The Rights of the People (50 page)

In exchange for his testimony against the “sleeper cell,” Hmimsa was treated with kid gloves in a plea agreement that consolidated ten felony charges of credit-card and document fraud, and lowered the amount stolen to $70,000, producing a relatively light sentence of forty-six months. This is a chronic problem with criminals who become government informants. But prosecutors here went further: They also protected him from scrutiny by deporting witnesses and burying his boasts of lying, as reported in a letter from a fellow inmate.

The letter came from Milton “Butch” Jones, a notorious drug dealer in the cell next to Hmimsa’s, who took copious notes of conversations as Hmimsa denounced the U.S. invasion of Afghanistan and bragged of fooling the FBI and the Secret Service. It was forwarded to Convertino well before the trial by another assistant U.S. attorney, Joe Allen, and by law should have been given to the defense. But it was not, and so the jury never knew of Hmimsa’s boasts. The inconsistencies in the stories Hmimsa told were cloaked by Convertino’s refusal to put him before a grand jury or allow FBI interviewers to take notes of their pretrial interviews.
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That left no way for defense attorneys to compare his trial testimony with what he’d said before.

The government hid witnesses like peas in a shell game. Three men who could have thrown Hmimsa’s testimony into question were deported before the trial. One of them, Brahim Sidi, “had been in government custody the entire time we were looking for him and the entire time the government said they didn’t know where he was,” complained William
Swor, one of the defense attorneys. “He had been deported three weeks before the original trial date.”

Inconvenient facts were discarded, concealed, or manipulated to fit the theory of the crime. The defense and the jury never learned that FBI counterterrorism agents in Las Vegas had determined that the film purporting to prepare for a terrorist attack was not a “casing video.”

Jurors didn’t hear that the sinister interpretations of the doodles and drawings had been questioned by some intelligence and law enforcement officials. Convertino kept under wraps the CIA’s conclusion that the supposed sketch of the base in Turkey was neither useful nor prepared by a terrorist cell—an assessment Convertino didn’t seem interested in hearing, according to the senior CIA analyst who relayed the finding. A similar view by the Turkish police—that it didn’t resemble any sketch they’d seen done by terrorists—was also kept from the jurors.

Neither defense nor jury knew of a dissenting report by an air force special agent contradicting Lieutenant Colonel Peterson’s testimony that the sketch “was depicting airfield operations.” The agent pointed out that the so-called hangar drawing showed it upside down, its door “opening from the rear” instead of the front. Yet in her testimony saying she’d circulated the sketch among other base officials, Peterson failed to mention the contrary opinion, thereby creating a “strong inference of unanimity,” according to a later filing by the Justice Department, which called her testimony “inaccurate.”
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Finally, despite promises to introduce pictures of the Queen Alia military hospital, Convertino did not do so, putting on the stand a State Department security officer from the embassy in Jordan, Harry Raymond Smith, who had taken aerial photos but testified that he had not, and insisted that he could not because of Jordanian security restrictions. Evidently, the pictures did not coincide with the sketch. Again, the jury never knew.

And so it convicted Koubriti and Elmardoudi of conspiring to provide “material support” to terrorists. They and Hannan were found guilty of document fraud, and Ali-Haimoud was acquitted of all counts.

Why did the jurors buy the story? “You start a terrorism trial on the day the United States invades Iraq, you select an anonymous jury,” explained defense attorney Swor. “They assemble somewhere away from the courthouse at secret parking lots. They come on secret buses. They are escorted into the federal courthouse under guard. You don’t think they are scared? One of the prospective jurors asked to be excused because she was absolutely convinced that our clients were going to find out who she was and
where she lived and send someone to kill her.” Defense attorneys got nowhere in their motions to postpone the trial so it didn’t coincide with the invasion, to reduce the security hype so jurors would not be biased, and to force the prosecution to disclose evidence.

After the convictions and before sentencing, however, the case unraveled, thanks to persistent defense motions and a few honest Justice Department officials. Joe Allen presented the Butch Jones letter about Hmimsa to colleagues, who went to Judge Rosen, confirming the growing unease he had felt during the trial. Rosen ordered a full investigation of evidence withheld, “the most unpleasant task that I’ve had in almost fourteen years as a judge,” he said, which resulted in the government’s motion to dismiss the terrorism charges but to retry the fraud counts.

The epilogue was undramatic. Despite her “inaccurate” testimony under oath, Mary Peterson continued up the career ladder, suggesting that the air force saw nothing wrong with her behavior. She was put in charge of the counterterrorism branch at the Intelligence Fusion Center in Baghdad, then assigned to NATO, commanded a support group in England, was promoted to full colonel, and became the air attaché at the U.S. Embassy in Poland.
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Convertino and Smith of the State Department did not fare so well. Convertino, in long-standing conflicts with some of his bosses, was taken off the case before sentencing and pushed out of government into private practice.
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But that wasn’t the end. This had been the first terrorist trial after September 11, and senior officials found the withholding of exculpatory and impeachment evidence blatant and embarrassing. So the Justice Department took the rare step of indicting its own prosecutor, along with Smith, for conspiracy, obstruction of justice, and making false statements. A jury quickly found them not guilty, however, and so they walked free. Convertino sued the Justice Department for privacy violations and malicious prosecution; Koubriti did the same against Convertino and the government.
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Nabil al-Marabh, the man the FBI was looking for at the Norman Street apartment, was arrested a day or two later in a Chicago suburb but never prosecuted. After a plea agreement on immigration issues, the government assured a federal judge that he had no terrorist ties, contrary to the intelligence report that had set the entire case in motion, and he was deported to Syria.
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Hannan and Koubriti remained vulnerable to prosecution for faking injuries in the traffic accident to defraud an insurance company—the same accident that had brought their dismissals for missing work at
Sky Chefs. Hannan, tired of waiting in jail, pleaded guilty and accepted deportation back home to Morocco. Koubriti was released from jail on an electronic tether, hence the ankle bracelet. Helfrick worked to resolve the charge, and in 2009 the government finally agreed to drop it if Koubriti stayed out of trouble for six months.
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“There are a lot of dangerous guys out there,” concluded the reporter David Ashenfelter. “These aren’t among them.”

How to deal with the dangerous and spare the innocent—and how to know the difference—are questions that have put the United States itself on trial since September 11, 2001. The constitutional culture has been unsettled by various methods used against terrorism suspects inside the country—not just the “detainees” at Guantánamo and those who disappeared into secret CIA prisons abroad. On U.S. soil, with insufficient evidence to bring criminal charges, the government has imposed preventive detention by locking people up as “material witnesses,” jailing them for months pending deportation, or—in three cases—putting them in military prisons as enemy combatants. When the criminal courts have been used, solid investigation has been mixed with bumbling and overreaching.

Protections of the Bill of Rights are violated every day at the grassroots level of American life, but when the encroachments occur on the large stage of counterterrorism, the drama grips Americans’ passions with special force. The country now thinks about civil liberties mainly in terms of the war on terrorism, not the war on crime, although the incursions into liberty are part of the same set of constitutional issues.

Because terrorism combines ideology and violence, authorities have trespassed on the First Amendment by considering speech and religion when targeting suspects. Because prevention is paramount, officials have tunneled beneath the Fourth Amendment’s restrictions on search and surveillance, and have sometimes breached the Fifth Amendment’s shield against self-incrimination to gather intelligence. Because state secrets need keeping and public trials are unpredictable, the protectors of national security have sporadically evaded the protections of due process in the Fifth and Sixth Amendments, including the right to counsel and the right to confront and summon witnesses.

As in certain cases of ordinary crime, the unconstitutional actions have damaged the reliability of the fact-finding process, whose accuracy depends on the strict observance of the principles. Some innocents have
been convicted, some who are guilty have surely been missed, and egregious penalties have been imposed on hapless misfits who have fantasized more vigorously than they have plotted.

Unconstitutional expedience has coursed through one agency after another like a virus infecting a remarkable number of highly educated attorneys from the most prestigious law schools. Yet it has also activated the country’s self-correcting immune system, leaving us ill but very much alive. The judicial branch did not stand passively aside as the Bush administration tried to imprison people in the United States indefinitely without access to the courts. And contrary to some conservative Republicans’ fears that criminal courts could not handle terrorist cases, they have proved capable of doing so.

Outcries erupted on the right when President Obama initially moved the leading 9/11 plotters from Guantánamo into the civilian system, and when his Justice Department prosecuted in civilian federal court the al-Qaeda-trained Nigerian student Umar Farouk Abdulmutallab for trying to blow up a plane as it approached Detroit on Christmas Day 2009. Loud patriotism, it seemed, meant casting aspersions on the constitutional rights provided in the criminal justice system, a crown jewel of our democracy. The country could not agree on how to protect its own liberties.

One argument held that observing the rights (to counsel, against self-incrimination) for a non-American in an act of war would deprive the government of critical information, presumably accessible through tough interrogation. The assumption did not hold up. Abdulmutallab talked freely following his arrest about his associates in Yemen and, following a hiatus after being Mirandized, resumed cooperating at the urging of his family, presumably in the hope of a plea agreement.
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Similar arrangements had been achieved in numerous cases where suspects with attorneys had offered useful intelligence after being read their Miranda rights to silence and to counsel: An American in Chicago, David Coleman Headley, provided information on the 2008 attacks on a railroad station, hotels, and a Jewish center in Mumbai. A New Yorker, Bryant Neal Vinas, helped European prosecutions with details on al-Qaeda training camps. Mohammad Junaid Babar, an American who had given or received explosives instruction in the Afghan-Pakistani border region, pleaded guilty to conspiring to provide material support to al-Qaeda and testified in Canadian and British terrorism trials. Based on cooperating defendants in Minneapolis, the government acquired enough evidence to charge eight men with recruiting young immigrants
to become suicide bombers in Somalia.
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The would-be Times Square car bomber, Faisal Shahzad, talked helpfully before and after being read his rights, the Justice Department reported. He later pleaded guilty and received a life sentence.

Nothing indicated that military commissions, favored by critics on the right, would do better than civilian courts. In examining 123 prosecutions for terrorism, almost all of them since 2001, Human Rights First concluded that the criminal justice system had performed adequately, and that no alternative mechanism was needed—not an “enemy combatant” designation by the president, and not a national security court as advocated by George W. Bush’s last attorney general, Michael B. Mukasey, where hearsay and coercion might be accepted, and evidence based on sensitive intelligence could be concealed from defendants.
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In advocating a security court, Mukasey cited his 1995 experience as a U.S. district judge trying a group led by Sheikh Omar Abdel Rahman for conspiring to blow up the United Nations headquarters, the Holland and Lincoln Tunnels, and other New York City landmarks. A list of nearly two hundred unindicted co-conspirators, representing considerable secret work by intelligence agencies, was disclosed to defense lawyers, and “that list was in downtown Khartoum within ten days,” Mukasey said, alerting those named (including Osama bin Laden) that they were under U.S. surveillance.
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Mukasey’s claim was misleading. The law contains a workable remedy, which the government never invoked to conceal the names in that case: the Classified Information Procedures Act (CIPA).
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It was passed in 1980 after defendants accused of espionage and other crimes tried to “graymail” the government into dropping charges by threatening to divulge secrets or demand their disclosure in open court.
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The ploy sometimes worked, and prosecutions were abandoned to avoid unwelcome revelations. Now, the CIPA procedures allow a judge to conduct a closed, in camera review of classified information to be introduced by the defense or sought from the government. If the judge finds the evidence relevant, the government says yes or no to disclosure.