From the Detroit News... the former lead prosecutor is suing the Justice Department alleging the department played politics with the case... the first major publicized terrorist arrest after 9-11. Here's what the guy says... "DOJ Washington had continuously placed perception over reality to the serious detriment of the war on terror..." (Ashcroft has violated the court's gag order at least twice in this case... where are all the rule of law folks calling the nation's Attorney General to resign?) _________________________ Detroit's terror trial Fed missteps jeopardize terror case Federal review finds government ignored own rules, withheld more than 100 documents from defense By Norman Sinclair, Ronald J. Hansen and David Shepardson / The Detroit News The Defendants Abdel-Ilah Elmardoudi Convicted of terror conspiracy. The reputed head of the sleeper cell ran ID scams across the Midwest. Karim Koubriti Convicted of terror conspiracy. Allegedly the most active member of the cell, he scarcely had any money. Ahmed Hannan Convicted of possessing false documents. He may already have served more than his sentence will be. Farouk Ali-Haimoud Acquitted of all charges. The most religious of the four and the last to join the group. DETROIT — Prosecutorial missteps and questionable investigative practices threaten to undermine the convictions in the first terror trial held in the aftermath of the September 11 attacks. A Detroit News review of thousands of pages of documents in the case and interviews with law enforcement experts found that the case was colored by an overly aggressive prosecution in an atmosphere of public demand for a terror crackdown. Government investigators repeatedly ignored rules intended to ensure a fair trial. What resulted was an investigation geared toward winning at any cost. The government literally went around the world to bolster seemingly benign evidence and transformed an obvious case of document fraud into the nation’s first post-September 11 terror trial. The government says the men got a fair trial. The “misplaced complaints as to the misconduct of the government and the court are either not consistent with the actual evidence, are overstated, or simply not supported by the law,” prosecutors said in recent court papers. U.S. Attorney Jeffrey Collins, the Justice Department and FBI all declined comment for this story because of a gag order prohibiting them from discussing the case. But the case has become an embarrassment for the Justice Department. The case — which yielded two terror conspiracy convictions last June — is under review by federal officials and could be overturned by U.S. District Court Judge Gerald E. Rosen. The Justice Department itself has launched three investigations into the terror case and allegations of prosecutorial misconduct. It is also fending off a lawsuit from the former lead prosecutor, Richard G. Convertino, who alleges Washington officials mishandled the case. “The lesson of this case is how conscientious people who feel that they are trying to protect the country can make terrible mistakes,” said Robert Precht, an assistant dean at the University of Michigan and a defense attorney for one of the men in the 1993 World Trade Center bombing. “I most blame the win-at-all-costs atmosphere that (U.S. Attorney General John) Ashcroft has created.” The seven-week trial in Detroit resulted in the conviction of two of the four men for conspiring to provide material support or resources to terrorists. The jury verdict was hailed by the Bush administration as a major victory in the nation’s war on terror. One other defendant was convicted of document fraud; a fourth was acquitted. But an array of problems now threaten to unravel those verdicts. Among them: * An ongoing court-ordered review has found the government withheld more than 100 documents from the defense, including CIA intelligence reports. Also withheld was an interview with a man who claimed the prosecution’s star witness admitted lying to investigators. * The government’s key witness, Youssef Hmimssa, is a serial con man who was wanted for crimes in Europe and had lied to U.S. authorities before. During 20 hours of interrogating Hmimssa about terrorism — often without his attorney present — FBI agents took few notes. * Before the trial began, the government deported at least two witnesses who challenged the prosecution’s case. * In at least one file prosecutors handed over to defense lawyers, a page with information critical to the defense was missing, defense lawyers say. * Violations of a court gag order by Ashcroft and government leaks raise concerns about whether the defendants got a fair trial. Terrorist dragnet The case began on Sept. 17, 2001, six days after the terror strikes in New York, Virginia and Pennsylvania. At the time, the government appeared to have stumbled onto a significant suspicious cache of evidence of terrorism. A raid on a southwest Detroit flophouse turned up 28 different passport pictures — some including Hmimssa — forged immigration and identification papers, and expired security badges from a Detroit Metropolitan Airport caterer where two of the men worked until they were fired. They had answers to the state’s test for commercial driver’s licenses. The most intriguing item, however, was a day planner with two pages of crudely drawn sketches. Prosecutors would later say the sketches were military airplanes at an American air base in Turkey and a military hospital in Jordan. The defense maintained the day planner belonged to a mentally ill man who killed himself in March 2001. The FBI raided the apartment on Norman Street looking for Nabil Al-Marabh, who was No. 27 on the FBI’s terrorist watch list and was suspected of having ties to al-Qaida. He had moved months earlier. Instead, agents found three North African immigrants: Ahmed Hannan, 35, and Karim Koubriti, 25, both from Morocco, and an Algerian, Farouk Ali-Haimoud, 23, the son of a U.S. citizen. All were in the U.S. legally. Al-Marabh was arrested Sept. 19 in Chicago and held for nearly two years. He was never charged with terrorism and was deported in January for entering the country illegally. Early on, the investigators decided they had more than a document fraud case. As they looked at the evidence found in the apartment, they soon were viewing it as a sleeper terror cell. For example, authorities were convinced that a videotape of young unknown Arabs visiting Disneyland, Las Vegas and New York City was actually surveillance of targets the defendants were plotting to bomb. Two of the defendants were photographed outside Comerica Park. Investigators maintained that reinforced an allegation that they planned to drive a truck bomb into the stadium. Those allegations would come from a Moroccan criminal, Youssef Hmimssa. He was a federal fugitive for credit card theft in Chicago, crimes that could send him to prison for up to 81 years. After reaching a plea agreement with the government that could limit his sentence to 46 months, he became the only witness to accuse the Detroit men of terrorist activities and involvement in Islamic extremism. Hmimssa lived with the Detroit men for about a month. Hmimssa, who was arrested Sept. 28, 2001, in Iowa, also implicated the fourth defendant, a Moroccan lawyer, Abdel-Ilah Elmardoudi, who was arrested in late 2002 in Greensboro, N.C. Like Hmimssa, Elmardoudi, 38, had several phony identification papers with him, computer equipment to support an identity theft operation and he was wanted in Minnesota for fraud. He also had $83,000 in cash when agents found him on a bus by chance. Handling Hmimssa In most investigations, federal agents take careful notes of their conversations with witnesses, especially those with detailed knowledge of a criminal operation. These notes are turned into reports that can be viewed by defense lawyers who will confront witnesses with any inconsistencies. Federal agents in Illinois took notes of their talks with Hmimssa when he was charged with credit fraud, as did agents in Iowa when he was questioned about the Detroit case. FBI agents in Detroit initially kept notes of interviews with Hmimssa, but stopped doing so during the early sessions in which Hmimssa accused the men of terrorist plots. Convertino, the lead prosecutor, took his own notes, but those were shared only with the judge, not the defense lawyers. The government turned over to the defense more than 200 reports of their witness interviews. But there was little record of their interrogations of Hmimssa, which lasted between 20 and 30 hours. Also, the government never called Hmimssa to tell the grand jury in Detroit what he knew, even though his allegations formed the strongest basis of the indictments. Still, William Swor, who defended Elmardoudi, said the decision to not take notes is a first for him. “In 31 years, it’s never happened before” in my career, he said. A current and a former FBI agent, who spoke on condition of anonymity, said the government’s handling of Hmimssa was baffling. The retired Detroit FBI supervisor said that taking notes during interrogations was required. Such information is put in an “1A envelop,” a personal file that agents maintain for documenting evidence, he said. The notes are an important element of the investigative file, which must be shared with defense attorneys. U-M’s Precht, however, said that from his experience in the 1993 terror case, FBI agents rarely produced interview reports. Deported witnesses The government flew a Turkish customs official to Detroit to confirm that someone using names that Elmardoudi was found with had visited that country in 1996 and 1997. A top military official at the air base in Incirlik, Turkey, also traveled to Detroit to tell jurors that the crude day planner sketches matched the takeoff pattern of three types of jets that fly at her base. Such were the lengths the government went to to track down evidence in the Detroit terror case. But the defense was hampered when two of their witnesses were deported before the trial. Government officials maintain the deportations were an accident, not intentional. Those witnesses, Zouhair Ben Mohamed Rouissi and Brahim Sidi, offered similar descriptions of the defendants’ behavior. Each said Hannan and Koubriti smoked, drank alcohol, used drugs and had casual sex with women, actions that violate strict Muslim teachings. Neither Hannan nor Koubriti gave any indication they were religious fundamentalists or politically engaged, Rouissi and Sidi separately said. Even Hmimssa initially told investigators that the men drank and smoked hashish. Government agents located Sidi late in the trial and he testified by phone from Morocco. But the defense lawyers said the poor acoustics in the courtroom and his heavy accent rendered his testimony difficult to understand. Rouissi was never located and did not testify. Another witness said Ali-Haimoud tried to encourage him to take an interest in Islam. But Ali-Haimoud was cited for soliciting a prostitute in Detroit, calling into question the limits of his religious devotion. Al-Qaida link Hmimssa’s most serious allegations against the defendants were unsubstantiated by others. In court, he testified that Koubriti wanted to buy Stinger missiles to shoot down American aircraft. There was no evidence Koubriti or the others tried to do so or even could. Military experts estimate that Stingers currently fetch $208,000 on the black market. Hmimssa testified that Hannan described the American embassy in Jordan as though he had seen it before. There is no evidence that Hannan ever visited that country, but Hmimssa once lived with a Jordanian judge in Chicago. In addition, Hmimssa said the men often spoke of “brothers,” a term used in the al-Qaida terrorist manual. The men were never found with such a manual. Lead prosecutor Convertino ended its case warning jurors against what could happen and urged them to protect “all parts of Michigan, people who think they’re safe, who don’t think about anything other than getting home to their families.” In his closing argument, Swor offered this interpretation of the case to the jury: “Their witnesses have outright lied. (The government) has hidden evidence from you. They took a reasonable concern and elevated it to pure panic ... They started with caution, they ended with chaos. They started and arrived at their conclusion first then they worked backwards to fill in the blanks.” Evidence withheld More than four months after the trial ended, charges emerged that the government had withheld significant evidence from the defense. In November, after a change in the prosecution team, the government disclosed that Milton “Butch” Jones, a notorious drug dealer, told prosecutors in a letter more than a year before the trial that Hmimssa told him he had lied to investigators. Alan Gershel, the then-No. 2 prosecutor in the U.S. Attorney’s Office in Detroit, later maintained he had ordered one of the trial prosecutors to share this information before the trial. The prosecutors do not recall the order. Jones, who is awaiting trial in a federal death penalty case, kept detailed notes of conversations with Hmimssa he made while they shared adjoining cells in the Wayne County Jail. He said Hmimssa scoffed at an assertion by Ashcroft that the Detroit men had ties to September 11. “He (Ashcroft) don’t know nothing what he talking about,” Jones quoted Hmimssa as saying. “They have no evidence of a link.” Convertino said he did not notify the judge or the defense of Jones’ statements because the letter “struck me as absurd on its face.” Jones wrote that Hmimssa called President Bush a drug dealer in one passage. “That’s not a decision you get to make,” Rosen scolded Convertino in a December hearing into the matter. After listening to Jones and noting that he had knowledge of obscure facts about Hmimssa, Rosen said he found Jones credible. Hmimssa swore under oath he never talked to Jones about his case. Precht said that because the case centered around Hmimssa’s credibility, the failure to turn over evidence related to him demands a retrial. “It’s hard to imagine a clearer case where the evidence may have made a difference,” he said. Rosen has since ordered a comprehensive review of all documents in the case, including sensitive intelligence that deals specifically with the September 11 attacks. Government lawyers have traveled to CIA headquarters in Langley, Va., to review these reports. Rosen is reviewing more than 100 other documents that were never turned over to the defense. The government is sifting through the records to determine what can be declassified and shared with defense lawyers, whom Rosen ordered to get government security clearances. Rosen is expected to hold a hearing this summer to determine why these records weren’t shared earlier. Defense attorney Leroy Soles, who represented Koubriti, said: “This was trial by ambush.”
