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Snazzy Zazi Plot But No Terror Charges

(AP Photo/Ed Andrieski)
It's been fascinating over the past week to watch federal agents and lawyers, working with state and local counterparts 1,600 miles away, choreograph the events leading to the arrests late Saturday night of Najibullah Zazi and his father, Wali Mohammed Zazi, on federal "false statement" charges. Is this the "first al-Qaeda terror cell" discovered in the United States since 9/11 or is it something far less sinister? Even the feds don't really know for sure.

That didn't stop them, however, from clicking off all of the elements of their perennial song-and-dance number in terror-plot cases; this time from New York to Denver to Washington and back. The prejudicial leaks from law enforcement; the prompt (and promptly repeated) links to al Qaeda; the dramatic headlines, the identification of a "person of interest;" the assurances that no particular target had been specified; the intercession of an overwhelmed defense attorney; the denials, the meetings, the breakdown in talks, and, finally, the arrest (late at night, but with the tipped-off news cameras hovering above and about).

We've seen various iterations of the perp-walk parade hundreds of times before, in cases that merited the attention or not, and certainly dozens of times since Sept. 11, 2001. Often, way too often, the government has in the end been able or willing to prove far less than the initial (and often hysterical and hysterically received) allegations — distributed (typically without challenge) via cable television and the Internet — suggested. For example, off the top of my head, I give you: Zacarious Moussaoui, who was not the "20th hijacker," Jose Padilla, who was not the "dirty bomber" and John Walker Lindh, who was not the "American Taliban."

It is still way too early to know where the Zazi case falls into the broad spectrum of cases — between overhyped terror investigations on one side and genuine law enforcement competence, even brilliance, on the other. So far, father and son have been charged only with making a false statement to a federal agent, precisely the same charge for which Martha Stewart was tried and convicted in 2004. So far, and for reasons not yet publicly disclosed, the Zazis have avoided even the federal "material support" for terrorism statute, the interpretation of which seems to grow broader each and every year.

Right now, instead, we see only the old, familiar story; a prosecution for the alleged cover-up but not the alleged crime. The evidentiary basis for the Zazis' charges by its very nature could only have occurred within the past few days. You can't lie to a federal agent until you start talking to a federal agent. But about the heart of the matter we still know very little. Are the Zazis really dangerous? If so, how dangerous are they? How strong is the evidence against them? What did they allegedly lie about and what didn't they allegedly lie about? And how long is it going to take for us to know the rest of the story.

If, for example, the feds believe that Zazi, the younger, really did attend an Al Qaeda terror training camp why is he only charged with "lying"? If the feds really did find incriminating bomb-making plans on a laptop taken from Zazi's rental car then why no "material support" or conspiracy charge? If his fingerprints were on a "black scale" and batteries (two items which are legal to possess) what other physical evidence suggests a crime? Are the Zazis cooperating with federal authorities to incriminate Ahmad Wais Afzali, the third man arrested (this time in New York) in the investigation? Or is Ahmad Wais Afzali, reportedly a "popular Imam in Queens," the one who informed the authorities about the Zazis?

Maybe both sides were plotting to inform on each other and the feds decided they could simply charge all of them with lying since neither version offered could both be true? Maybe neither version is true. Maybe the three men 1,600 miles apart, are all informing upon other people who may have been involved in whatever this turns out to be. Of all the starts to all the terror cases in all the world since 9/11 the start to this terror case cries out more than most for a little more patience. As Churchill might have said, we are not remotely close to the end of the beginning.

In most terror cases the charges come out long before any detailed evidence. Here, the detailed evidence seems to have come out before the charges. So take these breathless headlines with a margarita glass full of salt. Give yourself a few days, or even a few weeks or months, before you come to any strong conclusions about the Zazis and their New York counterpart. Don't worry. They won't be going anywhere, anyway.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here.
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