PATRIOT Unbound

Not even flubbed terror cases can dent law's appeal

Following his 2003 indictment for aiding terrorists, Sami al-Arian was the poster child for the USA PATRIOT Act. The former University of South Florida professor was a staple of former Attorney General John Ashcroft's testimony before Congress on PATRIOT and in the speeches of U.S. Attorneys across the nation. Al-Arian even turned up in a Department of Justice handbook on how to prosecute terrorism charges.

Yet on Tuesday, after five months of testimony in which the defense did not mount a defense, al-Arian and his co-defendants were found not guilty of most charges, with the jury deadlocked on a few more. Unless the government opts to retry and wins on those counts, the PATRIOT Act will have utterly missed its target down in Tampa.

Nonetheless, on Thursday congressional leaders agreed to extend the PATRIOT Act for four more years, essentially unchanged. Evidently PATRIOT is working for them.

But the maximum war on terror crowd is aghast at the trial's outcome and doubting the very idea of prosecuting terrorists. Frontpagemag.com's Joe Kaufman attended the trial and came away shaken:

This case was a big blow for the war on terrorism. Although most Americans are attuned to what's happening in Iraq, they may have missed what's going on right in their own country. Sami al-Arian was a major player on the wrong side of this war. Because someone like him—someone who was so blatantly involved in terrorism—was acquitted, the Justice Department may think twice before bringing future terror cases to trial.

Another winger critic blames the prosecutor, which just misses the crucial lesson of the outcome. Blogger Debbie Schlussel fingers an "extraneous matter" prosecution that overwhelmed jurors.

Well, Debbie, extraneous matter is what the PATRIOT Act is designed to generate. It throws into court a crush of frequently extraneous matter—years of wiretaps, bank records, computer histories, personal records—and says "A-ha! Gotcha!" Sometimes this works, especially when a target cops a plea. But when there is any kind of non-criminal, arms-length relationship possible, PATRIOT's magic falters.

The basic problem stems from prosecutors trying to use the exact same tactics they used to bring down the Mafia for anti-terrorism purposes. Taking a similar approach makes some sense, in that all ongoing criminal conspiracies need ongoing investigation, but winning terrorism cases depends on more than showing that money changed hands or was hidden from taxation.

To illustrate, when Joey Pants shows up with a new Cadillac, you don't have to connect too many dots for jurors when you have his cousin Sammy Pants on tape talking about a bank heist. Not so for terrorism-support cases, especially "clean money" cases like the one the government tried to build against al-Arian. A "clean money" case is one in which all the money involved is legit, not the result of some illegal activity.

The money does not turn "dirty" and criminal until it is given to an officially designated foreign terrorist organization (FTO). In the case of al-Arian, the FTO was Palestinian Islamic Jihad (PIJ). And PIJ is murderous bad news, no doubt about it.

PATRIOT gave prosecutors access to government intelligence sources of information, more wiretaps and bank records, with which they hoped to prove conclusively that groups that solicited funds in the U.S. in turn directly supported terrorist acts overseas. Some of this evidence clearly comes from foreign governments, or their wiretaps. In the Tampa case, prosecutors had years of evidence placing the defendants at the center of front groups that turned around and gave money to PIJ.

Yet money also went, or was purported to go to, various Palestinian charitable groups. In other words, the connection wasn't just to Joey Pants' Caddy, but to new shoes for orphans. The jury in Tampa just did not buy the government's version of where the money went. This, and the fact that much of government's case dated to the mid-'90s, before it was illegal to give money directly to PIJ, was the hole that PATRIOT's document blizzard could not paper over.

Incredibly, one member of the prosecution team all but admitted it lacked a direct tie to terror when he told jurors in November simply to assume that a "PIJ cell was operating right here in Tampa." The day when trials turn on assumptions and not proof will be the day we no longer need trials.

Rather than continue to claim falsely the PATRIOT Act is an anti-terror wonder cure, a simpler course to combat any support terror groups receive from U.S. based-fronts might just be to add more groups to FTO list. If those groups are really and truly supporting terrorism overseas, then it should not be a problem for the State Department to add them to the current list of 42 groups.

Donors to those groups would then be subject to prosecution on those grounds, eliminating the need for all linking and documenting and wire tapping via PATRIOT. And if adding so-called front groups to the FTO list is too politically sensitive, let's get that out in the open and talk about why, exactly.

Just about any course would be more just and effective than exposing millions of innocent Americans to the PATRIOT's "sneak-and-peak" info suction provisions. Unless PATRIOT's limitless info-extraction ability is what government officials really, really covet—successful terror prosecutions or not.

Jeff A. Taylor writes the weekly Reason Express.