- The Washington Times - Monday, March 20, 2006

The case of Zacarias Moussaoui, which has dragged on for more than four years and last week hit a roadblock in its sentencing phase, is the latest example of the difficulties of high-profile terror cases.

“It’s easy to convict people who have done bad things. It’s not as easy to convict people who are planning bad things,” says Andrew C. McCarthy, who successfully prosecuted Sheik Omar Abdel-Rahman of terrorism conspiracy in the 1993 World Trade Center bombing.

“As a result, the government is going to take more shots based on less good evidence,” said the former federal prosecutor.

Post-9/11 pressure to prevent terror attacks is cited for blunders such as overturned convictions, minor sentences and last week’s witness coaching that had threatened the government’s effort to get confessed terror conspirator Moussaoui sentenced to death.

For example, a federal jury in December acquitted four men in Florida — including a former University of South Florida professor — for supporting a terror cell when no evidence directly linking the men to terrorist acts was presented.

Convictions were secured against the six Yemeni-Americans in New York — commonly called “the Lackawanna Six” — accused of traveling to Afghanistan to train in an al Qaeda camp.

But under a plea deal with the government, the six each received sentences of 10 years or less in prison.

Georgetown law professor David Cole, who contributes legal-affairs articles to the leftist Nation magazine, said there is a climate of “overreaching” for victories in the war on terror that produces mistakes.

“You get the kind of overzealous advocacy that you see in the Moussaoui case, the relying on questionable witnesses…,” said Mr. Cole.

Mr. Cole cited as an example the September 2004 dismissal of charges against two Detroit men convicted of supporting a terror cell because prosecutors failed to disclose that their principal witness lied on the stand.

Civil liberties advocates and some legal scholars, meanwhile, have been outraged by the Bush administration’s detention of suspects for lengthy periods without charging them.

The government has, at times, leaked and made public statements accusing individuals of being high-profile terrorists, only to have the bottom drop out when the cases actually go to trial.

Jose Padilla, who was detained for more than three years without being charged, was initially described by then-Attorney General John Ashcroft as a “known terrorist” exploring a plan to build and detonate a radioactive “dirty bomb.”

When he was finally indicted in November, the federal charges against Padilla, a U.S. citizen, made no mention of any such plot. He was charged with conspiring to aid terrorists abroad.

Aziz Huq, head of the Liberty and National Security Project at New York University Law School’s Brennan Center for Justice, said that “for the most part, prosecutors are operating under a great deal of pressure for good reason because these are important matters.”

The pattern of complications points to “a need for some form of oversight … so there can be richer public debate about how charging decisions are made, about what sort of rules are people following at the Justice Department,” Mr. Huq said.

Federal prosecutors in the Moussaoui sentencing trial last week saw their case falling apart when the judge barred testimony on aviation security because witnesses were given transcripts of the trial in violation of earlier orders.

U.S. District Judge Leonie Brinkema relented Friday, saying new witnesses could be used in the case against Moussaoui.

Mr. Huq said the witness-coaching blunder stands apart from other missteps.

“It’s one thing to make a mistake because you’re under pressure, and it’s another thing to break a rule,” he said. “It’s a case of the government simply shooting itself in the foot.”

The prosecutors are trying to show that the September 11 attacks could have been prevented if Moussaoui had not lied to the FBI after his August 2001 detention on immigration charges.

Moussaoui, who already has pleaded guilty, will at the least be sentenced to life in prison.

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