Trial to Reveal Reach Of U.S. Surveillance

washingtonpost.com
Trial to Reveal Reach Of U.S. Surveillance
Wiretaps to Be Used Against 4 Terrorism Suspects

By John Mintz
Washington Post Staff Writer

For a decade, FBI agents covertly monitored every telephone call and fax sent and received by Florida university professor Sami al-Arian as he communicated with alleged top leaders of the Palestinian Islamic Jihad terrorist group about its suicide bombings of Israelis, shaky finances and high-level turf struggles.

Starting tomorrow, many of those 20,000 hours of phone calls and hundreds of faxes will be revealed in a federal courtroom in Tampa, where al-Arian and three other alleged members of the terrorist group will be tried on charges of conspiracy to commit murder through suicide attacks in Israel and the Palestinian territories.

The trial, expected to last at least six months, will provide a rare view of what the government contends are the clandestine operations of a terrorist group. It is the first case in which vast amounts of communications monitored under the Foreign Intelligence Surveillance Act (FISA) will make up the bulk of the evidence in a criminal prosecution of alleged terrorists -- demonstrating the enormous power the government now wields under that counterterrorism law.


The wiretaps, approved in 1993 through 2003 on as many as 10 phones by a secret FISA court, were originally intended for use only by FBI agents conducting open-ended "intelligence" probes, and not for use in criminal trials. But after the Sept. 11, 2001, attacks, the enactment of the USA Patriot Act and a ruling by the supersecret FISA court of appeals allowed much greater use of intelligence material in investigations such as this one.

Many civil liberties experts express grave concern about U.S. officials' introduction into criminal court of years of wiretaps approved by FISA judges under a lower standard of proof than that demanded by criminal-court judges. But U.S. District Judge James Moody has rejected defense attorneys' arguments that the information should not be heard in court.

Using FISA wiretaps in court is "a serious problem" that puts defendants at a disadvantage, said David Cole, a Georgetown University expert on the law related to terrorism. "Unlike with criminal wiretaps, FISA doesn't give defendants any meaningful chance to challenge the validity of the tap."

U.S. officials say al-Arian and three associates who worked with him at a cluster of institutes affiliated with the University of South Florida (USF) in Tampa were secretly top leaders of the Palestinian Islamic Jihad, sharing duties with other leaders in Syria.

Attorneys for al-Arian, a USF professor of computer engineering until he was fired in 2003, and the other defendants contend that their clients do not condone the terrorist group's violent tactics, and that U.S. prosecutors are criminalizing their opposition to Israeli policies. The U.S. government declared the Palestinian Islamic Jihad a terrorist organization in 1995, making any association with it illegal. Defense attorneys have said that any promotion of the organization by al-Arian and others before then was protected political speech.

"The government has a major leap trying to connect people talking on the phone in Tampa, and doing fundraising, with bombs exploding in Israel 6,600 miles away," said lawyer Stephen Bernstein, who represents defendant Sameeh Taha Hammoudeh, a former USF student. "The government is trying to say, 'If you have an interest in a subject, and if you talk about it with other people, then you must have been involved in it.' "

Moody has also ruled that he will limit defense attorneys' efforts to bring up during the trial the history of the Israeli-Palestinian conflict in their bid to dramatize the Palestinians' plight and their right to resist what they see as Israeli oppression. The defense asserts that the U.S. government has embraced the Israeli government's intelligence findings on the Palestinian Islamic Jihad and that the group represents no threat to the United States.

Lawyer Kevin Beck, who represents defendant Hatim Naji Fariz, manager of an Illinois-based Muslim charity, said there will be clashes in court over "the context and meaning of some conversations," including some in which he said officials unfairly assert the defendants spoke in code about the terrorist group. The prosecutors' case "is built on assumption built on assumption built on assumption, with some hearsay," he said.

The Palestinian Islamic Jihad, founded in Egypt in 1979 and largely funded by Iran, has devoted itself to two missions: the destruction of Israel and the creation of a Muslim Palestinian state. The group is bitterly opposed to peace talks between Israel and the Palestinians and has often stepped up attacks when talks show promise. It has also targeted sites symbolic of coexistence, such as a Haifa restaurant co-owned by Jews and Palestinians, where an operative of the terrorist group exploded a bomb that killed 21 people in 2003.

The al-Arian case has been the subject of intense controversy for a decade. It is a kind of proxy battle for the Middle East conflict, and it has stirred emotions as raw as those in Israel and the Palestinian territories.

In October 1995, after years directing a campaign of deadly attacks on Israelis, Fathi Shiqaqi, then the head of the terrorist group, was assassinated in Malta by the Israelis. His successor was Ramadan Shallah, a longtime top official of al-Arian's USF-affiliated think tank in Tampa. Al-Arian and others at the think tank, the World and Islam Studies Enterprise (WISE), said they had no idea Shallah had ties to the Palestinian Islamic Jihad.

Weeks later, federal agents raided the homes and offices of al-Arian and his associates. Al-Arian denied any wrongdoing or any link to the terrorist organization, and for years academic-freedom activists supported his contention that he was being pilloried for being an anti-Israel Muslim activist.

Much of that controversy died when al-Arian and eight other people, including Shallah, were indicted in 2003. The indictment included lengthy quotes from FISA intercepts indicating that al-Arian had been in close contact for years with Shiqaqi, Shallah and other top group leaders about the group's most secret internal operations.

U.S. officials were allowed to use the FISA intercepts in the case because the USA Patriot Act of 2001 and a FISA appeals court decision in 2003 had torn down the long-unbreachable wall between FBI criminal investigators and intelligence personnel. The legal wall had previously prevented FBI intelligence agents from sharing any information about the FISA taps with agents pursuing criminal cases.

Conviction on the main charges -- including conspiracy to commit racketeering through the murder of Israelis, money laundering and other crimes -- could bring life sentences for al-Arian, Hammoudeh, Fariz and a fourth defendant, Chicago dry cleaner Ghassan Zayed Ballut.

All four also are accused of extortion as part of that conspiracy, on the theory that the Palestinian Islamic Jihad threatens Israelis with death if they do not leave Israel. Andrew McCarthy, a former federal prosecutor, said he believes that is an unprecedented use of the extortion law, but he added that it appears to be legally sound.

McCarthy said the case most resembles a classic Mafia trial, in which prosecutors charge that simply by being in, say, the Gambino family, all the defendants conspired to commit the array of crimes that each committed individually. "You've got to convince the jury the entity is evil," he said.

Prosecutors said they intend to place on the witness stand dozens of Israeli survivors of Palestinian Islamic Jihad attacks. To illustrate the effects of an attack, officials may also play videotapes they made of a bus being blown up in Florida.

Five of the nine indicted defendants are overseas and not in custody and will not be tried. They are Shallah, who still runs the organization from Syria; Abd al Aziz Awda, its original spiritual leader; al-Arian's brother-in-law, Mazen al-Najjar; leading Muslim scholar Bashir Nafi; and Muhammed Tasir al-Khatib, the group's alleged treasurer.

In the early- to mid-1990s, al-Arian, Shallah, al-Najjar and Nafi were all at the WISE think tank in Florida, and U.S. officials said they were four of the 10 members of the terrorist group's worldwide Shura Council, or top leadership body.

Last month, Assistant U.S. Attorney Walter E. Furr III said in court that the Tampa group was a Palestinian Islamic Jihad "cell" that acted as "the communications center" for the Syria-based group by, among other things, disseminating announcements of its suicide attacks.

Al-Arian's alleged role as a conduit of information among group leaders is outlined in the intercepted conversations and faxes. The intercepts also detail the alleged roles of al-Arian and the other WISE defendants in straightening out the Palestinian Islamic Jihad's financial problems, as well as the arguments with various group leaders about how much to tell their Iranian financial patrons about the embezzlement allegedly committed by the group's treasurer.

Al-Arian's attorneys note that he was well known for advocating that Muslims participate in U.S. politics. Al-Arian worked hard to get himself invited to gatherings of powerful officials, meeting with President Bill Clinton and with then-presidential candidate George W. Bush in 2000. Those meetings "seem to belie the notion that Dr. al-Arian was in any way considered by anyone in the intelligence or law enforcement communities to be any kind of threat," his attorney, William Moffitt, said in a court document.