Judges looking skeptically at some terrorism charges

THE BALTIMORE SUN

WASHINGTON - When Justice Department officials held a news conference two weeks ago to say they had broken up a "Virginia jihad network," they called the group violent and dangerous and "a stark reminder that terrorist organizations of various allegiances are active in the United States."

But a week later, in what was expected to be a series of routine hearings, a federal magistrate judge, T. Rawles Jones Jr., ordered that five of the men be freed without bond until trial. Challenging their evidence, Jones rebuffed prosecutors' claim that the men posed a serious threat.

Three of the five have since been released. A fourth will appear today before Judge Leonie M. Brinkema in U.S. District Court in Alexandria, Va., to contest prosecutors' appeal of his release. Brinkema has said she is inclined to let the man go until trial. She freed one of his co-defendants Tuesday.

For two judges, from one of the nation's most conservative federal courts, to free defendants in what prosecutors billed as a high-profile terrorism case was a rebuke to the Justice Department. It marked the first time the department had failed in its efforts to hold suspects on terrorism-related charges.

Some legal analysts suggest that after a long period since Sept. 11, 2001, during which the government enjoyed broad discretion to bring terrorism cases and to hold suspects, the pendulum is starting to swing the other way, with greater scrutiny of the government's evidence.

"The administration is having something of a boy-who-cried-wolf problem," said Jonathan Turley, a law professor at George Washington University who has been involved in national security cases as a lawyer.

"The administration has been making these fairly outlandish claims to the public ... and it's caught up with them. The courts are beginning to balk."

The court's action follows a sharply critical report issued last month by the Justice Department's inspector general. The report found "significant problems" in the seizure of illegal immigrants after Sept. 11. It said many suspects who had no links to terrorists were jailed under severe conditions without access to a lawyer.

The inspector general also found that some senior Justice officials dismissed concerns raised by others in the department about whether such actions were legal.

Out of 762 people jailed, none was charged with terrorism, and most were deported after being held for months.

Taken together, Turley said, the rebukes are striking: "I think the government is shocked. When even the most pro-government circuit cannot be convinced [of the validity of the government's actions], it raises significant questions."

In the case of the "jihad network," the Justice Department charged 11 people, nine of them U.S. citizens, with stockpiling weapons and conspiring to train and take part in a holy war in support of a Kashmir terrorist group.

(Six of the men had been in custody, had been arrested outside the area or live in Saudi Arabia.)

Much of the evidence that surfaced at the bail hearings related to suspicions that the suspects practiced military tactics, including playing with toy paintball guns, and in some cases owned AK-47-style rifles.

Some of the men traveled to Pakistan to attend a training camp of the Kashmir separatist group before it was designated a terrorist organization by the State Department. Others have never traveled outside the United States. The government has never alleged that the group was plotting any attack in the United States.

The Justice Department, several officials said, was surprised by the court's unfavorable actions and has since sought to depict the case as less alarming than it had earlier. Department officials declined to appeal the release of two of the men, even after prosecutors had spent hours arguing that both men were violent and a flight risk.

But on the day of the news conference, Alice Fisher, deputy assistant attorney general of the department's criminal division, said, "This case demonstrates our strong commitment to disrupting potential terrorist activity."

"The indictment and arrests we are announcing today illustrate how we seek to back up our No. 1 priority - preventing terrorism - with action," she said.

The department has been under enormous pressure from the White House to prevent terrorist attacks. Justice officials have defended their actions in bringing charges and seeking detention in this and other cases as a way to thwart terrorism.

They contend that terrorists are unlikely to commit the kinds of major crimes that are easier to prosecute - such as shipping large illegal weapons or stockpiling biochemical agents - because they tend to try to blend in and avoid detection.

The department has faced steady criticism from legal and civil liberties groups for detaining defendants who are charged with offenses that could aid terrorists, such as identification fraud, but usually don't warrant keeping someone in custody.

"Initially, all the government had to do was say 'terrorism' and no judge would dream of having someone released," said David Cole, a professor of constitutional and criminal law at Georgetown University. Now, "there are signs that judges are looking more skeptically at the government's claims."

The government is also facing problems in its case against Zacarias Moussaoui, the only person charged in the United States with involvement in the Sept. 11 attacks.

The Justice Department had expected the case to take a few months. The case is now in its second year and has come to a virtual standstill since Brinkema issued a ruling in Moussaoui's favor.

In that ruling, Brinkema ordered the government to allow Moussaoui to question a top al-Qaida figure in custody who could bolster Moussaoui's claim that he did not conspire in the Sept. 11 plot. In response, the government is considering trying Moussaoui in a military tribunal, which would afford him sharply diminished rights.

Cole suggested that the government is beginning to lose credibility in the federal courts, which historically have deferred to the Justice Department.

A public perception is taking hold, he said, that the government has been "overplaying its hand."

"Immediately after 9-11, people were willing to give the government whatever powers it sought," Cole said. "But as more and more time passes, and with more and more stories of people being held without justification, those same people are beginning to say, 'Wait, we want to be safe, but we also want to be free.'"

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