The Department Of Justice Is Forced to Admit Serious Error in the Detroit "Terrorist Cell" Case:
Judges' Key Role In Curbing "War on Terror" Excesses

By NOAH LEAVITT
Wednesday, Sep. 22, 2004

In late August, the Department of Justice submitted a remarkable memorandum of law to U.S. District Judge Gerald Rosen, the judge overseeing its prosecution of a suspected terrorist sleeper cell in Detroit.

In the memorandum, DOJ admitted its prosecution had been riddled with a "pattern of mistakes and oversights." For instance, it admitted that the prosecution deprived the defendants of important discoverable evidence - evidence it was required by law to produce. And it admitted that its lawyers had not been candid - to say the least - about this evidence. To the contrary, DOJ noted, the record of the case was "filled with misleading inferences that such material did not exist" - when actually, it did, and the defendants were legally entitled to it.

A year ago, Attorney General John Ashcroft boasted that this very prosecution was his first court victory in the war on terror. Since then, it has turned out to be his only such victory. And now, it's clear the prosecution was no victory at all - it was a debacle.

Due to the severity of its mistakes, DOJ asked Judge Rosen to reverse the defendants' convictions. The government sees "no reasonable prospect of winning" - apparently, either in its defense of the convictions, or in a new trial on the terrorism charges. (DOJ did, however, ask the judge for a new trial on document fraud charges.) Rosen granted the motion.

Observers have generally agreed with Rosen's decision to throw out the terrorism convictions. But they have often neglected to note that this outcome was far from predetermined: If Judge Rosen had not taken a strong role in this case, DOJ's misconduct might never have been confessed - and the wrongful convictions might have been left to stand.

Moreover, it bears noting - and I will discuss in this column - that Judge Rosen is not the only federal judge who has been able to ensure that justice was done in a "war on terror" case. Indeed, several others in the same judicial district (where I once served as a law clerk, for one of these judges, Judge Pepe) should also be applauded.

Since the terrorist attacks of September 11, the federal judiciary has often received intense criticism for kowtowing to President Bush and Attorney General Ashcroft in the war on terrorism. But these examples show that judges can, do, and should apply intense scrutiny to the government's terrorism cases, in order to make sure justice is done.

Judge Rosen's Crucial Role in the Detroit Case

Judge Rosen is a Reagan appointee. But he rightly held this Republican DOJ to the same high standards he would doubtless have imposed in a Democratic Administration.

In the "Detroit terror cell" case, the government had charged four men with assisting terrorists to scout possible targets at Disneyland, in Las Vegas, and at military posts in Jordan and Turkey.

During the course of the litigation, Judge Rosen repeatedly expressed skepticism as to the government's handling of the case. At times, he even censured the prosecutor, Richard Convertino and Attorney General Ashcroft.

Early in the case, Judge Rosen took care to make sure the jury pool was not tainted. After Attorney General Ashcroft made public comments about aspects of the case that had not been proven, Judge Rosen issued a gag order (which Ashcroft ignored).

At points throughout the case, Judge Rosen expressed skepticism about the government's evidence. In the end, however, the jury - in a verdict rendered last summer -- found the evidence of terrorism sufficient as to at least two of the four defendants. (Two were convicted on terrorism and document fraud charges, one was convicted of document fraud only, and one was acquitted on all charges.)

Still, Judge Rosen's skepticism turned out to be on the mark: In fact, the jury had not seen all the relevant evidence, and in particular, had not seen evidence favoring the defendants' version of events.

After the trial, Justice Department officials finally turned over documents that might have proven exculpatory to the defendants, had they been timely disclosed. And - doubtless in part because Judge Rosen's probing, and his beliefs, had turned out to be justified -- DOJ, as noted above, asked for the convictions to be voided and Judge Rosen granted the motion.

In so doing, Judge Rosen wrote, "Although prosecutors and others entrusted with safeguarding us through the legal system clearly must be innovative and think outside the conventional envelope in enforcing the law and prosecuting terrorists, they must not act outside the Constitution. Unfortunately, that is precisely what has occurred during the course of this case."

Sadly, the government's request to void the convictions may not solely have been the product of its guilty conscience about failing to turn over exculpatory documents. A war within DOJ may also be related. After the pattern of errors came out, Ashcroft initiated an investigation of Convertino - who was taken off the case. But Convertino says the real reason for the investigation is to punish him for his critical comments about the Bush administration's domestic war on terror. Indeed, Convertino is cooperating with a U.S. Senate Committee looking at the government's missteps in conducting its domestic anti-terror campaign.

According to one of the defendants' attorneys, as quoted in the Chicago Tribune, Judge Rosen cited this internal DOJ battle as another reason for DOJ to seek to void the convictions. Otherwise, Judge Rosen reportedly said, the public could be exposed to "the edifying spectacle of government agents calling each other liars."

Another Judge's Admirable Decisions: Ferreting Out Bogus Terror Charges

Fortunately, Judge Rosen has not been alone in asking tough questions in "war on terror" cases. Indeed, two other examples from the very same judicial district - the Eastern District of Michigan, which encompasses Detroit -- are worth noting.

First, there is U.S. Magistrate Judge Steven Pepe. Federal magistrate judges play a critical role in the legal war on terrorism by ruling on applications for search and arrest warrants. They also preside over important pretrial stages of litigation. In this way, they screen cases, and have a profound effect on what will be allowed to move forward.

Since 9-11, magistrate judges have almost uniformly deferred to the government's terrorism investigations, typically granting any governmental request. But Magistrate Judge Pepe was different. In December 2002, he dismissed the federal government's criminal charges against a Yemeni citizen living near Detroit, Mohamed Alajji.

Alajji's former brother-in-law had called authorities to claim Alajji was planning a "bin Laden al Qaeda" type of attack. But when it investigated, the government found scant evidence of such planning. Instead, it claimed Alajji had tried to acquire multiple Social Security numbers in order to aid terrorists - but the only basis for this claim was that Alajji's last name was spelled differently on different applications.

Finding no "probable cause" to hold that Alajji intended to defraud the government, Magistrate Judge Pepe dismissed all of the charges against Alajji during the preliminary hearing. This was the first time in his nearly 20 years on the bench that he had done this - plainly, he found the evidence in Alajji's case to be extraordinarily paltry.

As with Judge Rosen, Magistrate Judge Pepe's skepticism turned out to be right on the mark. The brother-in-law later recanted his claim of any link between Alajji and terrorists.

Alajji, however, was scarred. He left the U.S. for Yemen, stating that he could not escape the suspicion and hatred he felt had been directed toward him, as a result of the government's baseless charges.

A Third Judge Makes the Right Call in A "War on Terror" Case

The appellate court that oversees the U.S. District Court for the Eastern District of Michigan is the U.S. Court of Appeals for the Sixth Circuit. On this court, too, a judge's "war on terror" decision was both brave and correct.

The judge was Judge Damon Keith. The case raised the issue of the closure of immigration proceedings in cases of "special interest" to the government. The Justice Department argued for closure on the ground that it could prevent the spread of dangerous information. But the ACLU, and lawyers for the local media, argued that the Constitution's First Amendment required that the press and public have access to these important proceedings.

The proceedings at issue concerned Rabih Haddad. Haddad -- the co-founder of the Global Relief Foundation, an Islamic charity - was suspected of sending money to al-Queda. Accordingly, the government had begun proceedings to deport him.

(Presumably, though, if the government had had strong evidence, it would have brought criminal charges against him instead - making the case a particularly troubling one. Would the government truly have failed to charge someone with a crime if it genuinely thought to be the money man for terrorists?)

Judge Damon Keith - joined by both of his colleagues on the three-judge panel -- ruled against closure. In doing so, he wrote a stirring defense of open court hearings. He cited the need for an informed public to oversee the government's actions, especially during times of national stress or crisis. He concluded, "Democracies die behind closed doors."

The strong rhetoric of Keith's opinion meant that it served as a challenge not only to the government's decision to seek closure of immigration hearings, but also - and far more broadly - to the increasing secrecy and lack of disclosure that had characterized the Bush administration since 9-11.

The Michigan Example Shows Judges at All Levels Can Play Key Roles

In sum, a magistrate judge, a district judge, and an appellate judge in Michigan -each at a different level of the judicial hierarchy - each managed to make a strong contribution to the preservation of justice in the course of the "war on terror."

Why did these judges have the courage to draw strong lines? One might credit, in part, the court's proximity to Dearborn, with the country's largest Arab and Arab-American population per capita. Or one might credit, in part, its proximity to Detroit, perhaps the most racially segregated city in the United States, and frequently the source of cases dealing with racial discrimination and racial profiling. Or one might credit, in part, its proximity to the University of Michigan, which over the past several years has vigorously and successfully defended the importance of racial and ethnic diversity. Judges, too, live in the real world - and in a particular societal climate. As human beings, they do not miss the messages and lessons of their environment.

But structural reasons - Constitutional reasons - also allowed at least Judges Rosen and Keith to act. As a Magistrate Judge, Judge Pepe is not tenured for life. But Judges Rosen and Keith are - for the Constitution wisely judges that life tenure fosters judicial independence, including the willingness to make even those decisions that displease both local prosecutors, and those at the highest levels of the Department of Justice.

With this in mind, voters ought to think carefully about judicial appointments when they cast their votes for President this November. We may have to pay a great price if the next President values obedience, not independence, in choosing his judicial nominees - from the Supreme Court, to the federal appeals court, to the federal district courts.


Noah Leavitt, an attorney and author, is the Advocacy Director for the Jewish Council on Urban Affairs. He previously served as a law clerk for Judge Pepe. The views expressed here are his alone and all of the information comes from publicly available sources. Leavitt can be contacted at nsleavitt@hotmail.com.

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