Could the Moussaoui trial get derailed because of the unavailability of captured Al Qaeda members who Moussaoui might want to call as defense witnesses? In U.S. Sees Threat to Terror Trial, published in today's New York Times, the answer according to Government officials and legal experts is "quite possibly."

Moussaoui has a Sixth Amendment right to confront the witnesses against him and to seek out and call witnesses on his own behalf. Ramzi Binalshibh, captured in Pakistan, has been in U.S. military custody since September where he continues to be interrogated.

"The officials said defense lawyers acting on Mr. Moussaoui's behalf were demanding access to the captured terrorists for interviews and trial testimony, notably Ramzi bin al-Shibh, who was arrested in Pakistan last month. Mr. bin al-Shibh, a 30-year-old Yemeni man, has been described by the United States as a ringleader of the Sept. 11 attacks. But the officials said the government was refusing access on national security grounds."

"That has provided the court-appointed defense team with a powerful legal argument that Mr. Moussaoui and other Qaeda defendants cannot receive a fair trial, since they are being deprived of their constitutional right to interview witnesses whose testimony might demonstrate their innocence."

"The officials said the issue had been the subject of secret hearings and a flurry of secret court filings in recent weeks in the Alexandria courthouse, where Judge Leonie M. Brinkema has sealed the record on the issue out of concern that publicity could lead to the inadvertent release of classified information."

Moussaoui's Indictment suggests that Binalshibh should have extensive knowledge about Moussaoui's involvement or lack of involvement in the Sept. 11 attacks.

"The indictment identifies Mr. bin al-Shibh repeatedly, both by his real name and a code name, Ahab Sabet, and charges that he was a key member of a terrorist cell in Hamburg, Germany, that carried out the Sept. 11 attacks. Specifically, the indictment says that Mr. bin al-Shibh wired $14,000 to Mr. Moussaoui from Germany in August 2001."

"The law enforcement officials said the controversy about the witnesses was almost certainly a factor in Judge Brinkema's decision last month to delay Mr. Moussaoui's trial by nearly six months, to next June. In her order, she referred, somewhat cryptically, to "compelling reasons justifying an extensive continuance of pretrial and trial proceedings."

We predicted this exact issue would arise back on September 18. Our other detailed discussions of the effect of Binalshibh's capture on the Moussaoui case are here and here.

As we said in some of our earlier posts, another option for the Government is to charge Binalshibh in federal court though a Superseding Indictment against Moussaoui that adds Binalshibh as a co-conspirator in the September 11 attacks. Since Binalshibh would have a 5th Amendment right to remain silent, Moussoui would not have the right to call him as a witness at a joint trial.

In order for Moussaoui to call Binalshibh as a witness if Binalshibh were charged as a co-conspirator in the same case, Moussaoui would have to move for a separate trial, and would have to make a compelling showing that Binalshibh had information that would exculpate Moussaoui. Moussoui would have to submit an affidavit from Binalshibh stating that not only did Binalshibh have such information but that he was willing to testify to it at a separate trial. If Binashibh were charged in federal court, he would have lawyers appointed to represent him. We think it's unlikely Binalshibh's lawyers would allow him to provide such an affidavit for Moussaoui.

We like this option because it means Binalshibh would not become the subject of a trial by secret military tribunal and it would result in his being provided with counsel and a trial that is open to the public.

The Buffalo Six were indicted today on charges that they provided material resources to the terrorist organization Al Qaeda.

Five of the six were denied bond at a hearing last month. The sixth was ordered freed on a $600,000 bond with stringent conditions. He is still in jail as he has not yet been able to meet the conditions of his bond.

Today's Indictment sets out the men's purported illegal acts, stemming from their attending an Al Qaeda training camp in 2001:

"The government alleged the men received basic weapons training in Afghanistan, attended lectures on suicide bombings and were addressed by Osama bin Laden, one of the most wanted men in the United States even before the plane attacks."

The Government's postion, which will be a key point of contention during future proceedings, is that attending a terrorist camp to receive training violates the 1996 law against providing material support and resources to a terrorist organization.

The defense likely will argue that their attendance at the camp is protected activity under the First Amendment's guarantees of freedom of speech and association.

The bottom line is some or all of the men attended an Al Qaeda training camp in Afganistan, stayed for up to five weeks, and then came home and nothing happened thereafter. One of the six left after 10 days. If convicted, the men face sentences up to 15 years.

All six maintain their innocence and four of the six deny going to Afganistan or attending the training camp.

In a statement today, "U.S. Attorney Michael Battle emphasized that "the investigation has failed to establish any immediate threat to the western New York area."

Law Professor and Author David Cole writes in a New York Times op-ed today called Fight Terrorism Fairly:

"Because of an overly broad statute, the government wins this case no matter which version of the story is true. The Antiterrorism and Effective Death Penalty Act, passed in 1996, makes it a crime to provide "material support" to any group designated as "terrorist" -- without regard to whether the support was actually intended to further terrorist activity."

"This law, rarely invoked before Sept. 11, is now the cornerstone of the Justice Department's domestic war on terrorism. In addition to the Lackawanna case, the government has relied on the law in its prosecutions of Lynne Stewart, the lawyer charged with passing messages from her client, Sheik Omar Abdel Rahman, to an Egyptian terrorist group; James Ujaama, who is accused of conspiring to help Al Qaeda set up a training camp in southern Oregon; and John Walker Lindh, who pleaded guilty to aiding the Taliban."

"...It is always tempting, when faced with a serious threat, to make it easier for the government to prosecute suspects for who they are rather than what they do. But as we have learned, doing so inevitably sweeps in the innocent and chills legitimate political activity."

A writer with attitude recaps the Buffalo Six Bond Hearing with a view of the proceedings we haven't read anywhere else, and from our experience attending and participating in some media-frenzied cases the past several years, we think he's right on target. Thanks to Jack at NACDL for sending it to us.

Washington Post reporters Dan Eggan and Steve Fainaru today write that prosecutors are using the provision in the 1996 Anti-Terrorism law that prohibits providing material services to a terrorist organization as their key strategy in terror cases, including those of John Walker Lindh, the Buffalo Six, Oregon Six and James Ujaama in Seattle.

Eggan and Fainaru report:

"Many defense attorneys and civil liberties advocates contend the law is worded so broadly that even unknowing contributions to groups the government labels terrorists can be prosecuted. Two federal judges in Los Angeles, in separate cases, have declared all or parts of the law unconstitutional."

"David Cole, a Georgetown University law professor who has participated in a legal challenge to the statute, maintains that the material-support ban is dangerously vague and could easily be used against people engaged in lawful activity."

"This law is so broad it would make it a crime for a Quaker to send a book on Ghandi's theory of nonviolence to the leader of a terrorist group," Cole said. "It essentially resurrects the guilt-by-association philosophy of the McCarthy era."

"Lee A. Albert, a law professor at the University of Buffalo, said the Lackawanna case will be a significant test of the statute's reach. Even though the defendants may have accepted training, he said, there is no public evidence that they actually provided "material support" to al Qaeda."

We believe the law does not encompass an individual who volunteers for military training. We don't think that constitutes providing material support or resources or that it fits withing the definition of providing "personnel" or "training." We think there is a big difference between obtaining training and providing training, and providing one person, namely one's self, and providing "personnel."

See Section 9-91.100 of the U.S. Attorneys' Manual instructing prosecutors how to apply the law:

Federal officials investigating the September 11 attacks are publicly speculating that five, not four attacks were planned for September 11, and that Ramzi Binalshibh, the former roomate of Mohammed Attah arrested a few weeks ago in Pakistan, may have been the intended fifth pilot. The speculation is that he would have led a fifth team in an attack on the White House.

This is quite a change from the Government's prior theory that Binalshibh was supposed to be the 20th hijacker on one of the four September 11 flights until he couldn't get a visa, which resulted in Moussaoui being picked to take his place. The new theory has Binalshibh as the leader of a fifth hijacking group intending to attack the White House but the plan was aborted when Binalshibh couldn't get his visa.

The sources for the new theory are John Walker Lindh and other detainees, but not Binalshibh.

"...Mr. bin al-Shibh's role in the plot was a main topic of his interrogation at a secret military base abroad. Military officials have asked Mr. bin al-Shibh about organizational changes in Al Qaeda since the Sept. 11 attacks and about plans for further attacks."

"The officials said Mr. bin al-Shibh has provided only fragmentary information about the hijackings and Al Qaeda's activities since the war in Afghanistan. The officials said Mr. bin al-Shibh had not said he planned to lead another hijacking group."

Sounds to us like the Government is still grasping at straws trying to fit Moussaoui and Binalshibh in the September 11 picture.

A federal magistrate today ordered the release of October Martinique Lewis, one of the six Oregon defendants charged with being part of a terror cell.

The Magistrate Judge found that the Government failed to sufficiently establish that Lewis was either a flight risk or a danger to the community. It appears that the Government has requested a review hearing by a Federal Judge, which will be held Friday.

"Lawyers for the defendants and their relatives maintain that the government is overreaching and that the group -- all Muslims, five of them U.S. citizens -- wanted to work for or support humanitarian groups in Afghanistan."

"Today at Lewis's detainment hearing, prosecutors offered the magistrate some of their evidence, reading from e-mail messages sent between Lewis and Battle, whose own detainment hearing was postponed until Tuesday."

"The e-mails, however, were vague and their incriminating evidence in question. None of the e-mails specifically mentioned Afghanistan, bin Laden or the Taliban. Instead, the electronic correspondence referred to "you know who."

The Government has alleged that Lewis wired hundreds of dollars to her ex-husband overseas who was trying to enter Afganistan. We reported the details of the case here.

18 people have now been arrested on terrorism related charges in the past six weeks.

Updated and bumped up from this afternoon:

U.S. Magistrate Judge H. Kenneth Schroeder granted bail to only one of the defendants in the Buffalo Six Terror case.

The Judge granted bail of $600,000 to Sahim Alwan, 29, who cooperated with the FBI and established to the Court's satisfaction that he tried to leave an al Qaeda training camp in Afghanistan after 10 days in the spring of 2001 by pretending to have injured his ankle.

The Judge imposed the strictest conditions on Alwan that we've ever heard of:

He is under house arrest except to go to work; he is subject to around the clock electronic surveillance and his whereabouts will be monitored by satellite using the Global Positioning Satellite System. He is not allowed to use a telephone, computer, pager or fax machine or access email. If his job requires him to use a computer, it can only have work related software on it and the Probation Department will install monitoring equipment on it so that it can track what he does on it.

He has to have two telephone lines in his house, one which he cannot use but will be wiretapped 24/7 by the Government. The other line will not be subject to recording, but have a pen register device attached to it and may only be used by Alwan to phone his lawyer and the Probation department.

Alwan's attorneys are prohibited from relaying any information from third parties to him, without prior approval of the Government attorneys.

Alwan will have to pay the cost of all the monitoring. He will not be eligible for release until he posts either $600,000 in cash or real property worth $600,000 after deducting any encumbrances, and until the Probation Department has installed all the monitoring equipment.

What happens if Alwan can't afford all this? We think the Judge must reconsider and modify the conditions to something he can afford. Having found that Alwan is entitled to be released on bail, 18 USC 3142© provides:

"(2) The judicial officer may not impose a financial condition that results in the pretrial detention of the person.

(3) The judicial officer may at any time amend the order to impose additional or different conditions of release. "

As to the other five defendants, the Judge found ""If the defendants are or have become disciples of al Qaeda and believers in self-destruction as a legitimate means of causing harm to others, there are no conditions that could be imposed that would deter such act."

The Judge also rejected a defense argument that the 1996 law that prohibits providing material support to a terrorist organization was unconstitutional. The Judge disagreed with the Ninth Circuit which ruled the statute unconstitutionally vague and agreed with the Judge in the John Walker Lindh case who found the statute constitutionally valid:

"I accept the reasoning of the District Judge in Lindh and conclude that one can be found to have “provided material support or resources to a foreign terrorist organization” by offering one’s services to said organization and allowing one’s self to be indoctrinated and trained as a “resource” in that organization’s beliefs and activities. Therefore, for purposes of deciding the government’s motion to
detain the defendants herein, I reject the contention of unconstitutionality of the statute put forth by the defendants."

The Oregon defendants may meet with greater success in challenging the law as they are within the 9th Circuit. The Buffalo defendants will have another opportunity to raise this issue in their case before the District Judge assigned to try the case.

Finally, the Judge rejected the defense claim that the statute prohibiting providing material resources to a terrorist organization was not a crime of violence. Again, the Judge quoted the finding by the Judge in the John Walker Lindh case:

"I conclude that 18 U.S.C. § 2339B constitutes a crime of violence. It takes little imagination to conclude that providing material support and resources to a terrorist organization creates a substantial risk that the violent aims of the terrorists will be realized. Violence, therefore, is intrinsic to the crimes with which [the defendants are] charged. United States v. Lindh, 212 F. Supp.2d 541, 580 (E.D.Va. 2002)."

You can read the full text of the Judge's decision here. For a recap of the factual events, CNN has this article.

Our prior posts outlining what the Judge was required to consider in making his decision are here and here. Our recaps of the evidence against the men are here and here.

The UPI reports that one of the two Oregon terror suspects still at large has been arrested in Malaysia.

Ahmed Ibrahim Bilal, age 24 and a student at the International Islamic University in Kuala Lumpur, surrendered to officials and will be immediately deported to the U.S.

A Bail Hearing is scheduled for Tuesday on the Buffalo Six Terror Suspects.

We think he'll cut some loose, if not all.

The Bureau of Prisons will choose the institution where John Walker Lindh will serve his twenty year sentence. The Miami Herald outlines the options, and what Alan Ellis of Sausilito, a prison specialist and attorney consulting for the Lindh defense team, is lobbying for.

Normally with a twenty year sentence one goes to a maximum security institution and works his way down to less secure facilities over the years. Lindh, however, could be in serious danger from other inmates.

The Bureau of Prisons tries to put inmates near their families, but the final decision is up to them, and all a Judge can do is make a recommendation to the agency. If BOP doesn't grant the judge's recommendation, it will write a letter to the Judge and explain its reasons, but there is no way to enforce the recommendation.

Lindh wants to go to California to be near his parents. He's not eligible for a club fed or a camp. His first choice is the low level security facility at Lompoc, near Santa Maria and Santa Barbara.

If he doesn't get that choice, other possibilities are a medium security institution at Terminal Island, near San Pedro; a high security penitentiary also in Lompoc, or another in Atwater, near Merced.

Our bet is on Alan Ellis, author of the Federal Prison Guide Book and a low or medium security level facility.

The Los Angeles Times today covers the case of the Oregon suspects charged with providing material support to Al Qaeda--and concludes the Indictment "is more suggestive of bumbling, would-be holy warriors than of soldiers training for deadly missions."

"Money for their alleged scheme came from associates using real names and easily traceable wire transfers--with amounts typically just a few hundred dollars. They took target practice openly at a rural gravel pit, attracting the attention of a deputy sheriff."

"Authorities explain that they have adopted a deliberate strategy of preventive arrests--even if the evidence is imperfect--in the hopes of disrupting terrorist plans."

This is an approach that is of just concern to civil libertarians. Many believe that the recent wave of arrests is the product of a government determined to target Muslims for their unpopular political beliefs. Related to this topic, read the Washington Post editorial today, Defaming Islam.

"While everyone agrees that fighting terrorism must be a top priority at all levels, there is no evidence that any of these U.S. citizens was planning an attack," said Peter Schey, executive director of the Center for Human Rights and International Law in Los Angeles. "And one has to question the arrests of a handful of alleged sardines while the big fish are apparently swimming away."

It seems we are moving towards prosecuting beliefs and thoughts instead of actions. The criminal justice system is designed to punish crime, not to prevent it. Yes, we all want to prevent future attacks. But arresting people before they've committed an unlawful act, and in the abscence of concrete evidence they are attempting or conspiring to commit a crime is not the way to do it.

In the Portland case, there is no charge that the suspects planned to attack America--or that they knew any members of Al Qaeda. The suspects are five Americans and one naturalized citizen. The Times says it is not clear any of them ever made it into Afganistan, where the Government says their goal was to fight with Al Qaeda after September 11. Yet, as the Times points out, "that alleged desire--and the suspects' efforts to act on it--is at the core of the case against them."