Wednesday, April 28, 2004

Patriot Act follies

When it comes to prosecuting supposed terrorists under the Patriot Act, the Justice Department's record is starting to look less than stellar. The only real success it has had prosecuting suspects under the law came in the cases involving the "Portland Seven" and the "Buffalo Six" -- and as Zizka noted at TalkLeft, the Portland pleas largely involved plea bargains that suggested the men were not the most serious of threats, as was the case in Buffalo as well.

Now, in a case that was supposed to showcase the Patriot Act's real value, federal prosecutors' evidence against a University of Idaho student named Sami Omar al-Hussayen charged under that act with secretly abetting Al Qaeda is turning out to be largely ephemeral.

According to the Idaho Statesman, Judge Edward Lodge -- a Republican appointee and noted conservative -- is on the verge of throwing out the government's most serious charges because prosecutors are apparently concocting evidence from thin air:
Lodge told attorneys on both sides he will allow some foundation evidence that prosecutors already entered on a specific rule of evidence. The rule requires prosecutors to ultimately show co-conspiracy between Al-Hussayen and others to provide material support and resources for terrorism.

But if prosecutors don't prove that conspiracy to the judge's satisfaction, "this case is out as far as those charges go," Lodge said.

"I am not going to be led into a trap here," Lodge said, before chastising the lawyers on both sides for arguing about what should be admitted as evidence. "We are way out there (with evidence)."

Last week, Lodge already disallowed prosecutors' attempts to show the jury a Web page encouraging suicide bombings, saying the government had to prove that al-Hussayen created the page or endorsed its contents.

What's particularly disturbing about this trial is that prosecutors are proceeding with it in spite of the fact that another federal judge already ruled that the portion of the Patriot Act under which they are charging al-Hussayen is unconstitutional.

As Tim Egan's report in the New York Times explained:
Earlier this year, Judge Audrey B. Collins of the Federal District Court in Los Angeles, struck down a part of the antiterrorism law being used in this trial, ruling that it was overly broad and vague. But Judge Collins did not extend her ruling beyond the one case in California.

... In that case, the judge ruled on behalf of several humanitarian groups that wanted to provide support to the nonviolent arms of two organizations designated as terrorist in Turkey and Sri Lanka. Judge Collins wrote that "a woman who buys cookies at a bake sale outside her grocery store to support displaced Kurdish refugees to find new homes could be held liable" if the sale was sponsored by a group designated terrorist.

There may be other reasons that the Justice Department is pushing so hard on this case despite its evidently flimsy foundation: It's trying to make an example out of the Patriot Act's key critics.

Two members of Idaho's all-Republican congressional delegation, Rep. Butch Otter and Sen. Larry Craig -- both of whom have strong libertarian streaks -- have been working hard to overturn key portions of the Patriot Act, particularly its "sneak and peek" provisions, which allow federal investigators to conduct searches without the property owner's or resident's knowledge and with warrants delivered afterward.

Craig is the co-sponsor, along with Illinois Democrat Dick Durbin, of the SAFE Act, which would delete certain egregious provisions of the Patriot Act and replace them with measures which would still enable federal investigators to pursue terrorists without trampling on citizens' basic rights. It will also end, one can hope, the Justice Department's outrageous use of the Patriot Act provisions to pursue cases that have nothing to do with terrorism. (For those interested, here's a report on the efforts to reform the Patriot Act.)

More than a few observers have concluded that the Idaho case is proceeding in no small part because the Bush administration hopes to humiliate and punish Craig and Otter for straying from the party line. But in the process, it could well wind up hoist on its own petard.

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