Trial to Reveal Reach Of U.S. Surveillance
Sunday, June 5, 2005
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.