New York Times
September 4, 2004
WASHINGTON, Sept. 3 - Justice Department investigators have sought to have senior federal prosecutors take polygraph examinations in an effort to determine who leaked the name of a confidential informant in a Detroit terrorism case that has become a major embarrassment for the department, officials said Friday.
At the same time, leading Congressional Republicans have raised concerns about the leak of the informant's name and about the department's handling of the case, which led a federal judge in Detroit this week to throw out the terrorism convictions of two Arab immigrants accused of being part of a cell there.
In a pointed letter sent to the Justice Department last month and obtained this week by The New York Times, Senator Orrin G. Hatch of Utah, chairman of the Senate Judiciary Committee and regarded as the department's strongest advocate in Congress, questioned whether officials at the agency "are fully cooperating" in an investigation into the leak, "including submitting to polygraphs."
Congressional officials said they were concerned that the department, which after an investigation has placed blame for the collapse of the Detroit case largely on a single prosecutor, Richard G. Convertino, appeared to have resisted the idea of requiring polygraph examinations for a small group of officials who had access to the name of the informant.
The informant's name was published by The Detroit Free Press in January, in an article that gave a detailed account of accusations of ethical misconduct on the part of Mr. Convertino, the lead prosecutor in the case.
Among the accusations, which he has denied, was that he had improperly persuaded a judge to reduce the sentence of the drug dealer who served as the informant and who helped in translating Arab-language tapes seized in the defendants' apartment.
The informant, an Arab man in his 30's, said then in an interview with The Times that the disclosure of his cooperation with the Justice Department had caused him to fear for his life, forcing him to sleep in his truck for two nights. He later fled the country and returned to the Middle East as a result of the episode.
Justice Department officials in Washington and Detroit declined to discuss the status of the leak investigation, which is being conducted by the department's inspector general. Asked whether prosecutors had agreed to take lie-detector tests, a spokeswoman for the United States attorney's office in Detroit said Friday, "I can't comment on that."
In a court filing this week, Mr. Convertino was accused by the Justice Department of withholding from the defense numerous pieces of evidence that could have influenced the outcome of the terrorism case. The court threw out the convictions the next day.
Mr. Convertino, who was removed from the case late last year, has vigorously denied that he knowingly withheld any evidence and maintains that the Justice Department is retaliating against him because he cooperated with a Congressional investigation in an unrelated case. He says that he himself was victimized by the leak, which publicized information from his personnel file as well as the name of the informant.
And his lawyer, William Sullivan, said in an interview on Friday that some of the same prosecutors in Detroit whom he suspects of trying to discredit Mr. Convertino by leaking the name of the informant had taken part in the investigation into how the terrorism prosecution was conducted. He said those officials should have been recused from that inquiry.
The inspector general's investigation into the disclosure of the confidential information is continuing, and in fact is near conclusion, a department official said.
Such investigations are notoriously difficult and time-consuming to resolve; a criminal investigation into the disclosure of an undercover C.I.A. officer's identity to the columnist Robert Novak and other journalists is now in its ninth month.
Senator Hatch sent his letter to the Justice Department on Aug. 4, nearly a month before the Detroit terrorism case finally collapsed. In it, he said that he "was proud of the department's hard work and successful prosecution of the Detroit terrorist cell" but that he was troubled by the deterioration of the case. He said he was also concerned about reports that Mr. Convertino and other members of the prosecution team had faced retaliation by the department as a result of conflicts over the course of the prosecution.
The senator urged that Mr. Convertino, who himself is being investigated by the department's Office of Professional Responsibility, "be treated fairly," and he asked to know "what protections are in place for O.P.R. investigators and staff to ensure that investigations are not used to further political bureaucratic and retaliatory measures."
Mr. Hatch's letter was unusual both for what it said and for who said it, because he has been an outspoken defender of the department and Attorney General John Ashcroft. The senator's office declined to discuss his concerns on Friday.
Other lawmakers have also raised concerns. In joint letters to the department in April and May, Representatives F. James Sensenbrenner Jr., the Wisconsin Republican who heads the House Judiciary Committee, and John Conyers Jr. of Michigan, the panel's ranking Democrat, questioned what sanctions could be applied to a federal employee who disclosed the name of an informant and whether steps had been taken to protect the Detroit informant after his identity was disclosed.
In a June response to Mr. Sensenbrenner and Mr. Conyers, the department did not discuss details concerning the Detroit informant but said that in general, if an informant's identity is disclosed, "an immediate action would be removal of the informant from any operational or intelligence-gathering roles, followed by temporary or permanent relocation of the informant and his/her family, if applicable."