Reprinted from
JusticeDept. Pledges 'Proactive Prevention' ofTerror

Kenneth R. Timmerman

Thursday, May 25,2006

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

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

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

This "law enforcement approach" was codified in a 1995 memorandumissued 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 howconfusion over "the wall" led to the CIA refusing to hand over keyinformation to the FBI that would have led them directly to at leasttwo of the 9/11 hijackers several weeks before the attacksoccurred.

 Since 9/11, McNulty said, that approach has changed. "Wepledged to those who lost their lives, to the children and loved onesthey left, and indeed to our entire nation that we would devote theresources and energies necessary to preventing terrorism andprotecting our communities."

 Congress weighed in by passing the USA Patriot Act, whichauthorized the use of intelligence information in criminalprosecutions before a crime was committed.

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

 Jeffrey Battle was a U.S. citizen who attempted to enterAfghanistan in 2001 to fight alongside the Taliban against the UnitedStates and allied forces. In order to prosecute him successfully,McNulty said, the Justice Department needed access to "classifiedmaterials, including electronic surveillance," which would have beenoff-limits under the Gorelick rules.

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

"The effort marked a significant operation success that would nothave 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 ofKarim Koubriti, a 26-year Moroccan immigrant who was arrested inDetroit the week after the September 11 attacks.

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

A jury convicted Koubriti and a co-conspirator in June 2003 ofsupplying material to support terrorism. But a District Court judgetossed out the convictions 15 months later when it became apparentthat the lead federal prosecutor had failed to disclose potentiallydisculpatory evidence to the defendants and their lawyers.

 An internal Justice Department investigation acknowledgedprosecutorial error and recommended paying compensation to thedefendants.

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

 Referring to the acquittal by a Florida jury of Sami al-Arianon certain terrorism charges, he said that "no apology is necessaryor appropriate in response to an acquittal . . . The reality is that,while we present the strongest case possible, a jury may not agreewith our view of the strength of the evidence. That, though, is thefunction 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 inother contexts where we often have the luxury of time to gather moreevidence. This heightened risk of acquittals is one we acknowledgeand accept given our unwavering commitment to prevent terrorist risksfrom materializing into terrorist acts."

 McNulty swept aside concerns that information obtained during aFISA-court ordered surveillance was being used to unfairly prosecuteMuslim immigrants on unrelated charges, such as immigration fraud ordocument theft.

 "The simple truth is that terrorists, as well as sympathizersand supporters of terrorist causes, are able to exploit weaknesses inour identification, immigration, and financial systems to facilitatefuture attacks," he said.

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

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

 He and others noted the "astounding problems with the civiljustice prosecution in the [Zacarias] Moussaoui case," notingthat "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 onlyguiding principle is convenience," Wittes said.

 McNulty noted that the Moussaoui case "presented a lot ofchallenges," but would not comment on whether 9/11 planners KhaledSheikh Mohammad, Ramzi Ben al-Shibh or Mohammad al-Qatani would everbe brought before a U.S. court, as Bush administration critics aredemanding.

 Former Clinton administration Justice Department official NealKumar Katyal, who is representing Salim Ahmed Hamdan of Yemen - theman accused of being Osama bin Laden's driver - said prisoners heldat Guantanamo Bay should be brought to trial in the United Statesunder congressionally-mandated courts martial.