• HIGHLIGHTS
• + The record on terror prosecutions
• + Hyping terror trials
• + The enemy may be ourselves
• + Problems with the Lodi case

From the data you've compiled in your recent study, what do you conclude? What do you see?

We see a number of things. The first thing that we see is for the first three to four years, it was almost impossible to track the cases in a consistent way, because the information was not available; much of it wasn't released by the Department of Justice. ... Now that the Department of Justice is reporting their cases, we're finding that the categories are a little bit misleading, and they are lumping together a number of cases that may or may not be what the global war on terror is about and describing it as counterterrorism in the courts. It's still a very amorphous area, even if there are more statistics available. Third thing that we're finding out is that there is a great deal of fanfare when a case is initially brought, before the indictment, when they arrest somebody and bring them in, about links to terrorism, but if you actually follow the case itself, those links to terrorism often do not materialize in the court record, in the follow-up with the media, etc. ...

... A lot of the cases didn't have anything to do with terrorism?

They didn't. They never were able to make the connection stand between what you did with your license fraud or your other document fraud and actual association with a terrorist group or a terrorist plot.

The Department of Justice says they've brought more than 400 cases since 9/11. They say that they have disrupted numerous plots, and this is a success story.

It may be a success story; we actually don't know whether it's been a success story or not for a number of reasons. They have compiled 441 cases since 9/11. Actually, our statistics show more cases. We have 500 cases since 9/11 as of the date of the issue of their report, which was June of this year. ...

And you're saying these are not really substantial cases, by and large?

There are some substantial cases. There's a lot of evidence that we're not allowed to see, but in terms of what we've been able to see, you could not make the determination that there have been a number of substantial cases. ... When you use the number 441, if you want to deduce from that what are the successful cases, you could count them on two hands, and even then there would be people who would dispute those findings. ...

So in the last, let's say, three years, have there been any significant cases?

Well, the [Uzair Paracha document fraud] case is recent. Somebody might cite the Herald Square [subway bombing plot in New York City] case to you. Significant in terms of breaking up terrorist cells? There's nothing that's comes to the fore that says yes, absolutely, this was a very dangerous thing, and that this can be the wonderful case that the Department of Justice wants to make its showcase incident. ... I think the [University of South Florida Professor Sami Al-Arian] case in Florida is maybe a case that is really worth looking into. Department of Justice considers that a success. [On] some level that may be a success, but if you look at the reporting around Al-Arian and the announcements of the prosecutors when he was first indicted, you would have thought that this was our best terrorism case ever. The case actually fizzled. Now, he did [plea] to material support charges -- largely to get out of jail, we think, because he's now being held on immigration issues. But that was a case that would have been the premiere case that they were bringing, and it just fell apart. ...

... And you're including the Miami [Seven, Sea of David] case?

... Yeah. Now, that Miami case is interesting, because the law enforcement people that I have talked to will say this was a real danger, this case. But what do we know? We know that somebody posed as an Al Qaeda representative and asked if they wanted to purchase items in support of terrorism. But we don't know that much about that case, and although we've heard a lot, let's see how the case goes down. ... Right now there has to be tremendous doubt about how we're prosecuting these cases, and we need to rethink what kind of trust we're putting in the people that are bringing these allegations and that are claiming victories.

Because?

Because the victories they're claiming as victories are questionable. ... What are our victories? What do we have to show for it? What evidence?

The Lodi, [Calif.], case is a good case in point. Where is the evidence? Do we actually know that [Hamid Hayat] trained in a terrorist training camp? Has anybody said, "This is the evidence, and we have it"? The evidence we have is a very weak confession. It's a confession that, if you read through it, if you listen to how it transpired, seems to be a confession where most of the questions are leading questions. ...

... When we talk to the FBI about the Lodi case, they say: "Look, this guy said he went to a camp; he confessed; a jury believed him. That's good enough for us."

OK, but when you have ... the statistics that we're compiling, and you're seeing a pattern of what's happening time after time, where cases are falling apart -- ... if we had a record of being able to trust what's happening in the courts, we wouldn't be doubting that. ... The original idea about the Lodi case [was that] they were going to bust [a] cell in the grape vineyards of California, correct? But where's the cell? This is actually a good example of what was the danger, and what actually happened? Where is the cell? Was there a cell? ... There's no terrorist cell that we found that we've identified with that case, when push came to shove. Training in a terrorist camp abroad is a crime, and for that, [Hamid Hayat] confessed, and he's punished. But it's not the larger entity that they described to us in the very beginning of that case. ... The Lodi case is an example of the gap between how a case is originally presented to the public and to the media, and what actually transpires in the case and in the ultimate conviction or acquittal. ...

What they say is, there's a lot more there. There were FISA [Foreign Intelligence Surveillance Act] warrants related to these two imams. There were years and years of undercover operations we can't show you.

That's actually very interesting. First of all, that's what they do all the time. They keep saying, "We can't tell you," and, "These are dangers you wouldn't believe if -- ... if you knew who we had in Guantanamo; if you knew how dangerous these people were." ... That may be the case; it may not be the case. But you have to have a system of justice which you can trust in, and if it's all redacted, if it's all in the black, if it's all what we can't see, that is a problem in the current context. ...

We were told by one of the people on the defense team in Lodi, Mr. [James] Wedick, the former FBI agent, that when they went to plea-bargain agreements, ... the response they got was, "We don't need evidence; we have hysteria."

Wow. That would be a worst case scenario for what's going wrong in the war on terrorism domestically, to know that you can rely on a hysterical jury, a hysterical population to convict out of fear rather than out of rational judgment. I just want to take you to the battlefield of Afghanistan in 2001, because this is exactly what happened in rounding up people at Guantanamo. You had a number of people in Afghanistan who were rounded up, ... and they had to make the decision: "Are these people dangerous? Should we send them to Guantanamo?"

They actually realized that they weren't equipped to make that decision. ... So they made the calculation: "Look, we're not going to sign the document that says these guys are not a threat to the United States. How do we know that? How do you prove something like that? You can't prove that." And they sent them ... to Guantanamo, and now we have a situation where a very large percentage of the people at Guantanamo are likely not guilty of anything. Nobody ever thought they were. They just didn't want to be put on the spot to say, "These guys aren't guilty." That is a situation that the jury, when you talk about hysteria, is in, a situation in which we said, "Are you willing to take it on yourself that you think this person, in any circumstances, wouldn't be a danger to the country?" ...

That's a theme that seems to run throughout the world of counterterrorism: You don't want to rule out the possibility that somebody might do something.

Then arrest everybody! ... There is no foolproof way to guard yourself against risk and threat as a human being. ... We can't do that, so we have to make the best decision we can to say that looks like danger; that doesn't -- no different than how you treat your own health, how you take care of your children, how you cross the street, etc. ...

... The other aspect of Lodi ... is the actual charges filed [versus] the press conferences that take place. What's going on? Is this [the] systematic hyping of cases?

Yes. It is [a] systematic attempt to show that we are tough in the war on terror. Actually, if you think about it, ... this administration has made a very articulated decision to fight terror as a war, not to fight terror as crime. If you read George Bush's 2004 State of the Union address and if you read other various administration policy statements, you will see that they have said, "Look, we're going to fight this war; the courts are in our way [of] fighting this war." On the one hand, you have that as a stated policy. On the other hand, you have a Department of Justice that has pressure on it to show that somehow they're being tough in the war on terror -- maybe in response to the kind of criticism that they're getting for not producing results. So if you're asking me if it's hyping, yeah, I think there's tremendous pressure being brought to show that we know how to arrest, indict, try and convict suspected terrorists. ...

... The FBI, the Justice Department, when we talk with them, [say] that ... what you're seeing in the public record -- the prosecution side, where things become public -- that's the last resort, ... and what you're complaining about is that we're actually doing a good job; there hasn't been an attack in five years. ...

My complaint is as follows: First of all, there's no way to say why we haven't had an attack in the last five years. I would submit that one of the big reasons is Afghanistan and the war in Iraq -- that the energies of Al Qaeda and other jihadist groups have been focused on the Middle East. That's only becoming more of a trend, not less of a trend, as we see what's happening in Lebanon. I'm not complaining that we haven't had a terrorist attack, but just because we haven't had a terrorist attack doesn't mean that our judicial system shouldn't operate in a transparent and reliable way. And these cases do not look ... to be cases that would stand the test of legitimate court procedure and trial. That is a problem for a country that calls itself a democratic country wedded to the rule of law. ...

What you're saying is that you believe in the old way of doing things.

I do. I believe in the old way of doing things, and I believe that it's in our interest to, if we have to change things, change them in the open rather than in a case-by-case system where we're not really vetting whether we want to change things or not. ... I really think that terrorism is a crime; it is a form of crime, and it should be punished as crime. ...

The cases start out with a big-profile press conference and then you say don't amount to very much. ... What's the effect on the public of this?

I think the public doesn't notice. They hear the original accusation, and I think by the time it fizzles out and gets to the actual, rather lame indictment, ... they're not paying attention anymore. ... This is something the media probably bears some responsibility for, but I don't think the public has the attention span or the concern. ...

... When we asked Phil Mudd, the deputy director of the National Security Bureau [at the FBI], ... what he's saying is that they're using whatever means that [are] at hand to neutralize people ... who they believe ... have a sympathy with or are about to do things with radical groups that might harm Americans for terrorist purposes.

OK, but that's not their decision to make. We don't really convict people, even on smaller, lower-level crimes, for things that they might do. It's not how the criminal justice system is conceived. We convict people for things they have done, or maybe are conspiring to do. ... There are a lot of people who might do dangerous things. Is that what we're going to turn our criminal justice system into? ...

... So if I understand what you're saying, we may be creating more danger for ourselves by following this preventive model?

... We are innocent until proven guilty; we are not guilty until proven innocent. There's something about this preventive model, if it's taken to an extreme, that errs on the side of guilt and potential guilt. ... Maybe it has become the idea of the United States to have pre-emptive mechanisms, but there's a third thing here: You have the military pre-emption idea; now we have the criminal justice pre-emption idea; but what we're missing is the public policy pre-emption idea. We have totally lost it. The third leg or the third pillar in this needs to be thinking about how to work with alienated communities -- Muslim and otherwise -- to create a mechanism by which, if we think they are risks in the future, we can prevent that risk by how we deal with them in terms of public policy. ...

... That's a critical element, you're saying, in building a counterterrorism policy here at home.

Yes, and I want to say that this is something that the Europeans, and particularly the British, have given a great deal of thought to, and [they] understand that law enforcement is not enough. The criminal justice system is bearing too much of the burden, and that's what these cases show. This needs to be done in a much more holistic policy way, and it's not being [done].

[9/11 Commission Co-Chair] Tom Kean said to us the real nightmare is a WMD attack; that's what we really should be worried about. In the cases that the Justice Department has brought, what role does WMD play in those cases?

None. I can answer that very quickly because, if you look at [the Justice Department's] own report on cases since 9/11, ... they have a section on WMDs, and in that section on WMDs, they highlight four cases.

Those four cases are about very amorphous, opaque cases, but they're mostly silly in the sense that one of them is a guy wearing a [ricin] necklace ... around his neck and being classified as a WMD menace. ... We're not finding Islamic terrorism WMD cases that are coming to the fore -- even by the Department of Justice's own report. So I agree with you: WMDs are the issue, and, for whatever reasons, they don't seem to be coming through the courts.

And do we see any ... WMD -- that is, fissile material or people with plans -- ... coming into the United States?

Not that I know of, but that doesn't mean there aren't cases that we don't know of that might not have come through the courts. There are a number of cases that are, in the categorization of the Department of Justice report, hoaxes. There's some actually rather interesting cases, one in particular over the Mexican border, where they really thought there was a WMD threat. I think you have to pursue those things, and you have to be willing to have cases that, [upon] investigation, have failed. I don't want to say that there are no WMDs and we shouldn't be watching out for them, but ... however you want to interpret that, we're not finding them. ...

... You have a lot of contact with prosecutors and law enforcement. Do they tell you that they're under pressure to bring counterterrorism cases?

No, ... they don't tell me they're under pressure, but they go out of their way to make the case that they consider themselves successful in what they're doing. I don't think the Department of Justice is -- that they are bad attorneys, OK? I don't think that's what happening. I think that they are given a rather impossible task, which is find what can't be seen. That is ... a prescription for disaster, actually. They should be saying, "We're only going to find what can be seen." ...

[But] in our interview with Mr. Mudd, ... he says that's exactly what he's looking for: what he doesn't know. You're saying that's a prescription for disaster?

I'm saying ... that doing it for the intelligence collecting ... and then how that's going to fit into the court procedure may be two very different methods of fighting terrorism. ... When we broke down a wall between the intelligence agencies and the courts, what actually did that do? Were there problems for that in terms of what it meant for intelligence gathering or even for our court system? I think it's something that has to be thought about.

What they're saying is the priorities have changed since 9/11. We missed 9/11; we didn't put the dots together on 9/11. So there have been all these changes ... and reforms, and the ideal is to pool all of this information and make sure it doesn't happen, and whether you can prosecute in the court or not, that's secondary.

OK. At the risk of sounding very unpopular, somebody could probably make the case for the fact that 9/11 was not just about not connecting the dots. There were people who were connecting the dots, if not to this exact day and time, but the fact that they would use planes as weapons, that they would go after buildings. There were people who were not listening. It doesn't matter who you talk to or who you read -- this is a fact: that there were worries about Al Qaeda; there were worries about an attack with a plane and using it as essentially a bomb. ... So it wasn't just about connecting the dots. It was about ... having Al Qaeda and the threat of Islamic terrorism taken into account at the highest level. To redo our entire system, what we need are a few good, smart, wise people in charge.

You think the reorganization [of the federal government] was an overreaction?

Yes, I think the reorganization was an overreaction. That doesn't mean there didn't need to be things done to prevent terrorism, both in terms of border security, in terms of our policy with the TSA [Transportation Security Administration]. There are a number of very smart reforms that had to go into place, many of which did go into place. But to redo an entire country's structure, motives, policy, sense of identity because of this attack seems to me, in hindsight -- and again, I wasn't there at the time -- in hindsight to have been a, an overreaction, and b, not helpful in the war on terror. ...

... You could argue that we are less safe?

We are less safe.

Because?

The obvious is that we've alienated the Muslim community both at home and in the Middle East. The less obvious is that we are using our time, energy, resources, money, talents to do things like bring cases that don't have the substance that we need instead of putting all of our efforts into an intelligence agency and intelligence system that knows how to ferret out terrorists. ...

... From your perspective, do you think that Al Qaeda is here in the United States? Do you think that there are terrorists among us?

There may be some dangerous terrorists among us. Compared to the rest of the world? No. Europe is a good example. Compared to Europe, we don't have the volume of potential terrorists in terms of the populations that they seem to be coming from, and we don't have the evidence of the kind of plots that Europe has on a monthly basis, and the kinds of convictions they're able to get, because they do have people who are plotting constantly, across borders, internally. You can read these statistics two ways: Either we're incompetent, which I don't think we are, ... or the terrorist menace as we've conceived it is not here. ...

You're saying that if there's an enemy within the United States, it may be ourselves?

Well, I think that we've done great harm to ourselves; we've done harm in the way we've put pressure on the judicial system without having open discussions about it or any sense of accountability about what they've actually accomplished. ... We've harmed our sense of who we are. We are not a population ruled by fear. We're a population that accepts risk. ... We allow for mistakes and for bad guys, but we don't turn ourselves into a fearful, suspicious population. When we've done it, in the Cold War and in other times, we've made fun of it afterwards. We've regretted it afterwards, and we will regret this afterwards.

We'll regret these prosecutions?

We will regret the way the war on terror has come to dominate our domestic life, and the prosecutions are part of that. ... We may be involved in a global war on terror, but we're still a country separate unto ourselves, and that's one of the things that we've lost a sense of.

I can hear someone ... [say] you don't get it; the rules did change, not because we wanted to change them but because Sept. 11 changed them. People came from outside to the United States and carried out the biggest terrorist attack in the history of the world right here, and they might do it again.

They might. Our job is to prevent them from doing it in the smartest way possible. And the smartest way possible is having the absolute best intelligence agencies and being connected to the other prosecutors and intelligence agencies around the world so that we know ... who the threat is, where they are and what they're going to do to us.

What do you mean, good intelligence? ... We don't have people inside these organizations?

Well, that would be something for the law enforcement agencies, the intelligence agencies to answer, but those that I have talked to wish they had better penetration. ... I'm sure it's better than it was since 9/11, but that's what this is about: This is about getting inside and ... finding out what's going on without your interfering, and just listening and knowing. ... We can disrupt this or prevent this or claim this or claim that. This is about getting to know a very large portion of the globe -- who they are, what they're doing and their own time frame, and their own way of seeing the world. We can have these petty little convictions, but it's irrelevant to the menace.

And the menace is?

The menace is Islamic fundamentalists; violent, radical terrorism. Whatever words you want to choose, that's it.

So when you see cases like the JIS [Jam'iyyat Ul-Islam Is-Saheeh] case in Los Angeles, what's your reaction?

My reaction is that that's a case where that is more like a gang crime than something tied to an international jihad and that it should be prosecuted as such, but [it] should be paid attention to in terms of how homegrown cells can copycat [on] their own and spring up. But in terms of understanding the global network, that's probably not a case that I would follow all the way to the battlefields of Afghanistan or elsewhere. ...

... They told us that the [JIS] involved 400 law enforcement personnel and 23 agencies.

Wow. Do you think that was an excessive use of manpower for one case? I think that that would point to inefficiency rather than efficiency in counterterrorism. It also points to the notion of how we've organized things in a way ... that is not focused; that is, we rely on massive quantities rather than pointed investigations. This has been true since the beginning of this so-called war on terror, and this case seems to be another example of it. ...

... I noticed in the Justice Department list of cases more than one that involved Latino or Hispanic [defendants], cases involving Colombia and other countries, and that in general the definition of who the enemy is, is expanding.

Yeah, well, the definition of who the terrorist enemy is, is expanding. For example, in the original terrorist trials that were reported ... between 2001 and 2004, a number of them were drug cartel cases. Now, there are some links between drug cartel networks and terrorism networks, but that's not what these cases were about. We don't know what we're dealing with, and as a result we're trying to turn over every stone and see what's underneath it. Our borders -- both our southern borders and our northern border -- are of concern. So all of these issues, whether it's passport fraud or drug-money networks, legitimately you could put them under terrorism crimes if you wanted to. But in terms of disrupting the enemy where it lives and understanding the enemy, it's the symptom. It's the symptom. ...

... It's almost, though, like we've gone full circle over the last 35 years: We used to have a large national security division of the Justice Department; we used to have the sharing of intelligence information with criminal investigations; we used to have warrantless eavesdropping; and we used to have a lot of prosecutions that we were told were brought because ... you can't get them for something else.

Right. And the reason we dispensed with that old criminal justice system of decades ago is that we thought we could do justice well by putting more faith in human beings. ... We've gone full circle, and that's unfortunate. Probably we'll hopefully relive the cycle the other way, but we're only going to get to that point when we feel confident as a society. Right now we do not feel confident; we do not feel stable; we do not feel strong. ...

... [Would] you say that the government of the United States is, let's say, involved in the politics of fear?

Yes. They're involved in the politics of fear. But it's not necessarily their fault. 9/11 was a fearful event. ... The Bush administration has said to us: "We will do what we need to do to protect you, and you go and you live your lives. You do what you've always done." That has been the message from the start. On the one hand, we're being told there's a new paradigm; there's a paradigm change. On the other hand, the American public is being told, "Just live your life the way it is." ... It's not just the politics of fear; it's the politics of protection, which is the other side of the politics of fear. We don't want to participate in rethinking our Constitution, rethinking our system, thinking about whether or not we want emergency measures in place or not. We just want to live our lives the way we did before 9/11. So it's not just the Bush administration.

We don't want to deal with the hard questions.

We don't want to, and we haven't. We haven't dealt with the hard legal questions. We haven't dealt with the hard public policy questions. ... We have a false sense of thinking that we've taken the emotional and institutional steps to deal with what the war on terror means to going forward for the United States.

So we're less safe?

We're living more in denial. We're less aware. We're more fearful, and being more fearful makes us less safe, because it allows us to have things done in our name that will essentially keep us safe. In the short run, they may keep us safe, but in the long run, they could be our undoing. ...