Patriot Act Freed Evidence on Al-Arian

TAMPA, FLA. (AP)–For nearly a decade, FBI intelligence agents had been tapping the telephones and intercepting the faxes of Sami Al-Arian and keeping secret what they knew about the professor’s suspected ties to Palestinian terrorists?even from their colleagues working a criminal case against the same man.

The full breadth of what the bureau knew about Al-Arian and others connected to the professor’s charity, Muslim school and think tank was finally revealed in the spring of 2002. FBI Agent Joe Navarro walked into a briefing on the case at the Tampa office and stunned his colleagues with the information.

“When the wall did come down, it was ‘Holy molly! There’s a lot there!'” said Navarro, who retired from the FBI earlier this year.

Navarro had worked both sides of the case, first in 1995 as an intelligence agent and then later on the criminal side, carefully following the rules that banned the use of intelligence information in criminal cases.

Navarro said he had to compartmentalize in his own mind what he knew and from what source. He said he was careful to not share intelligence evidence?even with the agent sitting next to him?when he was assigned to the criminal case in 2001.

The Patriot Act, passed by Congress and signed by President Bush in the weeks following the September 11 attacks, changed all that.

Racketeering Indictment

“It was just one of those awesome moments when you realize how much there is,” Navarro said. “When you realize there is literally a room full?not a box full or a filing cabinet full?of evidence. It sort of shocks you.”

Now, nearly a year after Al-Arian and seven others were named in a 50-count racketeering indictment, the case is shaping up to be a test of the Patriot Act, the law which among its provisions granted the government greatly expanded surveillance and search powers in the aftermath of the September 11 terrorists attacks.

Attorney General John Ashcroft used the Al-Arian case as one of the successes of the Patriot Act as he toured the nation earlier this year in defense of the law.

Al-Arian, Sammeh Hammoudeh, Hatim Naji Fariz and Ghassan Zayed Ballut face trial in January 2005 on charges they used an academic think tank, a Muslim school and a charity as a cover for raising money for the Palestinian Islamic Jihad, which is believed to be responsible for the deaths of more than 100 people in attacks in Israel. Four others, including PIJ head Ramadan Shallah, have yet to be arrested.

The legal battle lines are drawn by Al-Arian’s defense team, which includes high-profile Washington attorney William B. Moffitt and Tampa attorney Linda Moreno and by Al-Arian himself, who for years has said he is being persecuted for his pro-Palestinian views. Al-Arian said the think tank he founded at the University of South Florida, his charity and his school were legitimate enterprises designed to aid Muslims and foster greater understanding between Americans and Arabs.

Moffitt has said he intends to challenge every aspect of the new law as the case heads to trial and has called the Patriot Act the product of a “frightened society,” overreacting to the horrific events of September 11.

“What we have done is precisely what the people who attacked us on 9/11 hoped we would do,” Moffitt said shortly after being hired this fall as Al-Arian’s attorney. “Even the notion it’s called the Patriot Act is an interesting idea.”

The debate over the use of the Patriot Act to secure an indictment against Al-Arian and the others is also being argued in other forums nationwide. Al-Arian is being held without bond at a federal prison while he awaits trial and could not be reached for comment for this report.

The American Civil Liberties Union has challenged the law as unconstitutional, arguing that that it violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.

Other civil rights activists and those concerned about how the Patriot Act might be used to target Muslims also have honed in on the Al-Arian case.

Samina Faheem, executive director of American Muslim Voice, the Fremont, Calif.-based activist group, first met Al-Arian more than two years ago and remains a critic of the government’s action against him.

“He’s a wonderful person, he’s compassionate, he’s concerned about civil rights for everybody,” she said.

“I don’t believe the charges against him are true until the government proves it to me in open court with open evidence with a fair trial and due process,” she said.

Al-Arian had earned a national reputation as a civil rights activist for Muslims and had been outspoken about the government investigation of him, his brother-in-law, and their colleagues?many of whom enjoyed a public reputation as being quiet scholars all the time the FBI was tapping their phones and intercepting their faxes.

But in a recently released FBI affidavit, case agent Kerry L. Myers said Al-Arian directed the terrorist fund-raising from Tampa and had been under investigation since 1993, when the FBI first received court authority to tap Al-Arian’s and Shallah’s telephone lines at their homes and offices.

The bugging was done under the Foreign Intelligence Surveillance Act, secured with secret documentation evidence and approved by a secret court. Foreign intelligence wiretaps are granted under lower standards than more commonly used criminal wiretaps.

The restrictions on the use of that type of evidence was created in a post-Watergate era when there were concerns the FBI could be used to spy on political enemies, rather than the intended targets of foreign spies and terrorists.

Over the years, the government acquired 152 wiretaps in the Al-Arian case, which generated more than 21,000 hours of intercepted telephone calls, prosecutors have said in court. Defense attorneys say it’s unusual for a criminal case to have more than two or three wiretaps.

Former government agents who spent years investigating Al-Arian tell of a frustrating, highly sensitive investigation hindered in part by the inability of intelligence agents to share what they knew. Further slowing the progress was the difficulty in finding translators who interpret the messages and to go through reams of documents later seized in FBI raids.

‘Half the Deck’

In 1995, the investigation’s existence became public and Al-Arian staunchly denied any involvement in terrorism. After September 11, he again became the focus of intense scrutiny and again denounced terrorism.

Then the Patriot Act came along.

“Everything changed,” said Barry Carmody, who was among the team of agents working the criminal case against Al-Arian in the early years and whose affidavit allowed for criminal searches of Al-Arian’s home and offices in 1995.

“We needed to be able to gamble with 52 cards, not half the deck,” he said. “It’s like having your best football players sitting on the bench when you are having your butts beat.”

One agent who knew the full gamut of the government’s evidence against Al-Arian and his brother-in-law, Mazen Al-Najjar, was William West of the former U.S. Immigration and Naturalization Service.

West was the lead agent in the effort to deport Al-Najjar, who was held for more than three years on the then-classified evidence linking both him and Al-Arian to the Palestinian Islamic Jihad.

Government agents and attorneys were sharply criticized for holding Al-Najjar, who was eventually deported months before Al-Arian and the others were indicted. Al-Najjar is named as an unindicted coconspirator in court documents.

“It was terribly frustrating because from the perspective of the classified information we could use,” West said. “We knew all along we were on the right track and we were pursuing the right people.”