Everything But The Kitchen Sink
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
The Justice Department Thursday threw the book at a Florida professor and seven others accused of illegally supporting a Palestinian terrorist group -- almost literally. Detailing an alleged terror conspiracy that spanned three decades, the feds threw down on the table a massive, 121-page indictment that includes relentless detail and sweeping charges. In fact, the scope of this case is so broad that it virtually dwarfs every other terror-related case initiated since Sept. 11, 2001.
Leaving aside for another day the merits of the allegations, the indictment itself says a lot about how the government intends to take and maintain the legal initiative in the war on terror. For instance, it's not directed against anyone connected directly to al Qaeda, the top-charting terrorist group led by Public Enemy No. 1 Osama bin Laden.
That intentional omission suggests that prosecutors and policy makers have decided to expand the legal fight against suspected terror groups just as surely as America's military is preparing to expand its campaign against suspected terrorists overseas.
Even the recently-resolved case of Enaam Arnaout and the Benevolence International Foundation involved at the outset an alleged al Qaeda link. The fact that this long indictment does not presages a whole new front against terror operations that allegedly involve illegal activity on American soil, even if the ultimate aim of the operations only affected targets overseas. This doesn't mean that the feds now are going to use domestic criminal law to expand their enforcement grip around the world.
But it does mean that what once was legally untouchable now is in play. There are more government-designated terror organizations now than there used to be, thanks to the political response to the attacks on America. And the government's power to surveil these organizations now is much greater than it used to be, thanks to the USA Patriot Act. You combine these two new realities and you get a lengthy investigation leading to this lengthy list of charges against these far-flung defendants.
Is it a good idea to start new fronts in the legal war on terror before the al Qaeda front is mopped up? I don't know. But I now know what federal prosecutors had in mind when they settled the John Walker Lindh case last summer in order to "conserve" their resources.
Meanwhile, the indictment combines, for the first time, virtually every single one of the government's "go-to" criminal charges that can be conceivably linked to anything remotely connected to terrorist activity. In its 121 pages, 50 separate counts are alleged against the men and "others unknown," including conspiracy, racketeering, perjury, immigration fraud, providing material support to terrorism, extortion, and murder.
Take the allegations against the American Taliban, John Walker Lindh, add a dash of charges against Zacarias Moussaoui, the alleged 9-11 conspirator, and sprinkle the whole thing with a pinch of the Arnaout case and you get this case against the Palestinian Islamic Jihad. If nothing else, it's remarkable for its comprehensiveness.
So comprehensive, in fact, that supporters of the defendants were easily and reasonably able to say before they even had read the whole indictment that prosecutors had over-charged and over-reacted to protected speech and innocuous conduct. That's an argument that will resonate from now until trial, if there ever is a trial in this case.
So you probably will hear in the next day or so, if you haven't already heard, the argument that where there is smoke -- i.e. sympathy for terror groups like the PlJ -- there is not necessarily fire -- i.e. criminal conduct in support of such groups. Get used to it. It's a claim that helps the defendants both defend against the possibility of convictions and at the same time perhaps reduce their sentences if they ultimately are convicted.
University of South Florida professor Sami Amin Al-Arian is the first-named defendant in the indictment and the man whom prosecutors say is the leader of the PIJ's American operations. But it's not likely that he'll be able to rely upon his academic qualifications to gain any extra favor with his judge or jury.
Al-Arian no doubt will argue that his vitrolic comments against Israel -- comments which might help prove motive if nothing else -- are protected by the first amendment and thus cannot form the basis of a prosecution against him. And it's a decent argument to make. The only problem is that it will only work as a legal and factual matter if the feds have no evidence that Al-Arian and his alleged co-conspirators engaged in actual illegal conduct. Is that possible? Sure. But 121 pages say I'm wrong.
By Andrew Cohen