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America’s Bungled War on Terror: Many Arrests, Few Convictions

By CAROLINE DREES

From Capitol Hill Blue: http://www.capitolhillblue.com/artman/publish/article_5321.shtml

The United States has arrested thousands of people on terror charges since Sept. 11, 2001, holding some for years without charge, but has seen one high-profile case after another collapse.

Critics say the government is paying for hasty, politically motivated accusations it cannot prove, while backers argue that the U.S. legal system is simply unsuited for the war on terror.

In the most recent collapse, the military dropped spy charges on Wednesday against Syrian-American airman Ahmad al Halabi, who had faced the death penalty on accusations of aiding and abetting the enemy through espionage at the U.S. prison camp at Guantanamo Bay, Cuba.

The Justice Department also said on Wednesday it had agreed to free U.S.-Saudi “enemy combatant” Yaser Esam Hamdi and return him to Saudi Arabia after holding him without charges — for long stretches incommunicado — for more than two years.

“I can’t remember a time when the government has taken it on the chin as often as this in a single area,” said lawyer Eugene Fidell, whose client, Army Chaplain James Yee, was accused in a separate Guantanamo Bay spy case before the military dropped all those charges.

Paul Rosenzweig, a legal expert at the conservative Heritage Foundation, said one reason for the government’s legal problems was the difficulty of using evidence gleaned from intelligence work, which is often classified or might only be considered hearsay in court, no matter how good the source.

“Our federal criminal legal system is not set up for terrorists,” he said. “Because these are important cases, we’re seeing more of the warts. When we look really hard at a really big case, we see that our judicial system is imperfect.”

WIDER PROBLEMS

But critics of government arrests and efforts to secure convictions in the war on terror say the problem is not the legal system. They say the crumbling cases prove prosecutors are being overzealous and sometimes sloppy in a bid to show the public they are serious about fighting terrorists.

“At the level of the individual cases … it probably reflects haste, overreaction, a desire to show how much you’re doing and not the usual degree of carefulness you would expect from federal prosecutors,” said Joseph Onek, senior counsel of the Constitution Project activist group, who was a senior justice official under President Bill Clinton.

Gerry Spence — whose Muslim client Brandon Mayfield was held for two weeks as a material witness in the Madrid train bombings before being released with an apology from the FBI — accused the U.S. government of profiling and failing to do its homework.

“Then when they begin to look at the facts, they find out that what they’ve done is charged good American citizens with crimes that they are not guilty of,” he said.

Critics also say Supreme Court rulings in June that placed the first limits on President Bush’s war on terror showed the administration had overstepped its bounds.

“One reason the government hasn’t succeeded in its overall strategy is because it was taking a position that was indefensible under U.S. constitutional law,” Onek said.

Jay Sekulow, chief counsel of the American Center for Law and Justice — which filed friend-of-the-court briefs in support of the government in three terrorism cases, including Hamdi’s — said prosecutors were not being hasty, but trying to balance national security needs with legal constraints.

He said the Supreme Court rulings, which said terror suspects could use the U.S. legal system to challenge their confinement, had created major obstacles for prosecutors.

“The chips are stacked against the government. The hurdle is set very high. I think the government is doing the best they can under the situation where they find themselves,” he said.

“Caution dictates that if you think you caught someone, or if you caught someone on the field of battle, to just let them go because you can’t gather the evidence quick enough could be very dangerous for the country,” Sekulow said.

© Copyright Reuters 2004

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