Monday, September 06, 2004

Dangerous Errors
Dangerous Errors

Monday, September 6, 2004; Page A22

"Today's convictions send a clear message: The Department of Justice will work diligently to detect, disrupt and dismantle the activities of terrorist cells in the United States and abroad."

SO SAID ATTORNEY General John D. Ashcroft on June 3, 2003, the day Karim Koubriti, Ahmed Hannan and Abdel-Ilah Elmardoudi were convicted in Detroit in the first major terrorism prosecution to follow the attacks of Sept. 11, 2001. Barely a year later, the department's work on the case looks far from diligent, and it is by no means clear that the government disrupted a terrorist cell. The lead prosecutor is facing a criminal investigation, and the evidence he presented in court has been so discredited that the Justice Department asked the court last week to overturn the convictions and dismiss the terrorism charges. U.S. District Judge Gerald E. Rosen agreed that the government had "materially misled the Court, the jury and the defense [about] critical evidence that provided important foundations for the prosecution's case." Mr. Ashcroft, so quick to crow about a victory in court, now owes a candid, public explanation of what has happened.

The defendants, along with one other, were accused of being part of a sleeper cell of Islamic fundamentalists, collecting intelligence for possible attacks abroad and in the United States. Two were convicted of conspiracy to support terrorism and document fraud, one on only the lesser charge; one was acquitted. Now the department acknowledges that it "failed to disclose matters which, viewed collectively, were 'material' to the defense" and the information it withheld "significantly undermines the basis" of the most serious charges. In its 60-page filing, the department eviscerates its own case. Prosecutors withheld information impeaching their star witness's reliability, it says. A drawing said at trial to be a "casing" sketch did not correspond with photographs of the site it supposedly depicted -- photographs that were never disclosed. Prosecutors' characterization of another sketch, the government now says, was controversial within the government; it may have been an innocent doodle. A videotape said to be surveillance of possible targets may have been taken by Tunisian tourists. There is, quite simply, nothing solid left of the case.

The chief problem here appears to have been the lead prosecutor, Richard Convertino, whom the department yanked from the case after the allegations arose and whose conduct it is now investigating. Judge Rosen described him as having "simply ignored or avoided any evidence or information which contradicted or undermined" his belief in the defendants' guilt. Mr. Convertino has sued the department, alleging a smear, and his lawyer called the withheld materials "insubstantial" and said they would not have prompted a "reasonable possibility that a different verdict would have resulted after trial." But it is highly unusual for the Justice Department to scuttle its own case as it has here. It would be all the more extraordinary if the materials it withheld were not, in fact, important.

The Justice Department responded seriously to the problem, appointing a special attorney to clean up the mess. Its filing last week was comprehensive and candid, and Judge Rosen lavished praise on the new team for "vigorously pursuing and producing to the Court all possible evidence" related to the train wreck. But how did errors so fundamental go undiscovered for so long in such a high-profile case? Why were the department's counterterrorism officials not more closely supervising the work of prosecutors in the field? Why were red flags not raised when officials of different agencies -- as the department now reports -- became concerned that Mr. Convertino was interested only in analysis that supported his case? Mr. Ashcroft needs to answer these questions and make sure that future terrorism cases are not plagued by such dangerous errors again.