Terrorism Trial Ends with a Whimper
by Matthew Epstein
National Review Online
February 11, 2003
In a bittersweet victory for the Justice Department, the head of an Islamic charity tied to al Qaeda pled guilty to charges of racketeering conspiracy.
In federal court, Enaam Arnaout admitted to using the proceeds of his charity, Benevolence International Foundation, to supply fighters in Bosnia and Chechnya with "boots, tents and uniforms." However, in order to reach the deal, prosecutors were forced to drop the charge that Arnaout aided Osama bin Laden or al Qaeda.
Immediately following the guilty plea, Arnaout's attorney told reporters that the government's decision to drop the charge of material support to al Qaeda cleared his client of links to terrorism.
U.S. Attorney Pat Fitzgerald countered, "Benevolence International Foundation, we were prepared to prove and still are prepared to prove, was working with al Qaeda."
Fitzgerald's comments are consistent with the government's twenty five page indictment filed in October of last year alleging that BIF and Mr. Arnaout "raised funds and provided support to" al Qaeda. Attorney General John Ashcroft dramatically announced the indictment with a pledge to "find the sources of terrorist blood money."
So then why the reduced plea?
In a three-page ruling last week, Judge Suzanne Conlon rejected the Justice Department's request to submit hundreds of pages of documents as evidence in the upcoming trial.
The 101-page "Proffer" by the government contained clear and convincing evidence linking BIF and Arnaout to al Qaeda. The filing was accompanied by over 240 exhibits, including documents acquired in a March 2002 search of BIF's offices in Sarajevo. According to the government, the raid yielded a "treasure trove of electronically scanned documents and photographs, including many with defendant Arnaout" that were stored on CD-ROMs and computer hard drives.
The evidence submitted by the government included communications between Arnaout and Osama bin Laden showing Arnaout to be a senior al Qaeda lieutenant, involved in coordinating weapons purchases, financial transactions, and training camps.
Judge Conlon barred the proffered evidence, invoking a legal technicality — hearsay. The federal rules of evidence provide that statements made out of court (including the evidence recovered in Bosnia) are usually considered to be "hearsay" and are not admitted into evidence; they would be allowed, however, if the government could prove that the defendant took part in a conspiracy. Judge Conlon denied the government's argument that the evidence qualified for this hearsay exception, known as a "Santiago proffer".
Without the admission of the Bosnian intelligence documents, the Justice Department was hard-pressed to prove its case against Arnaout.
In a pattern followed by Islamic militants, Mr. Arnaout's counsel repudiated the admission of guilt stating, "One has to question whether a fair and impartial jury could be found anywhere in America today that could sit in judgment of an Arab American in a case involving allegations of terrorism."
Under the plea deal, Arnaout faces up to 20 years in prison. However, he may serve substantially less time should he cooperate with the government in other terrorism investigations, as stipulated in the plea agreement.
— Matthew Epstein is an attorney and terrorism analyst at the Investigative Project, a Washington, D.C.-based counterterrorism think tank established in 1995.