By Peter Slevin
Washington Post Staff Writer
Sunday, November 20, 2005
DETROIT -- Once trumpeted as one of the Justice Department's significant triumphs against terrorism, the case targeting the so-called "Detroit sleeper cell" began less than a week after the attack on the World Trade Center. It was only after a jury convicted two men of supporting terrorism that the flimsiness of the government's case became clear.
As hidden evidence spilled out and the Justice Department abandoned the effort, federal investigators began to wonder whether the true conspiracy in the case was perpetrated by the prosecution.
Now a federal grand jury in Detroit is investigating whether the lead prosecutor, Richard Convertino, or anyone else should be indicted for unfairly tipping the scales.
It is a highly unusual case. No charges have been brought and many details remain secret, but information in public documents and testimony in U.S. District Court in Detroit suggest an effort by federal prosecutors and important witnesses to mislead defense lawyers and deceive the jury. U.S. District Judge Gerald E. Rosen said the government acted "outside the Constitution."
Rosen and Justice Department investigators concluded last year that the prosecution stuck doggedly to its theory in defiance of plausible explanations and advice from other U.S. government officials. Records suggest prosecutors withheld evidence that cast doubt on their conclusions, even when ordered by superiors to deliver documents to the defense.
Convertino, who resigned from the Justice Department earlier this year to practice law in Michigan, has denied wrongdoing. He sued former Attorney General John D. Ashcroft and other superiors, accusing them of mismanaging anti-terrorism efforts and retaliating against him for testifying to Congress about those efforts. His attorneys contend that Convertino was no renegade and was closely supervised by Washington.
It would be "extremely rare for a prosecutor to face criminal charges for misconduct," said former D.C. public corruption prosecutor Randall D. Eliason. "The key is going to be showing deliberate and willfully corrupt misconduct, as opposed to somebody who was pushing the envelope and got carried away."
U.S. District Judge Royce Lamberth threw out the retaliation claim in Convertino's civil lawsuit in October, saying federal court was not the proper venue. He allowed another portion of Convertino's case to proceed, though he has granted a delay while the Detroit grand jury investigation is underway.
The case of the sleeper cell that wasn't began on Sept. 17, 2001, when federal agents searching for a suspect named Nabil al-Marabh instead found three men in a Detroit apartment where al-Marabh had once lived. Among their possessions were fake identity documents, Islamic fundamentalist cassette tapes and a videotape with footage of tourist sites.
Prosecutors charged four men -- Karim Koubriti, Ahmed Hannan, Farouk Ali-Haimoud and Abdel-Ilah Elmardoudi -- with conspiring to help terrorists. Convertino and his principal chief government witness, FBI agent Paul George, believed they had cracked an "operational combat cell" of Islamic terrorists.
Convertino told a jury when the trial began in March 2003 that the men were a "shadowy group" that was "planning, seeking direction, awaiting the call." The most important piece of evidence was a day planner that included a pair of sketches.
To the prosecution, they were the maps of a terrorist. The defense dismissed them as doodles.
Seeing that one drawing said "Queen Alia Jordan," Convertino and his team searched for a match in Jordan among an airport, hotel and military hospital that all bore the name of the former queen. FBI agent Michael Thomas and State Department security officer Harry Raymond Smith testified to seeing striking similarities between the sketch and the hospital's surroundings.
"Every time we turned," Smith testified, "it was getting more and more like this drawing."
There was much discussion during the trial about whether the prosecution had photographs that could settle the debate. When Convertino asked Smith under oath whether he had taken photographs, Smith replied that diplomats "never take pictures" of a military installation because "it could cause bigger political implications."
But Justice investigators said later that U.S. officials had taken photographs and Convertino knew it. E-mails from State Department liaison Ed Seitz reported that the photos had been forwarded to Detroit, where Convertino replied, "Thanks Ed!! We love ya."
Justice lawyers said the photographs and the e-mails should have been disclosed. They concluded, in remarks unusually critical of a fellow prosecutor, that "misleading testimony was elicited."
"It is difficult, if not impossible," the lawyers wrote, "to compare the day planner sketches with the photos and see a correlation between the documents and the hospital site."
Thomas told investigators after the trial that Jordanian intelligence officers believed the drawing more resembled the airport. But he testified differently, telling the jury: "We presented this document to the Jordanians. They said, 'We believe this is the military hospital.' " Convertino said a second day planner drawing portrayed Incirlik Air Base in Turkey. This time he introduced photographs. Thomas testified that the match was "almost identical," while Air Force Lt. Col. Mary Peterson described the sketch as "pre-operational surveillance."
What no one on the prosecution team revealed was that other military analysts thought the drawing was not a bomber's map of Incirlik, but a doodler's depiction of a map of the Middle East.
The Justice review team said Peterson had created the "strong inference" that all Air Force personnel agreed that an object in the drawing was a hardened bunker that existed at Incirlik. But undisclosed documents in the Air Force file called the drawing unclear and described any conclusions as "essentially opinion."
A group of U.S. terrorism specialists in Ramstein, Germany, also studied the drawing and concluded that it might be a Middle East map. That detail took on more importance after the trial when an Air Force investigator described a conversation with FBI agent Thomas.
According to the investigator, Thomas reported that a Yemeni source named Nasser Ahmed told him his mentally unstable brother might have drawn a map of the Middle East while doodling in the day planner. Defense lawyers were never told of the potentially exculpatory evidence, as required by law.
Rosen was so troubled by another piece of hidden evidence that he conducted a December 2003 hearing to find out why the U.S. attorney's office had failed to disclose it. The subject was a letter written by Milton "Butch" Jones, a Detroit drug gang leader awaiting sentencing on a federal murder charge.
Jones wrote to prosecutors that he had spoken in jail with Youssef Hmimssa, the only witness to tie the Detroit defendants to a terrorist cell. He quoted Hmimssa as saying he had lied to the FBI and fooled the Secret Service. Jones offered to show prosecutors his notes and take a polygraph test.
Federal prosecutor Joseph Allen testified in a post-trial hearing that he showed the letter to Convertino more than a year before Hmimssa took the witness stand. When it became clear during the trial that the letter remained secret, Allen was so upset that he notified the head of the Detroit U.S. attorney's office criminal division, Alan Gershel.
Gershel told Rosen how, with the letter in front of him, he instructed Convertino's co-counsel, Keith Corbett, during the trial to release it. Allen said Gershel told him later the same day that the matter had been taken care of.
But Convertino and Corbett did not release the letter. Questioned later by Rosen, Convertino said "it slipped through the cracks" and would not have helped the defense anyway. Corbett admitted a "mistake in judgment on our part," but added that he did not recall Gershel's order to surrender the letter.
Rosen ordered the internal Justice Department inquiry in December 2003, six months after the jury convicted Koubriti and Elmardoudi of supporting terrorism. Those two and Hannan were also convicted of document fraud. Ali-Haimoud was acquitted.
The Justice Department took its own case apart, witness by witness, and delivered scores of pages of evidence to defense lawyers. Rosen also traveled to the CIA to review classified documents.
Beyond the evidence about the trial, the Justice Department review quoted witnesses as saying that Convertino instructed an FBI agent not to fill out official reports on the lengthy interviews of Hmimssa, the questionable witness. The FBI reports -- standard procedure -- would have been accessible to defense lawyers.
Defense lawyers, who had accused the prosecution of concealing evidence and knowingly using false testimony, felt vindicated.
"This was, for lack of a better term, a conspiracy to present a fraudulent case to the court," said Detroit defense lawyer William Swor, who represented Elmardoudi. "They took what was a reasonable concern under the circumstances and turned it into a witch hunt."
Staff writer Carol D. Leonnig in Washington contributed to this report.