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Justice Dept. Pledges 'Proactive Prevention' of Terror

Kenneth R. Timmerman

Thursday, May 25, 2006

 Washington, D.C. -- Deputy Attorney General Paul J. McNulty today pledged that the Justice Department would break up potential terrorist cells in the United States before they could take action, even if it meant occasionally losing cases in court because of insufficient evidence.

 "Awaiting an attack is not an option," McNulty told an audience at the conservative American Enterprise Institute today. "That is why the Department of Justice is doing everything in its power to identify risks to our nation's security at the earliest stage possible and to respond with forward-leaning – and preventative – prosecutions."

 In previous administrations, the Justice Department has waited for a crime to be committed before convening a grand jury to investigate how a criminal conspiracy evolved.

This "law enforcement approach" was codified in a 1995 memorandum issued by then Deputy Attorney General Jamie Gorelick that created a "wall" between law enforcement and intelligence gathering.

 The 9/11 Commission described in excruciating detail how confusion over "the wall" led to the CIA refusing to hand over key information to the FBI that would have led them directly to at least two of the 9/11 hijackers several weeks before the attacks occurred.

 Since 9/11, McNulty said, that approach has changed. "We pledged to those who lost their lives, to the children and loved ones they left, and indeed to our entire nation that we would devote the resources and energies necessary to preventing terrorism and protecting our communities."

 Congress weighed in by passing the USA Patriot Act, which authorized the use of intelligence information in criminal prosecutions before a crime was committed.

 McNulty cited the case of Jeffrey Battle and the "Portland Seven" to illustrate "the obstacles" the Justice Department has had to overcome in post-9/11 prosecutions.

 Jeffrey Battle was a U.S. citizen who attempted to enter Afghanistan in 2001 to fight alongside the Taliban against the United States and allied forces. In order to prosecute him successfully, McNulty said, the Justice Department needed access to "classified materials, including electronic surveillance," which would have been off-limits under the Gorelick rules.

 "In its investigation, the FBI shared important intelligence information with the prosecution team," McNulty said, enabling them "to work together the monitor the risks presented by Battle" before he ever made it to Afghanistan.

"The effort marked a significant operation success that would not have been possible but for the USA Patriot Act," he noted.

 Justice Department prosecutors have also made errors that were "undeniably grave," McNulty said. The most notable was in the case of Karim Koubriti, a 26-year Moroccan immigrant who was arrested in Detroit the week after the September 11 attacks.

The government claimed that Koubriti headed "a sleeper operational combat cell," and presented the jury with video footage of major U.S. landmarks it claimed were taken by members of the cell in preparation for terrorist attacks.

A jury convicted Koubriti and a co-conspirator in June 2003 of supplying material to support terrorism. But a District Court judge tossed out the convictions 15 months later when it became apparent that the lead federal prosecutor had failed to disclose potentially disculpatory evidence to the defendants and their lawyers.

 An internal Justice Department investigation acknowledged prosecutorial error and recommended paying compensation to the defendants.

 McNulty attacked detractors head on. They claimed the Justice Department's new, "forward-leaning" prosecution approach was leading to a high number of acquittals because of insufficient evidence.

 Referring to the acquittal by a Florida jury of Sami al-Arian on certain terrorism charges, he said that "no apology is necessary or appropriate in response to an acquittal . . . The reality is that, while we present the strongest case possible, a jury may not agree with our view of the strength of the evidence. That, though, is the function of a jury."

 In order to prevent terrorist acts, federal prosecutors today "must bring charges before a conspiracy achieves its goals – before a terrorist act occurs," McNulty said.

 "To do so, we have to make arrests earlier than we would in other contexts where we often have the luxury of time to gather more evidence. This heightened risk of acquittals is one we acknowledge and accept given our unwavering commitment to prevent terrorist risks from materializing into terrorist acts."

 McNulty swept aside concerns that information obtained during a FISA-court ordered surveillance was being used to unfairly prosecute Muslim immigrants on unrelated charges, such as immigration fraud or document theft.

 "The simple truth is that terrorists, as well as sympathizers and supporters of terrorist causes, are able to exploit weaknesses in our identification, immigration, and financial systems to facilitate future attacks," he said.

 The Justice Department intended to prosecute immigration fraud and identity theft vigorously, "because those systems are vital to our national security."

 Commenting on McNulty's presentation, Washington Post editorial writer Ben Wittes said he felt McNulty "rather overstated the successes and rather understates the failures," and called the Koubriti case in Detroit "an absolute fiasco."

 He and others noted the "astounding problems with the civil justice prosecution in the [Zacarias] Moussaoui case," noting that "the government lucked out when Moussaoui pled [guilty]."

 So far, the government had "failed to establish any principles" guiding when it would prosecute alleged terrorists in civil courts, and when it would transfer them to military tribunals. "The only guiding principle is convenience," Wittes said.

 McNulty noted that the Moussaoui case "presented a lot of challenges," but would not comment on whether 9/11 planners Khaled Sheikh Mohammad, Ramzi Ben al-Shibh or Mohammad al-Qatani would ever be brought before a U.S. court, as Bush administration critics are demanding.

 Former Clinton administration Justice Department official Neal Kumar Katyal, who is representing Salim Ahmed Hamdan of Yemen - the man accused of being Osama bin Laden's driver - said prisoners held at Guantanamo Bay should be brought to trial in the United States under congressionally-mandated courts martial.

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