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Monday, November 22, 2004 - Page updated at 12:08 P.M.
A terrorism case that went awry
By Maureen O'Hagan
Idaho Gov. Dirk Kempthorne said al-Hussayen is proof that terrorists are hiding in the heartland.
Yet al-Hussayen, a 34-year-old doctoral candidate at the University of Idaho, didn't exactly fit the profile when he was arrested in February 2003 and likened in court documents to Osama bin Laden.
Instead, al-Hussayen's alleged crimes occurred at his keyboard in Moscow, Idaho, where he volunteered his computer skills to run Web sites for a Muslim charity. While the charity on its face was geared toward peaceful religious teachings, prosecutors alleged that buried deep within the Web sites were a handful of violent messages written by others encouraging attacks on the United States and donations to terrorist organizations.
Al-Hussayen was charged under a law prohibiting "material support" to terrorism, a provision that has been used routinely in alleged terrorist cases since 2001.
Law enforcement used the Patriot Act, the sweeping anti-terrorism law hurriedly passed in October 2001, to get around some of those hurdles. Al-Hussayen was charged under a clause that expanded the definition of "material support" to include those who provide "expert advice or assistance" to terrorists' cause. He was the first person ever to be charged under that provision, which Congress has considered expanding.
The contention was that al-Hussayen used his expert skills as Webmaster, so that made him a terrorist.
Prosecutors say his arrest alone disrupted terrorist fund-raising.
"His fingerprints were intricately involved in the building of Web sites that called on young people to go and kill themselves" and to make donations for attacks, said Assistant U.S. Attorney Terry Derden. "Can you call on people to donate money to attack America? That's where we were going with our prosecution."
But jurors, who considered the charges in U.S. District Court in Idaho in June, didn't buy it.
Al-Hussayen's case, along with the proposed legislation, indicates a shift in the way the laws are being enforced.
Since Sept. 11, 2001, the government's mission has been to stop terrorists before they attack a strategy that's a matter of life or death but also is fraught with questions: Does targeting those who espouse anti-American sentiment jibe with freedom of speech? When government snoops around based on little more than mere suspicion, are we truly inviolate in our own homes?
Perhaps more to the point, can we be safe any other way?
A bank teller's suspicions
Al-Hussayen's donations and work as a Webmaster attract federal attention.
At the eastern end of the golden Palouse that undulates for endless miles in the drive along Highway 270, Moscow appears on the horizon, a town marked by little more than a string of chain restaurants and gas stations and strip malls. It's enough to keep its 21,000 residents about half of them University of Idaho students sated.
Yet even in this tucked-away corner of the country, life was different after Sept. 11, 2001, when Americans were asked to do their part to stop terrorism. That fall, a local bank teller told the FBI that an Arab student had made a "suspicious" bank transaction.
Post-9/11 changes in surveillance laws helped turn suspicion into a massive investigation.
Born in Saudi Arabia to a well-to-do family, he began studying in the United States in 1994. He got a master's degree from Ball State University in Muncie, Ind., and in 1999 came to Moscow to study for his doctorate in computer science. By the time of his arrest, he was nearly done.
Al-Hussayen and his wife, Maha, sent the oldest two of their three children to public school. And as president of the Muslim Student Association during the Sept. 11 attacks, he had been the public face of Islam in Moscow. Back then, he organized a blood drive for victims, marched in peace vigils, and wrote a letter on behalf of Muslim students condemning the terrorist attacks.
But some things about al-Hussayen made the FBI suspicious. Over five years, prosecutors say, he donated as much as $300,000 to Islamic charities a figure defense lawyers disputed, saying it was wrong by about half, and that most of the total was a donation from a rich uncle that al-Hussayen passed along. The figure remains in dispute.
What is clear, however, is that al-Hussayen gave generously, like all faithful Muslims, who are required to donate substantially each year.
Al-Hussayen also was Webmaster for one of the charities, the Islamic Assembly of North America. The group, like many other Islamic charities, has been investigated for links to terrorist-financing networks, but no charges have been filed and the U.S. has not outlawed it.
He had switched advisers for his dissertation midway through the school year. To the FBI, that meant he was trying to slow down his graduation, that his dissertation was "fictitious," and that his real purpose in coming to the United States was to help raise money for jihad, a holy war, using the Web. Al-Hussayen's explanation? His first adviser was battling cancer, and he switched so he could finish his dissertation on time.
He studied computer-security systems. "They would always mention it with a sneer," said John Dickinson, al-Hussayen's faculty adviser. Al-Hussayen's explanation? He was working on a way to detect computer break-ins, not bring the nation's computer systems down.
He moved his office from the computer-science building to one that years ago had housed the science department's nuclear reactor. To the FBI, that meant he might be seeking radioactive material to make a dirty bomb. The reality? The reactor was long defunct and the nuclear materials inaccessible, according to school officials.
"This case really stood the normal order of business on its head," said al-Hussayen's lawyer, David Nevin. "The typical situation would be a crime gets committed and you go and find the people you think committed it. In this situation they instead focused on people they were suspicious of and set about trying to prove they had indeed committed a crime."
Authorities were suspicious enough to want to tap al-Hussayen's phones, but Nevin said they didn't have the required "probable cause" to believe a crime had been committed and therefore couldn't get a typical search warrant.
In spring 2002, the court granted a government request to record all of al-Hussayen's phone calls and e-mail. All told, some 20,000 e-mails and 9,000 phone calls were captured over the course of about a year.
In addition to the wiretaps, as many as 20 local, state and federal law-enforcement officers began tailing al-Hussayen, according to his lawyer, recording his daily activities around campus and elsewhere.
Essentially, the government vacuumed every corner of al-Hussayen's life looking for crumbs of terrorist activity. After nearly a year of investigating, the FBI was ready to pounce.
Al-Hussayen arrested, and other Arab students interrogated.
On Feb. 26, 2003, Moscow awoke to find the university's day-care parking lot blocked by a swarm of federal, state and local officers.
They were there primarily to grab al-Hussayen, who lived in university housing near the center. But the officers also were armed with a list of Arab students and began knocking on their doors about 5 a.m.
In Moscow, the Muslim students began frantically calling the university's law school early that morning, saying they'd been threatened with jail or deportation if they failed to cooperate, according to Monica Schurtman, a law professor who advised some of them. One was questioned for seven hours, she said.
"We wanted to know what they knew," said prosecutor Derden, calling the students al-Hussayen's associates.
The interrogations in Moscow ended with no charges other than those filed against al-Hussayen.
In a news conference after the raid, authorities trumpeted the arrest and described al-Hussayen as a money man for terrorist operations. Some agents even told reporters that the case could show how attacks such as those on the World Trade Center were funded.
Moscow was stunned.
"I think most people's first reaction was trust the government," recalled Elizabeth Brandt, a university law professor. When dozens of agents "show up in town and arrest a guy, most people think he must have done something really wrong."
It didn't take long, she said, for skepticism to grow.
Before terrorism charges were filed, al-Hussayen was held in jail for months for alleged immigration infractions.
Despite all the hoopla, the charges filed against al-Hussayen had nothing to do with terrorism.
Instead, he was charged with 11 counts of visa fraud and making false statements for filling out his immigration forms wrong. There were two basic problems that he repeated on several forms.
First, he swore he had entered the country "for the sole purpose" of study, and not to work. He broke that promise by volunteering for the Web sites, prosecutors said.
He also ran afoul of a post-9/11 requirement that males entering the country provide a list of organizations to which they belong. Al-Hussayen did not list the Islamic Assembly of North America.
It was the first time anyone had been charged with a crime for failing to disclose volunteer charity work to the U.S. government, according to immigration lawyer Robert Pauw, who represented al-Hussayen. In fact, one of the prosecution's own witnesses, who was from Iraq, held a paying job in violation of her own visa, but she was never charged.
At al-Hussayen's bail hearing, the judge was skeptical. Saying there was no evidence al-Hussayen was dangerous, he denied prosecutors' request that al-Hussayen be jailed until trial.
But prosecutors had another plan. Turning to immigration court, where it's easier to keep a suspect locked up until trial, they filed separate charges alleging al-Hussayen had earned about $300 over his five years of volunteering for the charity. The immigration judge, trumping the previous judge, ruled al-Hussayen would be held behind bars until all the charges were resolved.
All told, he would spend about 1½ years in jail.
After about a year, prosecutors filed terrorism charges. They alleged he was supporting terrorists in Israel, Chechnya and other places through the Web sites.
"It was a type of prosecution that had not been tried before," prosecutor Derden said, noting that the U.S. Department of Justice made the case "a priority."
Derden knew, however, that it would be tough.
Trying to build a case
Jury left to wrestle with untested legal issues.
In opening statements, Assistant U.S. Attorney Kim Lindquist told the jury al-Hussayen had a "dual persona. One face to the public and a private face of extreme jihad."
"When he [Lindquist] got done," recalled juror Steger, "I thought, this guy's going to be in jail for life."
But soon, Steger and the others began to have doubts. Weeks into the trial, Lindquist hadn't presented any evidence of terrorism.
During week four, prosecutors began to show the jury those alleged connections.
On al-Hussayen's Web pages, prosecutors argued, you could click on links that would allow you to donate to Hamas, which the U.S. has designated a terrorist organization. Not so fast, the defense replied. Those links were removed from the site before al-Hussayen became Webmaster.
The links might be hidden, prosecutors countered, but al-Hussayen was still funneling potential donors to Hamas. That's because a would-be terrorist could still donate via al-Hussayen's Web sites if he knew what to type into the address bar. Ridiculous, the defense replied.
"If you really want to have a page that will allow people to make donations to Hamas, it makes no sense to hide it," said Nevin, al-Hussayen's attorney.
But how to explain the Islamic edicts, or fatwas, the prosecution countered? One of the edicts, written by a radical sheik and posted months before 9/11, advocated "suicide operations" and "bringing down an airplane on an important location."
Surely, a devoted Muslim reading that statement could be incited to violence. However, as the defense pointed out, another prosecution witness, Reuven Paz, admitted he had much of the same material posted on his Web site, as did the BBC.
Throughout the trial, Nevin held fast to the argument that al-Hussayen was a peace-loving student, not a terrorist. "These are not Sami's opinions," Nevin said. "It's not right to hold him responsible for what someone else said."
Under the law, Lindquist countered, it didn't matter if al-Hussayen intended to aid terrorists. All he needed to prove material support was to show that al-Hussayen knew his Web sites attracted donations or recruits.
The jury, which retired to deliberate the first week in June, would be wrestling with some legal issues that had never before been tested.
Al-Hussayen's case differs from all other terrorism prosecutions.
To understand the uniqueness of al-Hussayen's case, it's helpful to look at how terrorism prosecution has changed over the years and how his case compares to the rest.
The first "material support" of terrorism law was passed in 1994; under it, the government had to show a connection between the support and a terrorist act.
It also had to prove that the person providing material support intended to aid terrorists. For example, if someone donated to Hamas intending to provide humanitarian aid to Palestinians, he could not be prosecuted.
"Unless I could show how Hamas used that money something you could never show as a practical matter this law was doing no good to cut off funding," said Robert Chesney, a law professor at Wake Forest University.
In 1996, after the Oklahoma City bombing, Congress expanded the material-support law to address those concerns.
Then came 9/11. Six weeks after the attacks, Congress passed the Patriot Act, which added a clause to the material-support law outlawing "expert advice or assistance" to terrorist organizations. It did not define the term, however.
Nevin, al-Hussayen's lawyer, said the idea was to "permit the government to go after someone who provided the know-how to make a bomb."
But that's nothing like what al-Hussayen was accused of doing. In fact, his case is different from every other terrorism prosecution. First, he is the only person to be charged with providing expert advice or assistance. And second, it is the only case targeting Internet support of terrorism.
To Nevin, al-Hussayen was akin to the person who runs a printing press. He simply posted articles at the direction of others. Among thousands of postings, a handful advocated attacks on America, but that didn't make him a criminal, in Nevin's view. It's as if al-Hussayen simply provided the "soapbox" for those people to stand on, Nevin said. And under the First Amendment, that couldn't be a crime.
Chesney sees it differently.
"In this country, we're famously committed to free speech," he said. "Surely you can say what you want, even that al-Qaida is great. But when that starts becoming incitement or fund-raising, then it gets very difficult."
Since 9/11, the material-support law has been used against 52 defendants, Chesney noted, but none but al-Hussayen's case raised this thorny issue. He favors the Patriot Act's material-support provision, saying when concerns such as this arise, they should be considered case-by-case.
Others disagree, saying the law is too broad. "It has become the linchpin of [outgoing Attorney General John] Ashcroft's war on terrorism precisely because it doesn't require proof that an individual engaged in any sort of terrorist act or even supported any terrorist activity," said David Cole, a law professor at Georgetown University. "It is to my mind a resurrection of the principle of guilt by association."
That's what happened when Japanese Americans were rounded up during World War II and when communists were persecuted and prosecuted, Cole said.
Chesney and Cole have researched the Patriot Act extensively but had come to opposite conclusions.
It was anybody's guess how jurors would see it.
Unanimous verdict on terrorism charges derails government's case.
Idaho would seem like a friendly state in which to prosecute an alleged Arab terrorist. It is considered among the most conservative states in the nation and is also among the least diverse, with Arabs making up just one tenth of 1 percent of the population.
On the other hand, Idaho juries have a history of keeping government in check, said law professor Schurtman. Look at the case of Randy Weaver, an Idaho man who was acquitted of murdering a federal agent, in part because the government was seen as the aggressor.
Initially, the jury in the al-Hussayen case focused on the immigration violations. After six days, arguments and tears, al-Hussayen was acquitted of three of them. The jurors deadlocked on the other eight, unable to agree whether he intentionally misled immigration officials or whether the forms simply weren't clear.
Finally, they considered the terrorism charges.
"In two or three hours," juror Steger recalled, "we voted him not guilty on all three."
"There was no direct connection in the evidence they gave us and we had boxes and boxes to go through between Sami [al-Hussayen] and terrorism," said juror Clair Ingraham.
A yearlong investigation, the work of scores of officers, the promise of finding out how al-Qaida funds operations. It had all evaporated with a resounding "not guilty."
Al-Hussayen reached an agreement with the U.S. government and flew back to Saudi Arabia in July.
How far can the government go in the name of fighting terrorism?
To Derden, the prosecutor, the case was not a total failure.
"I don't think anybody ever thought the case was airtight," he said. "The attorney general asked us to go out and disrupt terrorism and material support wherever it occurred. We were unsuccessful in the terrorism charges, but ultimately we thought we were successful in disrupting what was going on."
But what was going on, juror Steger still wants to know.
"It made me feel bad the federal government had this guy in jail for a year and they didn't have better evidence," he said.
When Ahmed Ressam was convicted of crossing the border from Canada into Washington with a carload of explosives, intent on bombing Los Angeles International Airport, his support for terrorism was obvious. When James Ujaama pleaded guilty in connection with a plan to set up a terrorist training camp in Oregon, it was obvious what he did wrong.
But in cases involving alleged Internet recruitment of terrorists, there are many unknowns. Did donors click on the links that led to Hamas? Did terrorists join the cause because of the fatwas?
Under the current law, those answers aren't necessary. Supporters say that's how to stop terrorists before they act.
U.S. House and Senate negotiators had been working on a bill related to the 9/11 commission recommendations; tucked into it were provisions expanding the scope of the Patriot Act. One would have essentially prohibited membership in certain organizations whether that membership furthered terrorists' ends or, for example, was to advocate nonviolence or provide humanitarian aid.
The bill died Saturday when the House and Senate failed to reach agreement on the commission recommendations. But the part of the bill related to the Patriot Act could be revived in coming months.
In the meantime, there are voices like Nevin's.
"Law enforcement in this country has a complicated task," he said, noting it has to catch bad guys and now, potential bad guys "and still preserve the constitutional rights of citizens. There's this tendency that if we have something really serious, we can kind of relax the rules.
"When you do that, you get into trouble."
Maureen O'Hagan: 206-464-2562 or email@example.com
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