Terrorism Case Shows U.S. Flaws in Strategy
By Richard Serrano and Greg Miller
Los Angeles Times
October 12, 2004
DETROIT — When federal agents went through the apartment door just before
sunrise on Sept. 17, 2001, Glock automatics at the ready, what they found
caused government officials all the way to the top of the Justice Department to
snap to attention.
Less than a week after Islamic extremists attacked
the World Trade Center and the Pentagon, here were three North African Muslim
men caught in a barren apartment with airport security passes, forged passports,
videotapes of American landmarks and a crude sketch labeled in Arabic an
"American base in Turkey."
They also had virulent jihadist tapes,
including a rant against Christians and Jews that said, "Allah, kill them all.
Don't keep any of them alive."
Atty. Gen. John Ashcroft proclaimed
the breakup of a dangerous terrorist cell. Less than two years later, Detroit
yielded the first trials and convictions of alleged terrorists in the United
States after Sept. 11.
But the seemingly brilliant prosecution soon
T oday, the terrorism convictions have been dismissed
because the government withheld evidence that could have helped the defense.
The Justice Department is investigating its chief prosecutor in the case,
Richard G. Convertino. He, meanwhile, is suing the department.
waters are so muddied that it may never be known whether the defendants were
involved in terrorism or not. Even now, prosecutors admit they cannot show that
the defendants had any contact with a terrorist organization, and they don't
know if any attack was planned.
And the Detroit case laid bare a problem
in the government's basic strategy. To forestall attacks, officials have
adopted the domestic equivalent of President Bush's doctrine of preemptive
action. But prosecuting suspects before they strike forces the investigators
into the murky world of intent, where pitfalls abound.
Evidence can be
ambiguous, solid testimony scarce. It's up to prosecutors to distinguish
between terrorists and hapless immigrants with phony p apers.
an expression that you sometimes fall in love with your case," Keith Corbett,
Convertino's trial partner, said. "There was just so much emphasis in trying to
address the war on terror."
The problems grow when officials are
fighting with one another instead of working together. And the Detroit case was
rife with personal animosity. To Convertino, politically motivated Washington
officials had a vendetta against him. To Ashcroft's Justice Department,
Convertino was an overzealous prosecutor who ignored defendants' rights.
U.S. District Judge Gerald E. Rosen, who handled the case, warned that the war
against terrorism must never be an excuse for trampling on the
"Unfortunately," he added, "that is precisely what has
occurred in the course of this case."
When federal agents went to the two-story duplex
south of downtown Detroit, they were seeking Nabil al-Marabh, No. 27 on a
terrorism wat ch list. Instead they found three immigrants from North
Karim Koubriti answered the door in boxer shorts and a T-shirt.
He said Al-Marabh had moved out.
Ahmed Hannan and Farouk Ali-Haimoud
were sleeping on the floor, their clothes stored in trash bags.
spotted security badges from Detroit Metropolitan Airport, fraudulent ID cards
and other phony documents. In a day planner, they found a notation in Arabic
that read, "American base in Turkey," and a sketch that some analysts said
depicted an airport flight path. Videotapes showed such landmarks as
Disneyland. The three men insisted that the day planner and tapes were not
theirs. They described themselves as itinerant workers who washed dishes at the
They were arrested, and other arrests followed.
Hmimssa, whose photo had been found in the apartment, was picked up in Cedar
Rapids, Iowa. Another associate, Abdel-Ilah Elmardoudi, was grabbed off a bus
in North Carolina carrying $90,000 in cas h and fraudulent documents.
The suspects, in their 20s and 30s, were charged with providing material support
or resources to terrorists — all but Hmimssa, who became the prosecutors'
Convertino came to believe that the defendants were scouts
for terrorists. He developed evidence suggesting that Ali-Haimoud had planned
to send money and weapons to "the brothers in Algeria," and that Hannan had
memorized the layout of the U.S. Embassy in Amman, Jordan. There were
indications that Elmardoudi had gone to Turkey using aliases.
In many ways, Convertino is
a prosecutor cut in the Ashcroft mold: religious and righteous, patriotic but
The 42-year-old son of Italian immigrants, he is a devout
Catholic and father of five. He is known for gestures of generosity —
collecting money to buy winter gloves for the homeless — as well as a
tenacity that is not confined to the courtroom. He keeps a picture of Gen.
George Armstrong Custer in his office.
"What's wrong with being an
admirer of Custer? He only lost once," Convertino quipped in an
A cigar aficionado, he is a favorite of Detroit FBI agents,
who like his courtroom drive. Colleagues say he is well prepared and "quick on
his feet." But Convertino had an abrasive edge. "Rick went out of his way to
antagonize people," a Detroit colleague said. "If you disregarded him, he would
dismiss you as an idiot."
Those who did battle with Convertino
saw an even more troubling side. William Swor, who defended Elmardoudi,
described Convertino as "someone who cuts corners."
was daunting, with numerous trips in the United States and overseas, and
hundreds of Arabic documents and tapes to translate. In Turkey, Convertino
climbed atop a warehouse for a better view of the air base.
relations between the Detroit prosecutors and Washington officials began to
With the case in the national spotlight, Washington's terrorism
task force, led by Barry Sabin, was soon immersed in the activities of
Convertino's team. According to the prosecutor, demands from Washington came
With the trials just weeks away, Sabin decided the
indictment needed reworking. He ordered prosecutors to clear their calendars
for a meeting. When he arrived, the atmosphere grew testy. After Sabin asked
where prosecutors had gotten the legal reasoning in one part of the indictment,
Convertino replied sharply.
"I pulled it out of my
Later, Sabin set the Detroit prosecutors fuming by
assigning department lawyer Joseph Capone to monitor the trial. "I have never
seen anything approaching this level of micromanagement," Corbett e-mailed the
U.S. attorney in Detroit, Jeffrey Collins.
Convertino and Corbett
insist that they tried to include Capone, but said all he seemed to want to do
was sit back in the courtroom and take note s for Sabin.
Capone says he
was frozen out.
A high-ranking Justice Department official said
Convertino "ignored things he was told to do by us."
"He really, really,
really wanted to have a piece of 9/11," the official said. "He wanted to be the
trial began March 27, 2003.
Government experts explained some of the
drawings as target sketches of the air base in Turkey. Other experts said the
videotapes of landmarks were the kind terrorists made when casing a
On the stand, Hmimssa described dangerous schemes he said his
former associates were hatching. He said he bowed out when he began to suspect
them of plotting terrorism.
But as defense lawyers cross-examined
Hmimssa, Capone grew concerned. He knew prosecutors had a letter from a Detroit
jail inmate saying Hmimssa had told him of lying to federal agents in an earlier
incident. If prosecutors had disclosed it, why wasn't the defens e using the
letter to impeach Hmimssa?
The way Capone had learned of the letter
suggested how much bad blood surrounded the case. Another Detroit prosecutor
had told Capone about it, but instead of discussing it with Convertino, Capone
had gone to their superior, Alan Gershel, head of the criminal division in
The inmate's letter would later explode into an issue that
destroyed the prosecution, but for now it was just a sign of mistrust inside
what was supposed to a team.
Meanwhile, Convertino closed strong. "This
is a dangerous group," he told jurors. "This was a pre-operational cell, a cell
that was stopped, a cell that was caught
. These people belong in prison."
On June 3, 2003, Elmardoudi and Koubriti were convicted of
terrorism-related charges, as well as ID fraud. Hannan was acquitted of charges
linked to terrorism but convicted of ID fraud. Ali-Haimoud was acquitted on all
Publicly, Convertino's bosses in Detroit and Washington hailed
the v erdicts, but a month later Convertino and Corbett were summoned to
separate meetings with U.S. Atty. Collins.
Corbett expected a pat on
the back, but emerged red-faced.
With Convertino, Collins started out
praising the closing arguments, then got to the point. As Convertino described
it, Collins said, "I've been ordered to reprimand you" for not cooperating with
late summer, Convertino got a call from an aide to Sen. Charles E. Grassley
(R-Iowa), chairman of the Senate Finance Committee, asking Convertino to testify
about identity fraud.
Alarms went off at Justice. Grassley was a fierce
critic of the department and an ardent protector of whistle-blowers. The day
after telling his boss about the Grassley invitation, Convertino said, he was
taken off the terrorism case.
When Grassley found out, he complained to
Ashcroft about apparent retaliation. Then he subpoenaed Convertino to appear
before his c ommittee.
When Convertino testified, Justice Department
officials sat behind him. He did not criticize Washington, but he was already
seen as "off the reservation," Convertino said later.
Collins had assigned three lawyers to review Convertino's cases dating back to
The terrorism case was reassigned to Assistant U.S.
Atty. Eric Straus. And as Straus reviewed the files, he turned to Capone, who
pointed to the letter written by the inmate, gang leader Milton "Butch" Jones,
who was accused of drug dealing and murder.
Jones and Hmimssa had been
in the same cell block. Jones said Hmimssa told him "how he lied to the FBI,
how he fooled the Secret Service agent on his case."
Convertino got a
copy of the letter more than a year before trial. But he and Corbett chose to
view Jones as trolling for a deal. Jones was not credible, they decided, and
they did not give his letter to the defense.
When Straus saw the letter
after the trial, he told hi s bosses and attorneys for the defendants. They
sought a new trial. Outraged, the judge ordered a hearing to sort the matter
Last December, prosecutors and defense lawyers crowded into Rosen's
courtroom. Also on hand were Capone, Hmimssa and Jones.
to talk. Hmimssa admitted talking to Jones — "We played chess, we
exchanged books" — but denied telling Jones he had lied to the FBI or
Gershel told the judge he had ordered the Jones
letter handed over before the trial ended. But Corbett and Convertino said they
never got such an order.
Besides, during cross-examination, Hmimssa had
admitted lying to federal agents.
At the close of the daylong session,
Rosen put off sentencing Elmardoudi and Koubriti, saying, "I'm going to get to
the bottom of this."
In February, Ashcroft appointed a Cleveland
prosecutor, Craig Morford, to investigate whether other potentially exculpatory
evidence had been withheld. Morford reported f inding a pattern of
At trial, the prosecution had relied
extensively on an Air Force officer who said she was positive the day planner
sketches were diagrams of the air base in Turkey. But Morford found a report in
prosecution files that suggested that other Air Force officials saw the diagrams
An Air Force special agent had described some of the
interpretations as "highly speculative." The CIA had termed the sketches
"In its best light," Morford told Rosen, "the
record would show that the prosecution committed a pattern of mistakes and
oversights that deprived the defendants of discoverable evidence."
Speaking for the government, Morford recommended dismissing the terrorism
Convertino disputes many of Morford's findings. He says he
did not learn of the Air Force and CIA doubts until after the trial.
"This is retaliation; it's an absolute shame what they're
doing," Con vertino said. "It's more important to destroy me and destroy the
case than it is to fight the war on terrorism."
Last month, three days
after getting Morford's report, the judge dismissed the terrorism-related
convictions and ordered new trials on the ID fraud convictions. Defense lawyers
hope the remaining charges will be dropped.
The man the FBI originally went looking for
three years ago, Al-Marabh, had been found two days later working in his uncle's
Chicago-area liquor store.
He was detained on material witness warrants,
shipped to Brooklyn and Buffalo, N.Y.; Chicago and Detroit, and held for long
stretches without access to an attorney. Finally — like the vast majority
of post-Sept. 11 terrorism arrestees — he pleaded guilty to an
immigration violation and was deported.
Prosecutors concede that no
evidence was ever found connecting Al-Marabh with "any terrorist activity or