| Submit your comments on this article |
| Home Front: WoT |
| Conviction of bin Laden aide upheld |
| 2005-11-03 |
| A federal judge in Manhattan refused yesterday to overturn the 2001 convictions of a former aide to Osama bin Laden in a major terrorism case, but he sharply criticized the United States Marshals Service for suppressing evidence and then trying to hide what it had done. The judge, Kevin Thomas Duffy of United States District Court, raised "grave concerns" about the marshals' actions in a scathing109-page ruling that nevertheless upheld the convictions of the defendant, Wadih El-Hage. Judge Duffy had held hearings over the past year about how the Marshals Service made 28 hours of video recordings of prosecutors' interviews with a crucial government witness that were then not given to the defense before the trial. The witness, Jamal Ahmed al-Fadl, a former member of Al Qaeda, was in the witness protection program, which is run by the Marshals Service. Without telling prosecutors, the Marshals Service taped a series of video conferences between Mr. Fadl and the prosecutors interviewing him. Under the law, the transcripts of those tapes should have been turned over to the defense before trial, Judge Duffy said, but the prosecutors themselves did not learn of the tapes until after the trial. "Through a mixture of inaction, incompetence and stonewalling to cover up their mistakes," Judge Duffy wrote, "the United States Marshals Service and the Department of Justice's Office of Enforcement Operations have seriously jeopardized the convictions of Al Qaeda terrorist Wadih El-Hage." The judge, in his decision, carefully analyzed the suppressed evidence, which included 647 pages of transcripts. Mr. El-Hage's lawyers argued that they could have used the material to try to impeach Mr. Fadl when he testified. The judge concluded that some of the evidence would have provided "fertile grounds for impeachment" by the defense lawyers. In one case, the judge said, the defense could have shown that Mr. Fadl perceived that his immigration status and chances of avoiding prison depended on his testimony going well. But, the judge concluded, "none of the undisclosed material is powerful enough to displace the government's other evidence of El-Hage's guilt." Mr. Fadl testified at length about the history of Al Qaeda and also Mr. El-Hage's role, and the judge noted that other evidence corroborated Mr. Fadl's testimony. "Obviously, we are disappointed but not discouraged," said Joshua L. Dratel, one of Mr. El-Hage's lawyers, who said that the matter would be part of his client's appeal. "Unfortunately," Mr. Dratel added, "sometimes the only thing that prosecutors and agents and people like the Marshals Service understand is the word 'reversed.' You can't reform their behavior by letting them off the hook." Megan L. Gaffney, a spokeswoman for the United States attorney in Manhattan, said there would be no comment, and a spokesman for the Marshals Service in Washington said that agency had not yet seen the opinion, and would not comment. Mr. El-Hage is serving a life sentence at the so-called Super Max prison in Florence, Colo. He was convicted in May 2001 with three other men of charges of terrorism conspiracy, and he was also found guilty of lying in the investigation of Al Qaeda. The conspiracy included the 1998 bombings of two American embassies in East Africa, which killed more than 200 people. It was not until early 2002, Judge Duffy noted, that prosecutors first learned of the recordings. Prosecutors told the judge that the tapes were the result of "an unauthorized, independent decision by one or two employees" of the Marshals Service, and that the prosecutors had nothing to do with making them. In his opinion, Judge Duffy indicated that prosecutors had acted in good faith and were themselves stymied by the marshals' stonewalling. The judge wrote, for example, that when the Marshals Service first revealed the existence of the tapes to prosecutors, one assistant United States attorney, Patrick J. Fitzgerald, "was (to put it mildly) shocked and angered." Yet, despite repeated demands by the prosecutors for the tapes, the Marshals Service took more than two months to turn them over, the judge said. After obtaining the tapes, the prosecutors made transcripts available to the defense. Even then, the judge said, the Marshals Service did not provide until last February an explanation as to why the tapes had been made. The judge cited one official's explanation that the tapes "were erroneously made as a result of miscommunication between members of my headquarters and field staff." Judge Duffy also said that one employee of the Justice Department's Office of Enforcement Operations had suggested that if the Marshals Service kept the tapes, the prosecutors "might avoid any disclosure obligation to the defense" because they would never have possessed the material. The idea was "rejected out of hand" by a superior, the judge noted. The judge also criticized what he suggested was the agency's failure to train its employees in their legal obligations. "On the whole," he added, "the hearings did not paint the Marshals Service as an entity that understood its mistake, let alone an organization working actively to prevent similar debacles in the future." |
| Posted by:Dan Darling |