Trial Set A 'Terrible Precedent'
Published: Dec 9, 2005
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TAMPA - The failed prosecution of Sami Al-Arian could chill law enforcement efforts to investigate suspected terror-support groups, terrorism experts say.
Al-Arian was acquitted Tuesday of eight counts in a six-month trial that accused him of running a North American cell for the Palestinian Islamic Jihad. Jurors deadlocked on nine other counts, including conspiracy to commit racketeering. They also failed to reach verdicts on eight counts for co-defendant Hatim Fariz.
Ghassan Ballut and Sameeh Hammoudeh were acquitted of all charges.
"When you've got a situation where you've got a high-ranking support organization in the United States and you can't even prosecute that effectively, it's a terrible precedent. I can't imagine a worse precedent," said Jeffrey Bale, assistant professor at the Monterey Institute for International Studies in California.
"It really is a serious setback to really going after the support networks and the front groups," said Bale, who studies militant Islamist groups in the West.
Federal officials are debating whether to retry Al-Arian and Fariz on the deadlocked counts or seek to strip Al-Arian of his permanent residency and try deporting him. Fariz is a U.S. citizen.
"That's something we're currently evaluating: whether a retrial is appropriate," Attorney General Alberto Gonzales said Thursday in Washington. "These are very, very difficult cases, and obviously we're disappointed in what happened in Tampa. We believed this was a good case to bring."
For now, prosecutors and observers are trying to figure out what happened.
Many think prosecutors overplayed their hand, charging so many counts and dumping so many exhibits that jurors were unable to follow. Weeks of testimony were spent authenticating hundreds of translations prosecutors introduced.
They were of private conversations and faxes involving the defendants secretly intercepted by FBI agents. First, the agents who secured the recordings had to explain how they did it. Then a series of translators testified how they made English transcripts and correctly identified the speakers.
Then, prosecutors spent weeks reading transcripts aloud while jurors read along on individual copies.
"A lot of the conversations, to me, were nothing but gossip. A lot of it, to me, didn't make sense," said Juror 214, a Tampa resident who works for the state Department of Corrections.
Wiretaps are convincing to a lawyer but that doesn't mean jurors will agree, said Evan Kohlmann, an investigator who maintains an Internet clearinghouse on terrorist groups. A streamlined presentation might have been more effective, he said.
Terrorism cases by definition pose challenges for prosecutors and, as a result, are few in number and reserved for cases in which there is great confidence, said Kohlmann, who has been a government witness in terror cases. Jurors must sift through references in foreign languages about foreign places and complicated geopolitical issues.
"Unless you have a slam-dunk case in which a defendant is targeting an American target, you may not get a conviction," he said. "Anyone who is going to launch a case like this is going to have to consider the long-term implications of what this case means."
Although the lack of a guilty verdict is an embarrassment, it shouldn't affect any other case, said University of Notre Dame law professor G. Robert Blakey, who drafted the racketeering statute as part of the 1970 Organized Crime Control Act. "They got a black eye because they overtried their case," Blakey said. "Six months? It took them six months, and they couldn't look at those wiretaps and boil them down."
Juror 214 said he is convinced Al-Arian was a member of the Palestinian Islamic Jihad governing board and that a charity prosecutors say Fariz sent money to was part of the terrorist organization.
But that wasn't enough to convict either man of conspiracy or money laundering, he said, because the money was sent to people associated with the charity. It was never proved that the people were part of the Islamic Jihad or that the money went to further violence.
"Were they able to determine to us that this person was a member, it probably would have been enough to me," Juror 214 said. "He's sending money to a PIJ member."
Like Kohlmann, Blakey thinks a simplified case would have helped jurors see a broader conspiracy rather than focus on individual actions over a number of years.
"I don't think it's going to chill anything. We've got a job to do in society," Blakey said. "What this is going to be is a case study of how not to prosecute a case."
