The Feds' 'Macaroni Noodle' Strategy

The embarrassing mistrial yesterday in the highly touted Holy Land Muslim charity trial in Dallas shows that there are, finally, limitations on how far the government can stretch the law and the facts in terror-support cases. But the defeat also raises the question of what the White House's new legal strategy will be in this war.

The outcome of the trial is encouraging. But the answer to question about the administration's strategy is disturbing.

In the Holy Land case, federal prosecutors couldn't manage to persuade a Texas jury -- I repeat, a Texas jury -- that five leaders of a Muslim charity provided support to a terrorist organization by sending money to charitable groups that were allegedly run by Hamas. "I thought they were not guilty across the board," one juror told the Associated Press. The case "was strung together with macaroni noodles. There was so little evidence."

So little evidence. A federal jury in Miami convicted Jose Padilla, the once-upon-a-time "dirty bomb" suspect, on little evidence. A federal jury in Virginia convicted Zacarias Moussaoui, the once-upon-a-time "20th hijacker," based on little evidence other than Moussaoui's own self-serving rants. Other lesser terror figures have been convicted for providing "material support" to terrorists based upon a broad reading of a law whose language was stretched even further after 9/11.

Sometimes, however, when you stretch a rubber band too far, it springs back. That's the lesson of the Holy Land non-verdict.

The feds were quick to say Monday that they intend to try the Holy Land men again. That would be a terrible mistake. The Justice Department should simply quit while it is behind. Such restraint would send a signal to the nation's Muslim community that the government is able to recognize legal overreaching when it occurs, and demonstrate to the rest of us that the feds are more interested in focusing their efforts upon core terror suspects -- like Binalshibh and Mohammed- - instead of bit players like the ones involved in the Dallas case.

Will the feds exercise this sort of discretion? Probably not. There probably will be a Holy Land II trial, and it probably will occur between now and the presidential election. If that occurs, don't be surprised if the next juror reaches the same conclusions the first jury did.

That would put a wrench into White House plans to showcase its legal victories against terrorism in time to secure another Republican White House. According to this story, the feds want to try "high-profile" terror suspects next year in advance of the presidential election. That means we may see (or not see) masterminds like Ramzi Binalshibh and Khalid Sheik Mohammed tried in Guantanamo Bay if and when the Supreme Court breaks the legal gridlock over military commissions.

These show trials will allow President Bush and the Republican nominee for president to proclaim to the electorate that the GOP can indeed successfully prosecute the legal battle against terrorism. It's a cynical but smart -- and increasingly necessary -- plan for the White House, especially given the results in the Holy Land case.

By Andrew Cohen |  October 23, 2007; 8:20 AM ET
Previous: Suddenly, Mum's Mukasey's Word | Next: Domestic Spying Gets Uglier


Please email us to report offensive comments.

This is why the Bush administration needs secrecy. They claim they need power to protect America, but when exposed to the light of day, their claims are laughed at. Like you said, by a Texas jury, no less.

Posted by: thebob.bob | October 23, 2007 10:33 AM

Is this just another example of the poor professionalism at DOJ?

Has Mukasey commented on the verdict? Has the president been asked about it?

Lots of questions, few answers.

Posted by: orloski | October 23, 2007 11:54 AM

The three cases mentioned, taken as a whole, go to show that strange things, indeed, may happen at the intersection of Truthiness and Beyonda-Reasonable-Doubt.

Posted by: Judgito | October 23, 2007 01:35 PM

Well a Texas jury didn't convict! But of course, we must keep in mind that the overall IQ of Texans improved when a certain Village Idiot moved to the White House.

Posted by: RedRat | October 23, 2007 01:54 PM

If the 9/11 terrorists were arrested on 8/11 would there have been enough evidence to satisfy Andrew and get a conviction?

We know that every large special interest group has a core set of supporters who will support terrorism and espionage against America in the name of their cause. It was true of supporters of the IRA, Jews who turned over secret U.S. documents to the Israeli government, Chinese who have pilfered our national secrets and now Muslims supporting the "charitable" work of Hamas. And in each case there is one consistant claim: that there people are not guilty of anything of ethnic identity.

Personally, I do not feel the need to placate the anxieties of the Muslim community, I would like to see them address my anxieties about their "jihad" against America.

People like Andrew object on civil rights ground to every military anti-terrorist effort because they claim it is a legal problem not a military one, then they claim no one is ever guilty.

Posted by: No one is ever guilty... | October 23, 2007 03:54 PM

Gee, No_one_is_ever_guilty, with Americans like you, who needs jihadists? You're ready and willing to give them what they want without firing a shot.

What exactly is your vision of an America worth preserving? Just an eternal grim persistence? Some of us at one time liked to think there was something more. Guess not.

Posted by: Chris Fox | October 24, 2007 12:35 AM

Lost in this is the fact that Hamas IS a charitable organization. Hamas won an election on that basis. But this administration is death on charity and does not wish any democracy anywhere, unless it elects one of our stooges.

Posted by: H R Coursen | October 24, 2007 09:00 AM

If arrested on 8/11, and the evidence showed the actual preparations and intent to do the deed, conviction would follow. Conspiracy needs "overt acts" leading to the crime, and by 8/11, if the Bushies had been paying any attention at all to terrorism, a case could and would have been made that would stick.

The recent rial was not about overt acts, but about giving money to an organization that appeared to be a charity; the proof that those giving the money knew tha money would be used for bad purposes is where this case seems to have faltered, as should all cases based on generalizations, not specifics.

Disclaimer: I only know about the case what I read in the papers and pixels.

Posted by: Sure it would convict | October 24, 2007 09:24 AM

Remember Richard Convertino? The former AUSA who withheld information in a Detroit terrorism trial, and then was indicted for obstruction of justice? He is on trial RIGHT NOW along with a former State Department official who was his witness.

This from USA TODAY 13 days ago:

Ex-prosecutor on trial over terror case

By Corey Williams, Associated Press Writer

DETROIT -- A former federal prosecutor's ambition led him to withhold evidence that could have helped the defense during the nation's first major terrorism trial after the Sept. 11 attacks, a government lawyer said at trial Wednesday.
Richard Convertino had designs on a seat in Congress and broke the law while prosecuting four North African immigrants accused of operating a "sleeper" terrorist cell, Daniel A. Schwager told jurors in opening arguments at Convertino's trial.

"Winning the ... case was everything to defendant Convertino," Schwager said. "This case is about truth and lies."

William Sullivan, Convertino's lawyer, said his client and a co-defendant in the case, former State Department investigator Harry Smith III, were only trying to bust up a terrorist cell and shouldn't be on trial.

"There was no reason to risk their careers or their lives on a tiny bit of evidence," Sullivan said.

FIND MORE STORIES IN: Detroit | Sept. 11 attacks | Trial | Terrorism | Accused | Richard Convertino | William Sullivan | Harry Smith
Smith's lawyer, Thomas Cranmer, told the court that Smith had no motive to lie.

"He's a witness," Cranmer said. "No stake in the outcome of the case."

Convertino, 46, and Smith, 50, have pleaded not guilty to obstruction of justice, making false declarations before a court and conspiracy charges.

Convertino's only motive in the case was "to take the sleeper cell out," and "to make sure each and every one of you in this jury box was safe," Sullivan said.

For two years, Convertino led the government's case against the four accused of operating a terrorist cell. Two of the four, Karim Koubriti and Abdel-Ilah Elmardoudi, were convicted in 2003 of conspiring to provide material support and resources to terrorists, and Convertino won praise from the Bush administration for his successful convictions.

However, a federal judge overturned the verdicts at the Justice Department's request after prosecutors discovered that some documents that could have aided the defense during the trial were not turned over by the government as required.

Convertino was the lead prosecutor in the case, and Smith helped in the investigation and testified for the government at the trial. Koubriti, a Moroccan immigrant, sued Convertino, Smith and Michael Thomas, the lead FBI agent on the case, in August. That lawsuit is pending.

Testimony in the criminal trial in front of U.S. District Judge Arthur Tarnow started Wednesday and was expected to last about four weeks.

Posted by: LawBlogger | October 24, 2007 12:08 PM

You know what, I think the trial of former AUSA Richard Convertino is SO interesting I think it bears another post on today's reporting from the Detroit Free Press:

Jury weighs what really happened on helicopter in terrorism case
Paul Egan / The Detroit News

The criminal trial of former federal prosecutor Richard Convertino today heard more conflicting accounts of a helicopter flight over the city of Amman, Jordan, in March 2002.

What happened on that flight is crucial to the government's case against Convertino, 46, and former U.S. State Department security officer Harry "Ray" Smith, 51. They are charged with conspiracy, obstruction of justice and false statements in connection with the terror trial Convertino prosecuted in 2003.

In the terror case, four defendants were charged with supporting terrorism. Convertino alleged that a sketch seized from the defendants' Detroit apartment was a terrorist casing sketch of the Queen Alia Military Hospital in Jordan.

Defense lawyers at the terror trial wanted to see government photographs of the Jordan hospital to compare with the sketch but were told none existed.

Smith testified at the terror trial he was aboard a helicopter with a camera when he flew of the Queen Alia Military Hospital in March 2002. But he testified he could not photograph the hospital because the flight was for another purpose -- to take pictures of hotels and other sites in preparation for a pending visit to Amman by Vice President Dick Cheney.

The indictment in the current trial alleges Smith lied when he testified and did photograph the hospital.

Everybody involved in the flight remembers it, because a door fell off the helicopter during the flight. But recollections about the purpose of the flight and what was photographed vary widely.

Today, jurors were shown videotaped depositions from three Jordanian police officials who were aboard the helicopter flight.

The co-pilot, Saed Alhamed Alwkhyan, testified the purpose of the flight was to prepare for Cheney's visit and to photograph the U.S. Embassy.

The pilot, Thaerhosni Al-Rousan, testified the flight was arranged by the U.S. Embassy to photograph various sites in Amman he does not recall.

Another police official aboard the helicopter, Thaffar Maaitah, testified the purpose of the flight was to photograph various Amman hotels for an unspecified VIP visit, possibly the Secretary of State.

All testified it was possible photos of the Queen Alia Military Hospital were taken during the helicopter trip, though they don't recall that happening. Photographing the hospital would have been no problem if Smith wanted to, they testified.

Earlier, Samir Jarandogha, a Jordanian who worked at the U.S. Embassy and was aboard the flight, testified he saw Smith photograph the hospital from the helicopter. But Jarandogha has also admitted to lying under oath and his story has changed over time. When first contacted by federal authorities, he said the purpose of the flight was to photograph various hotels and possibly the hospital. He later said photographing the hospital was the main purpose.

Todd Brown, Smith's boss, testified Tuesday he understood the purpose of the flight was for Smith to photograph the hospital.

Secret Service agents testified earlier they were unaware of a helicopter flight or aerial photos related to Cheney's visit.

Smith himself said in an e-mail introduced as evidence that he took photos of the hospital but they did not turn out.

The trial continues before U.S. District Judge Arthur J. Tarnow.

Posted by: LawBlogger | October 24, 2007 12:23 PM

Convertino's ex-boss takes the stand in terror trial

October 16, 2007



Keith Corbett, the ex-boss of embattled former federal prosecutor Richard Convertino, took the stand Tuesday against his cocounsel in the tainted 2003 Detroit terrorism trial, testifying that he would have given defense lawyers photos of a Jordanian military hospital but he didn't know they existed.

He also testified that Convertino later tried to convince him he had seen the photos. "I kept saying, 'No, I didn't,'." Corbett said.


Convertino and Ray Smith, a former embassy security agent, are charged with hiding evidence and conspiracy for allegedly keeping the photos from defense lawyers in the 2003 trial of four north Africans arrested in Detroit six days after 9/11 and accused of being a sleeper cell.

The photos, allegedly taken at Smith's request, may have undercut prosecution claims that drawings in a day planner seized from the men's apartment were so-called casing sketches that could have been used in an attack on a hospital in Jordan.

Under federal court rules, prosecutors must give defense lawyers evidence that will be presented at trial or would tend to point toward innocence. Defense lawyers from the terror trial said the photos would have helped their case because they didn't match landmarks in the sketches. The terror convictions were later thrown out.

Agreeing on a motion from the U.S. Attorney's Office in 2004, U.S. District Judge Gerald Rosen threw out the terror convictions.

Convertino's attorneys have suggested that photos were overlooked and left unopened in an e-mail inadvertently lost by Convertino in a welter of evidence he had to manage with minimal support. Although he was Convertino's boss, Corbett said he played second chair to Convertino's leading role in the terror trail because no other attorneys stepped up.

But the image of an overwhelmed and careless Convertino was at odds with his reputation and job evaluations -- by Corbett -- as a meticulous and zealous lawyer who prided himself on tireless trial preparation.

"You never had to worry about getting Rick going on a case," Corbett testified.
Corbett also said he knew Convertino had talked about running for Congress in the late 1990s and had submitted his own name for a federal judgeship. The prosecution alleges personal ambition led to Convertino's alleged misconduct.

During cross-examination, defense attorney William Sullivan took Corbett's answer that he wasn't aware of any conspiracy or crime during the terror trial and said "this is nothing more than a oversight or mistake."

U.S. District Judge Arthur Tarnow sustained the prosecutors' rapid objection. Likewise, Tarnow wouldn't let Corbett answer whether he felt a new terror trial were warranted or if he believed the defendants guilty.

On Sunday, defense and prosecution lawyers will question Jordanian witnesses at the U.S. embassy in Amman about photo expeditions to the hospital and other sites.

Posted by: LawBlogger | October 24, 2007 05:52 PM

Failure to convict by a TEXAS jury?

I can imagine a couple of options:

1. Hamas was innocent (it's possible)
2. Prosecutorial incompetence. Prosecutors are appointed based on their political reliability first. Perhaps this one was a village idiot?
3. hey couldn't make the case because there never WAS a case, just a burning desire to "prove something."

None of these reflect favorably on the Department of Justice.

Posted by: VA_Lady2007 | October 25, 2007 03:00 PM

I know DOJ is following Convertino's trial closely, for obvious reasons, but it is difficult to predict how it is going to come out-the prosecution has rested, but it does not help Convertino that the police contradicted him:

Police contradict defendant in terror trial
They say he could have taken photos

October 25, 2007



They didn't remember if he did, but there was nothing to stop U.S. security agent Ray Smith from snapping pictures of the Queen Alia Military Hospital during a helicopter flight over Amman, his Jordanian pilots and escort testified on videotape in the trial of Smith and former federal prosecutor Richard Convertino.

The three Jordanian police officers, in depositions taken Sunday at the U.S. Embassy and played Wednesday for a Detroit federal jury, contradicted Smith's testimony in the now tainted 2003 Detroit terror trial that photographing the hospital on a flight in preparation for a visit by Vice President Dick Cheney would have triggered a diplomatic incident.


Smith, who served at the U.S. Embassy in Jordan, and Convertino are charged with conspiring to obstruct justice, among other charges.

They are accused of hiding evidence that defense attorneys say could have been used to undermine the government's case against four men accused of terrorism.

At issue are assertions that Convertino withheld photos of the hospital that didn't match a crude drawing that was purported to be a casing sketch for an attack.

The prosecution rested its case Wednesday and defense attorneys argued that prosecutors failed to show that Convertino and Smith had met before trial -- let alone that the two veteran lawmen hatched a conspiracy. U.S. District Judge Arthur Tarnow said he would rule on the defense's motions before the trial resumes Friday.

Maj. Thaffar Maaitah of the Jordanian police testified that Smith was flown over Amman to photograph hotels, but there was no problem if he also had photographed the hospital.

Capt. Thaer Hosni Al-Rousan and Capt. Saed Alhamed Alwkhyan, the pilot and copilot, both testified that they were focused on flying, but knew of no limits on Smith because the flight was authorized.

Earlier, Samir Jarandogha, the embassy's liaison to local authorities, testified Smith took pictures on the flight. However, Jarandogha admitted he'd lied to Tarnow about the efforts he took to avoid Smith's lawyers.

The first defense witness, FBI agent Paul George, testified he saw nothing improper between Convertino and Smith in the terror case.

Posted by: LawBlogger | October 26, 2007 04:02 AM

Wow. That's all I can say. This is the most incredible trial-Federal Judge Rosen moving to quash a subpoena by DOJ to testify? Wow. Talk about dramatic!

Judge fighting subpoena to testify

He presided over terror trial in which ex-prosecutor is accused of obstructing.

Paul Egan / The Detroit News

A Detroit federal judge is trying to stop the U.S. Justice Department from forcing him to testify in the criminal trial of former federal prosecutor Richard Convertino, which begins today.

U.S. District Judge Gerald E. Rosen, who presided over the 2003 terrorism trial in which Convertino is accused of obstructing justice, filed a motion Friday to quash a government subpoena requiring him to testify at Convertino's trial.

Convertino, 46, is charged with conspiracy and obstruction of justice, accused of lying to a federal jury in the government's first post-9/11 terrorism case. Terrorism-related convictions Convertino won against two of the defendants were later thrown out.


Also on trial with Convertino is Harry Raymond Smith III, 50, a former State Department security officer who testified at the terrorism trial.

"It appears that the government may be seeking Judge Rosen's testimony simply because he is a federal judge whose testimony would presumably carry greater weight," Rosen's attorney, James K. Robinson of Washington, D.C., said in a memorandum of law accompanying the motion.

However, judges should only be compelled to testify in extraordinary circumstances, partly because requiring judges to testify in criminal cases could erode the public perception that judges are principled and neutral, Robinson said in the court filing.

Many other witnesses can testify about what went on at the terrorism trial, and "the public interest in a neutral judiciary and in judges who are able to perform their duties effectively take precedence over the government's desire to have a federal judge testify," Robinson said.

The government has yet to respond to Rosen's motion, but Robinson said in the court filing that government attorneys told him they will oppose the motion to quash Rosen's subpoena.

Lawyers for Convertino and Smith support the motion to quash, Robinson said.

The trial before U.S. District Judge Arthur J. Tarnow is expected to last four weeks.

Posted by: LawBlogger | October 26, 2007 12:11 PM

Most interesting-it doesn't look like the Government's case is very strong, yet, you had to be there listening to the evidence-Convertino could be found not guilty of obstruction. You see, if a prosecutor does like Convertino, and gets on the wrong side of upper mgmt. at Main DOJ, he can expect the book to be thrown at him. On the other hand, if another prosecutor did far worse things, but was always a loyal team member, and was VERY well connected to the higher-ups at DOJ, well, that prosecutor can pretty much GET AWAY WITH ANYTHING, BECAUSE DOJ WILL COVER FOR ONE OF ITS OWN-ALWAYS.

Judge: Convertino trial will likely go to jury by Tuesday

Paul Egan / The Detroit News

DETROIT -- The criminal trial of former federal prosecutor Richard Convertino will likely go to the jury late Monday or early Tuesday, U.S. District Judge Arthur J. Tarnow said today.

Convertino, 46, and former U.S. State Department security officer Harry "Ray" Smith, 51, are charged with conspiracy, obstruction of justice and false statements in connection with a terrorism trial Convertino prosecuted in 2003.

The government rested its case on Wednesday. Smith rested his case today after calling one witness, and Convertino is expected to rest his case on Monday.

Questioning continued today of FBI Special Agent Paul George, the first defense witness. He was called as a witness by Thomas Cranmer, a lawyer for Smith.

Part of the allegations against Convertino is that he illegally withheld from defense lawyers evidence harmful to his case.

Convertino alleged a videotape seized from the four defendants' Detroit apartment was a terrorist casing video of the MGM Grand Hotel in Las Vegas. Defense lawyers in the terror case maintained it was a harmless tourist video.

On Tuesday, a former federal prosecutor from Nevada testified she told Convertino the FBI in Las Vegas did not think the video was terror-related and Convertino told her to keep quiet about "this uninformed opinion."

But George, who was a government terrorism expert at the 2003 trial, testified as a defense witness today and Wednesday and said he never heard such concerns. If the Las Vegas FBI had doubts about the video, they would tell the FBI in Detroit, not a Nevada federal prosecutor, George testified.

George testified several aspects of the video -- which also included scenes of New York City and Disneyland -- were consistent with terrorist casing work.

And when translated from Arabic, the voice on the video was saying the scenes photographed would be "a graveyard," George said today.

Although terror-related convictions in the 2003 case were tossed out because of alleged misconduct by Convertino, George testified he believed all four defendants were terrorists and Convertino was an excellent lawyer who acted appropriately when he prepared Smith to testify in the terror trial.

Posted by: LawBlogger | October 26, 2007 04:24 PM

Wow! This isn't pretty, folks, DOJ going down HARD, on one of its own! The closing arguments in the Convertino trial, defense attorney William Sullivan of DC representing Convertino:

Convertino jury told to ignore patriotism pitch

October 30, 2007




Prosecutors urged jurors in a federal obstruction of justice trial on Tuesday to ignore defense claims that a prosecutor and witness in a bungled 2003 terror trial in Detroit were motivated by patriotism and a determination to catch terrorists.

"Pay no attention to the flag waving," Justice Department lawyer Eileen Gleason told jurors in closing arguments in a case against former assistant U.S. Attorney Richard Convertino and State Department security aide Raymond Smith.


The two men are accused of concealing photographs, which the government says would have shown that so-called terrorist targeting sketches in the 2003 trial did not resemble the layout of the Queen Aliah Military Hospital in Jordan.

Three North African immigrants were convicted in the 2003 trial, but the charges later were dismissed at the request of the U.S. Attorney's Office in Detroit, which said Convertino held back evidence favorable to the defendants.

Smith is accused of lying about taking photos of the hospital and Convertino of failing to disclose the falsehood.

The federal court jury is expect to start deliberations this afternoon.

"This case is not a test of your patriotism," Gleason told jurors. "It doesn't matter why they did it.... You can't break the law to catch lawbreakers."

William Sullivan, the attorney for Convertino, countered during his closing arguments that his client acted as a hero.

"Mr. Convertino answered the call'' when the case came up. "He acted to save lives, and in my opinion, it might have been your own,'' Sullivan said.

He said Convertino was overworked and overwhelmed by a mountain of evidence during the 2003 trial, and starved for resources while being micromanaged from Washington.

As for the photographs that were not turned over during the trial, Sullivan said that they were such a small part of the case that they would not have helped the defense. He said Convertino may have made mistakes, but he didn't have the "depraved, immoral and evil mind'' that would have made his actions a crime.

Sullivan also pointed out that the terror suspects have yet to be retried.

"The government has substituted these two men - Rick and Ray -- for the'' terror defendants.

Smith's lawyer, Thomas Cranmer, said it makes no sense that Convertino would try to recruit someone like Smith - lauded by prosecution witnesses as a man of character and integrity -- into a criminal conspiracy.

"How are you going to ask somebody like Ray Smith to lie?" Cranmer asked the jurors.

Cranmer reminded the jury that the only person who testified Smith took photographs of the hospital was the embassy's Jordanian liaison Samir Jarandogha, who testified he lied to U.S. District Judge Arthur Tarnow in a pretrial hearing. Jarandogha told Tarnow that his Jordanian lawyer advised him not to meet with defense lawyers before trial, but admitted the next day that that was untrue.

" 'Oh, I didn't mean it,' " Cranmer mocked the admission. "Baloney! He didn't mean to get caught. He meant to lie."

Posted by: Law Blogger | October 30, 2007 06:37 PM


Jury: Richard Convertino not guilty on all charges
October 31, 2007


A federal jury has found Assistant U.S. attorney Richard Convertino has been found not guilty on all counts of obstruction of justice.

Also acquitted in U.S. District Court in Detroit was former U.S. Embassy security agent Ray Smith.


Both were accused of concealing evidence during a 2003 terrorism trial. They were accused of hiding photographs in a federal case against four north African men accused of being members of a Detroit terrorism sleeper cell.

Three men were convicted in the trial, but the verdicts were overturned when the U.S. Attorney's Office said there was prosecutorial misconduct.

Smith was accused of lying about taking photos. Convertino was accused of leading him through false testimony and of hiding photos that another agent took at Smith's request.

During an emotional closing to the four-week trial, William Sullivan, the attorney for Convertino, pointed out that the terror suspects weren't retried and said that the government had substituted Convertino and Smith for them.

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