. 11. Nevertheless, at a press conference on
Oct. 31, 2001, Attorney General John Ashcroft said the men were "suspected
of having knowledge of the Sept. 11 attacks" before they happened.

The statement generated a fresh round of news coverage, but it was baseless.
It also violated a week-old gag order by the judge, Gerald E. Rosen, who
later rebuked Mr. Ashcroft in an 83-page opinion. The Justice Department
retracted Mr. Ashcroft's statement within two days.

Prosecutors continued to pursue a terrorism investigation, however. It was
based largely on circumstantial evidence, including the sketches and tapes,
and primarily tied together by someone who knew the men, Youssef Hmimssa, a
Moroccan wanted on fraud charges. Internal Justice Department memorandums
show that the doubts about the case among officials were growing even as
prosecutors prepared a new indictment in August 2002, this one charging the
men with material support of terrorism. In an e-mail message to Justice
officials days before this indictment, David Nahmias, a senior
counterterrorism prosecutor in Washington, wrote that "the charge is
somewhat aggressive, but worth pursuing," adding, "this case has received
press attention before."

In a six-page memorandum attached to e-mail, Mr. Sabin, the Justice
Department's head of counterterrorism, said the case was "not as strong as
other terrorist financing cases" and the chance of success was "a close
call.''

But Mr. Sabin said the men's behavior "fits the pattern of what we know
about global jihad planning."

"The weaknesses in this case," he wrote, "reflect the fact that what was a
fledgling scheme was disrupted at an early stage." He concluded, "From a
nationwide enforcement standpoint, taking a chance on this case is probably
worth the risk."

The indictment meant more headlines and coincided with news of an unrelated
terrorism case in Seattle.

"I'm enjoying speculation that the Detroit and Seattle cases are linked and
part of an orchestrated nationwide enforcement program," Mr. Breinholt, the
Justice Department supervisor, said in congratulating the prosecutors. "The
press gives us much more credit than we deserve, not knowing that the timing
was largely happenstance."

Mr. Convertino said he was surprised to discover that the opening line of
the new indictment and a second passage - both written in Washington, he
said - had been taken almost verbatim from a scholarly article on terrorism
by Quintan Wiktorowicz, a professor at Rhodes College in Memphis.

"It looked like they had just lifted parts of my article word for word,"
Professor Wiktorowicz said in a recent interview.

Meanwhile, cooperation between Detroit and Washington was fracturing. Keith
Corbett, Mr. Convertino's superior, bristled at Washington's intense
oversight.

"In the 25 years that I have worked for the Department of Justice, I have
never seen anything approaching this level of micromanagement," Mr. Corbett
wrote in e-mail to Jeffrey Collins, the top federal prosecutor in Detroit,
on Feb. 26, 2003. "Every act was subject to review by petty bureaucrats,"
Mr. Corbett wrote.

A 2003 departmental review of the Detroit office, obtained by The Times,
cited an "us versus them" attitude between Mr. Corbett's unit, which
normally focused on organized crime, and Joseph Capone, a senior terrorism
prosecutor sent from Washington to monitor the case. The report also said
that Mr. Corbett's unit was "not adequately supervised," and it made Mr.
Collins, who had no experience as a prosecutor before being named United
States attorney in 2001, appear out of touch, saying he "was surprised to
hear that there were still problems" between his office and Washington. Mr.
Collins, who did not return calls for comment, resigned this August shortly
before the government repudiated the case.

In a rebuttal to the review, Mr. Corbett wrote that Mr. Capone had made it
clear that "he had no intention of participating" in the trial and had spent
10 weeks "in a hotel at taxpayers expense, when he was not playing
basketball in the evenings" with prosecutors. Neither Mr. Corbett nor Mr.
Capone would comment.

There were also protracted disputes between prosecutors in Washington and
Detroit over the Justice Department's desire to impose extraordinary custody
measures on the suspects, an idea that Mr. Convertino said was unworkable
and unnecessary. Officials in Washington even floated the idea of declaring
the suspects "enemy combatants,'' he said. Mr. Convertino said officials in
Washington would not give him the resources he needed, assigning only one
full-time F.B.I. agent. Unable to get an adequate computer for closing
arguments, "we bought a laptop from Costco," he said. "It was bubble gum and
shoestring. Every day we'd come back and say, 'If the American public only
knew.' ''

Mr. Convertino was known for an intense and self-righteous manner. Three
former attorneys general had praised his dedication in letters, and Mr.
Corbett wrote in a performance review, "For Rick, all trials are major."
Opposing lawyers found him sharp-elbowed and complained throughout the trial
that he was making it difficult for them to see evidence and have access to
witnesses. Judge Rosen sometimes exhorted him to be forthcoming.

"There seems to be a significant amount of evidence that was known by Mr.
Convertino that was withheld," said James Thomas, a lawyer for one of the
suspects. Senior Justice Department officials said in interviews that they
did not believe Mr. Convertino was sharing important information with them,
either. One official said Washington had directed supervisors in Detroit to
"rein him in" before the trial started.

During a nine-week jury trial, the government presented the men - Karim
Koubriti, Abdel Ilah Elmardoudi, Ahmed Hannan and Farouk Ali-Haimoud - as a
clandestine group that was collecting intelligence for potential terrorist
plots and that might even have carried out an attack. The theory was
bolstered by the testimony of agents and officials from the F.B.I., the Air
Force and the State Department.

But it was Mr. Hmimssa, who once lived with the men, who offered the most
chilling testimony. He said the suspects had communicated in a code
involving names of Moroccan soccer players and talked about obtaining
Stinger missiles, shooting down commercial airplanes and staging an attack
in Las Vegas. Mr. Elmardoudi, he said, told him, "Soon, what is happening in
the West Bank and Gaza is going to happen here.''

Defense lawyers said Mr. Hmimssa was simply telling the government what it
wanted to hear so that he could obtain a favorable plea agreement. One
defense lawyer showed that part of a purported sketch of an American air
base in Turkey, which the government said was a hangar, actually bore a
resemblance to a map of the Middle East.

On June 3, 2003, the government received a split decision. Two of the four
defendants were convicted of terrorism and document fraud charges. A third
was convicted only of document fraud, and a fourth, Mr. Ali-Haimoud, was
acquitted.

"None of us had links with terrorists in any way,'' Mr. Ali-Haimoud, then
22, said in an interview after the verdict. "I'm just a regular Muslim.''

During the trial, the increasingly chilly relations between Mr. Convertino
and Mr. Capone, the lawyer sent by Washington to monitor the case, were on
display. Instead of joining Mr. Convertino at the prosecution table, Mr.
Capone watched from a bench behind the press gallery.

A Political Tangle

Mr. Ashcroft hailed the convictions as "a clear message" that the government
would "work diligently to detect, disrupt and dismantle the activities of
terrorist cells." But there was unfinished business for the prosecution.
That became clear for Mr. Convertino when he was called into Mr. Collins's
office the next month and dressed down because of his frosty and
"unacceptable" relations with Justice Department supervisors in Washington.

"I've been ordered to reprimand you," Mr. Convertino quoted his boss as
saying.

It was the beginning of a spiral that would ultimately derail the terrorism
prosecution.

In late August 2003, Mr. Convertino received a phone call from a Senate
Finance Committee investigator looking into document fraud by terror
suspects. Within days, Mr. Convertino was told that he and his star witness
would be subpoenaed to appear before a hearing and explain how such fraud
was done.

His testimony, in early September, was an innocuous recitation of the case,
but his appearing before the panel set off a firestorm at Justice. The
Finance Committee's chairman, Senator Charles E. Grassley, Republican of
Iowa, a frequent critic of the Justice Department, had held up several
high-level appointments at the department because of objections over its
treatment of whistleblowers. In a lawsuit against the department filed this
year, Mr. Convertino says he was told by Mr. Nahmias, the senior department
official, that Mr. Grassley was not "our friend" and "hates the F.B.I."

Mr. Convertino was removed as lead prosecutor on Sept. 4, three days before
he was even served with the subpoena. The department also began what became
a criminal investigation of his handling of the terrorism case as well as
previous cases.

Dissension within the department broke into the open last December at a
hearing that was called because a new prosecutor on the case, Eric Straus,
had produced two pieces of evidence that had not been turned over to the
defense. The most prominent was a letter from Butch Jones, a cellmate of the
government's key witness, Mr. Hmimssa. Mr. Hmimssa had said he had lied
about the case, Mr. Jones wrote.

At the hearing, Judge Rosen asked five federal prosecutors why he had not
been made aware of the evidence. In responding, they hardly presented a
united front.

Mr. Convertino called the letter "absurd" and said Mr. Jones, a drug lord
facing capital charges, had no credibility. Mr. Corbett agreed with his
assessment. But Alan Gershel, the No. 2 prosecutor in Detroit, said he had
ordered Mr. Corbett to disclose the letter, calling it a "no-brainer.'' Mr.
Corbett said he had "no recollection of that conversation.'' The judge then
chastised Mr. Capone, the prosecutor from Washington, for not making sure
the letter was turned over.

Judge Rosen ordered the government to review the case in a formal report.
"Folks, this is a fine kettle of fish," he said.

Trading Ethics Charges

In the aftermath of the hearing, The Detroit Free Press in January, quoting
anonymous Justice Department officials, detailed a range of accusations of
legal and ethical misconduct by Mr. Convertino, apparently taken straight
from an internal investigation of him.

To Mr. Convertino's detractors, the accusations confirmed their suspicions
that he was willing to play rough to win a case. But to his supporters, it
showed that Justice Department officials, upset at Mr. Convertino over his
dealings with Senator Grassley, were intent on marginalizing him, even if it
meant muddying up the Detroit prosecution and disclosing sensitive
information in violation of department policy.

"This was all part of an attempt to discredit him," said a senior Democratic
aide in Congress who was involved in the case and spoke on the condition of
anonymity because of Judge Rosen's gag order.

In the fracas, Mr. Grassley went so far as to put a hold last year on the
nomination of James Comey to be Mr. Ashcroft's top deputy. The senator
agreed to let Mr. Comey's nomination go through only after the Justice
Department agreed to assign Mr. Convertino to work on Mr. Grassley's
Congressional drug caucus, officials disclosed.

"It is amazing that the very people within the Justice Department accusing
this employee of unethical conduct appear themselves to be committing
unethical acts," Mr. Grassley said in a January statement. He declined to
comment for this article.

Mr. Convertino has submitted to the Justice Department a point-by-point
rebuttal of the accusations against him in a three-inch-thick dossier. The
department, meanwhile, has opened an investigation to determine how the
accusations were leaked to The Free Press.

The Free Press article also disclosed the names of two confidential
informants in the terror-cell case. "I've slept in my truck two nights in a
row; I'm afraid for my life," one of them said in an interview with The
Times this year. The handling of that informant, who has since fled the
country, as well as other informants, has also prompted an internal F.B.I.
investigation.

'A Three-Legged Stool'?

On Aug. 31, the Justice Department made public the results of its
court-ordered review of the case. It was a scathing critique. Craig Morford,
the federal prosecutor in Cleveland assigned to lead the review, described
the case as "a three-legged stool" that was built on shaky evidence from the
start and that had denied the defense numerous bits of information that
pointed to the possible innocence of the defendants.

Some military and intelligence officials, for instance, doubted that the
sketches actually represented the Turkish air base or a Jordanian hospital,
despite "misleading testimony" that suggested there was a consensus among
officials about what they depicted, Mr. Morford said.

Had State Department photos of the Jordan site been turned over to the
defense, they would have undermined the prosecution's argument that one of
the sketches depicted a hospital there, Mr. Morford wrote.

Moreover, Mr. Morford's assessment gave credence to the newly disclosed
testimony of a Tunisian man in Los Angeles who said that the Las Vegas
videotape - purported to represent a surveillance operation - was an
"innocent" sightseeing memento.

The prosecution, Mr. Morford said, "created a record filled with misleading
inferences.''

Some Congressional officials question why Mr. Morford's catalogue of
missteps focused so squarely on Mr. Convertino without assessing
responsibility in other Justice Department officials. Mr. Morford said his
report "was not about blame."

With the terrorism charges dropped, Mr. Hannan, Mr. Koubriti and Mr. Elmardo
udi remain in custody, facing a new trial on document fraud and deportation
proceedings.

But law enforcement and Congressional officials who continue to believe that
the Detroit men represented a terror cell take issue with many of Mr.
Morford's key findings, saying he appeared to present the prosecution's
evidence in the worst light.

Mr. Convertino said: "If there were mistakes, then I shoulder the
responsibility, but this is still a good case. I believe it, the agents
believe it.''

James Thomas, the defense lawyer, said he believed that someone should be
held accountable in the case.

"To the extent these guys have been vindicated, maybe we should look at
people who bang that drum of fear," Mr. Thomas said. "We as United States
citizens were vulnerable to that fear, and it was played on."

http://www.nytimes.com/2004/10/07/na...nt&positi on=