From www. kentimmerman.com
From www. kentimmerman.com
Reprinted from NewsMax.com
Justice
Dept. Pledges 'Proactive Prevention' of
Terror
Thursday, May 25,
2006
Washington, D.C. -- Deputy Attorney General Paul J. McNulty
today pledged that the Justice Department would break up potential
terrorist cells in the United States before they could take action,
even if it meant occasionally losing cases in court because of
insufficient evidence.
"Awaiting an attack is not an option," McNulty told an audience
at the conservative American Enterprise Institute today. "That is why
the Department of Justice is doing everything in its power to
identify risks to our nation's security at the earliest stage
possible and to respond with forward-leaning – and preventative
– prosecutions."
In previous administrations, the Justice Department has waited
for a crime to be committed before convening a grand jury to
investigate how a criminal conspiracy evolved.
This "law enforcement approach" was codified in a 1995 memorandum
issued by then Deputy Attorney General Jamie Gorelick that created a
"wall" between law enforcement and intelligence gathering.
The 9/11 Commission described in excruciating detail how
confusion over "the wall" led to the CIA refusing to hand over key
information to the FBI that would have led them directly to at least
two of the 9/11 hijackers several weeks before the attacks
occurred.
Since 9/11, McNulty said, that approach has changed. "We
pledged to those who lost their lives, to the children and loved ones
they left, and indeed to our entire nation that we would devote the
resources and energies necessary to preventing terrorism and
protecting our communities."
Congress weighed in by passing the USA Patriot Act, which
authorized the use of intelligence information in criminal
prosecutions before a crime was committed.
McNulty cited the case of Jeffrey Battle and the "Portland
Seven" to illustrate "the obstacles" the Justice Department has had
to overcome in post-9/11 prosecutions.
Jeffrey Battle was a U.S. citizen who attempted to enter
Afghanistan in 2001 to fight alongside the Taliban against the United
States and allied forces. In order to prosecute him successfully,
McNulty said, the Justice Department needed access to "classified
materials, including electronic surveillance," which would have been
off-limits under the Gorelick rules.
"In its investigation, the FBI shared important intelligence
information with the prosecution team," McNulty said, enabling them
"to work together the monitor the risks presented by Battle" before
he ever made it to Afghanistan.
"The effort marked a significant operation success that would not
have been possible but for the USA Patriot Act," he noted.
Justice Department prosecutors have also made errors that were
"undeniably grave," McNulty said. The most notable was in the case of
Karim Koubriti, a 26-year Moroccan immigrant who was arrested in
Detroit the week after the September 11 attacks.
The government claimed that Koubriti headed "a sleeper operational
combat cell," and presented the jury with video footage of major U.S.
landmarks it claimed were taken by members of the cell in preparation
for terrorist attacks.
A jury convicted Koubriti and a co-conspirator in June 2003 of
supplying material to support terrorism. But a District Court judge
tossed out the convictions 15 months later when it became apparent
that the lead federal prosecutor had failed to disclose potentially
disculpatory evidence to the defendants and their lawyers.
An internal Justice Department investigation acknowledged
prosecutorial error and recommended paying compensation to the
defendants.
McNulty attacked detractors head on. They claimed the Justice
Department's new, "forward-leaning" prosecution approach was leading
to a high number of acquittals because of insufficient evidence.
Referring to the acquittal by a Florida jury of Sami al-Arian
on certain terrorism charges, he said that "no apology is necessary
or appropriate in response to an acquittal . . . The reality is that,
while we present the strongest case possible, a jury may not agree
with our view of the strength of the evidence. That, though, is the
function of a jury."
In order to prevent terrorist acts, federal prosecutors today
"must bring charges before a conspiracy achieves its goals –
before a terrorist act occurs," McNulty said.
"To do so, we have to make arrests earlier than we would in
other contexts where we often have the luxury of time to gather more
evidence. This heightened risk of acquittals is one we acknowledge
and accept given our unwavering commitment to prevent terrorist risks
from materializing into terrorist acts."
McNulty swept aside concerns that information obtained during a
FISA-court ordered surveillance was being used to unfairly prosecute
Muslim immigrants on unrelated charges, such as immigration fraud or
document theft.
"The simple truth is that terrorists, as well as sympathizers
and supporters of terrorist causes, are able to exploit weaknesses in
our identification, immigration, and financial systems to facilitate
future attacks," he said.
The Justice Department intended to prosecute immigration fraud
and identity theft vigorously, "because those systems are vital to
our national security."
Commenting on McNulty's presentation, Washington Post editorial
writer Ben Wittes said he felt McNulty "rather overstated the
successes and rather understates the failures," and called the
Koubriti case in Detroit "an absolute fiasco."
He and others noted the "astounding problems with the civil
justice prosecution in the [Zacarias] Moussaoui case," noting
that "the government lucked out when Moussaoui pled
[guilty]."
So far, the government had "failed to establish any principles"
guiding when it would prosecute alleged terrorists in civil courts,
and when it would transfer them to military tribunals. "The only
guiding principle is convenience," Wittes said.
McNulty noted that the Moussaoui case "presented a lot of
challenges," but would not comment on whether 9/11 planners Khaled
Sheikh Mohammad, Ramzi Ben al-Shibh or Mohammad al-Qatani would ever
be brought before a U.S. court, as Bush administration critics are
demanding.
Former Clinton administration Justice Department official Neal
Kumar Katyal, who is representing Salim Ahmed Hamdan of Yemen - the
man accused of being Osama bin Laden's driver - said prisoners held
at Guantanamo Bay should be brought to trial in the United States
under congressionally-mandated courts martial.