Justice Dept. Prosecution Of "Lackawanna Six" Stumbles

by Christopher Brauchli

A former senior FBI official in Washington who was engaged in supervising the investigation of the men for months before the arrest was made said in an interview that secret surveillance revealed no sign that the men had any hostile intent. According to the Wall Street Journal, Michael A. Battle, the U.S. Attorney in Buffalo who is prosecuting the men, said the government had found no evidence the defendants were involved in any violent plot.

One of the questions that will never have to be answered is whether in fact the men were involved in any kind of terrorist activities. Although they were charged with providing "material support and resources" to a terrorist organization, there is no law that says whether merely attending a training camp is sufficient to support a conviction under the law. The need to answer that question has been avoided by persuading the defendants to plead guilty. Three have entered their pleas and the remaining three are expected to do so soon.

Patrick Brown, the attorney for one of the men who pled guilty, said his client did so after prosecutors raised the prospect of his being declared an enemy combatant with the attendant consequences of indefinite detention and no access to lawyers. As an additional incentive, it was also suggested that if he did not plead guilty he might be charged with treason, a charge that carried with it the possibility of the death penalty. A guilty plea seemed like an attractive alternative to either of the other possibilities

Commenting on the guilty pleas, Barry Sabin, the Justice Department's chief counterterrorism prosecutor said: "When you have defendants admitting to their criminal culpability, that confirms that this was a just and proper way for us to proceed." He also explained that Attorney General John Ashcroft "wants us to think outside the box but inside the parameters of the Constitution." That probably explains the process.

As effective as all that has been, there is one federal judge who is less inclined to follow Mr. Ashcroft's lead. Judge Lewis Babcock of Denver ruled in early April that two Pakistani men who were being held on immigration charges while the FBI tried to establish that they had terrorist links, should be released on bond.

The two men were arrested along with four other Pakistanis on charges of harboring an illegal immigrant. Four of the six were released on bail but the federal prosecutors asked that Irfan Kamran and Sajjad Naseer be held without bail on the grounds that they had some terrorist connections even though they had not been accused of acts of terrorism. One of the men had attended the training camp run by the Army of Mohammed in the summer of 2001 but that group was not listed as a terrorist organization at the time he had attended it and, according to testimony from an FBI witness, he left after four or five days because it was too strenuous. His attorney said the group was primarily concentrating on battling India for control of Kashmir rather than on opposing the United States. In arguing for the detention of the two men the prosecutors introduced information provided by "a confidential source." When Judge Babcock asked whether the source was reliable, the FBI witness said that the reliability of the witness was classified information.

Describing the government's approach, David Lane, the attorney for Mr. Naseer said: "They dig up any charge they can think of to get these guys into court. Then they haul out their unnamed sources and classified evidence and tell the judge this is really a case of terrorism." Commenting on the testimony that one of the men had left the camp after four or five days, the judge said: "It has the ring of credibility to me that he was trying it out, didn't like it and left it." The judge ruled that "the government has failed to establish" that either man posed any danger. He also rejected a suggestion the men would flee to Pakistan if freed.

Disappointed with the judge's ruling, the government attorneys have said that they may consider charging the men with giving "material support" to a terrorist group. If that doesn't work, they can threaten to call them "enemy combatants." Mr. Ashcroft's strategy is brilliant if it's guilty pleas you want. It's less good if justice is your goal.