Don't miss Juan Gonzales' op-ed in today's New York Daily News on the recent trial of three alleged American mercenaries in Afghanistan. He says it was a sham from the start. Criminal defense lawyer and TalkLeft pal Bob Fogelnest represented one of those on trial, Edward Caraballo, a 42 year-old Emmy-winning journalist from the Bronx. Caraballo received an eight-year sentence. The men were charged with conducting their own personal war on terrorism by illegally detaining and torturing Afghan civilians in a private jail. Some snippets from Mr. Gonzales' column:

Here we go again. Attorney General John Ashcroft has filed another terror Indictment. It sounds like he got the information from "dirty bomb" suspect Jose Padilla....who has been sitting in a military brig in South Carolina for the past 2 1/2 years, without charges being filed against him. The Government repeatedly has said it is not finished trying to interrogate Padilla.

A 10-count grand jury indictment handed up in federal district court in Miami charges Adhan Amin Hassoun and Mohamed Hesham Youssef with providing material support to terrorists and conspiracy to provide support. Hassoun has been in custody on other charges in Florida since June 2003 and Youssef is jailed in Egypt on a terrorism conviction. The indictment contends Hassoun helped recruit individuals from the United States for groups engaging in Islamic "jihad," or holy war, in countries such as Afghanistan, Somalia, Chechnya and Kosovo..

Before discussing the trial and sentence of the three Americans convicted of running a private jail in Afghanistan and torturing prisoners, I'd like to recognize the dedicated work of New York defense lawyer, Bob Fogelnest, a good friend of mine. I wrote about him in April when he started a weblog Mullah Bob, about his journey to Afghanistan to mentor and supervise six Afghan criminal defense lawyers and participate in training programs designed to help improve the quality of justice and bring the Rule of Law to war-torn Afghanistan. This was supposed to be a two month venture, which he did without pay, receiving only expenses.

Bob ended up defending one of the three Americans charged with torturing Afghan prisoners. The men were found guilty and yesterday the Judge sentenced two of them to ten years in prison and one to eight years. Bob's client was Edward Carbarallo, a New York Journalist invited to Afghanistan to make a documentary on America's war on terror.

The Fourth Circuit today delivered a big blow to Zacarias Moussaoui. While agreeing the Government improperly refused to allow him to interview witnesses being held as enemy combatants who may be able to show he was not a member of the 9/11 attack conspiracy, it said the Judge's remedy of preventing the Government from seeking the death penalty was excessive:

In affirming a lower court ruling, the three-judge panel found "that the enemy combatant witnesses could provide material, favorable testimony on Moussaoui's behalf." But the panel said the lower court's remedy of removing the death penalty was not the proper way to penalize the government for refusing to grant Moussaoui adequate access to the witness statements.

Rather, the court said, the solution should have been for the defense, the prosecution and the judge to decide, for presentation to a jury, statements that would support Moussaoui. The defense must have a major role in crafting a compromise, the court said.

The Washington Post takes Ashcroft and the Justice Department to task for it's abysmal handling of the Detroit terror case that ended with DOJ asking the Judge to overturn the convictions. The editorial provides a succinct description of the case and its failures, and then asks,

.... how did errors so fundamental go undiscovered for so long in such a high-profile case? Why were the department's counterterrorism officials not more closely supervising the work of prosecutors in the field? Why were red flags not raised when officials of different agencies -- as the department now reports -- became concerned that Mr. Convertino was interested only in analysis that supported his case? Mr. Ashcroft needs to answer these questions and make sure that future terrorism cases are not plagued by such dangerous errors again.

Can the Detroit terror case get any more embarassing for the Government? Now that the terrorism convictions have been tossed by the Judge, at the Department's request, the New York Times reports that DOJ investigators seek to polygraph the senior prosecutors on the case to determine whether they leaked the name of an informant.

In a pointed letter sent to the Justice Department last month and obtained this week by The New York Times, Senator Orrin G. Hatch of Utah, chairman of the Senate Judiciary Committee and regarded as the department's strongest advocate in Congress, questioned whether officials at the agency "are fully cooperating" in an investigation into the leak, "including submitting to polygraphs."

Congressional officials said they were concerned that the department, which after an investigation has placed blame for the collapse of the Detroit case largely on a single prosecutor, Richard G. Convertino, appeared to have resisted the idea of requiring polygraph examinations for a small group of officials who had access to the name of the informant.

Bump and Update: As anticipated, the Government asked the Court to toss the Detroit terror convictions:

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original post from midnight:

Admitting that the Government withheld exculpatory evidence from the defense, the Department of Justice will ask the Judge in the Detroit terror trial to throw out the convictions.

The convictions of two Moroccan immigrants for conspiracy to provide material support for terrorism and of a third man on document fraud charges represented one of the government's most significant victories in the war on terrorism in the aftermath of the Sept. 11, 2001, attacks.

....Rosen and the Justice Department have been investigating allegations that two assistant U.S. attorneys withheld information from the defense. The department is continuing an investigation of one of the prosecutors, Assistant U.S. Attorney Richard Convertino, who has responded by suing the government. He alleges that Justice undermined the prosecution and sought to make him the scapegoat.

Attorney General John Ashcroft must share the blame for this travesty of a trial. So must Richard Convertino, who is no whistle-blower in our book. More here and here.

Send good thoughts to Josef Gräßle-Münscher, the chief criminal defense attorney for accused terrorist Mounir el Motassadeq . He had a serious motorcycle accident this weekend. According to reports in the German press it is unlikely that he will survive.

He was born in 1946 in Bavaria and is practicing in Hamburg. His is one of the main criminal defense attorneys who have specialised in defending accused
terrorists.

Lawyers who fight to protect the rights of the most despised among us are ensuring that those rights will be there for you when you need them. Our prayers go out to him and his family.

We wrote last week about the federal bail hearing for two Islamic men in Albany in an Ashcroft terror case that was coming apart at the seams. Today, they were ordered released from custody, and the Judge blasted the prosecution:

Two Islamic men accused of supporting terrorism after an FBI sting operation were ordered released from jail on Tuesday by a judge who blasted the government's case by saying there is no evidence they have any links to terrorists. U.S. Magistrate David Homer ruled Yassin Aref and Mohammed Hossain should be released on $250,000 bonds and held in home detention under electronic surveillance while they await trial. He said that could take up to two years so the men will be allowed to work and attend mosque until the trial.

Defense lawyer Terry Kindlon had this to say:

Defense attorney Terence Kindlon said the government was not merely overzealous but had presented false information. "We've gone from something that sounded sinister and ominous and scary and terrible to zero in less than two weeks," he told the judge. "Our government doesn't need to go after a pizza man and an Iman who are perfectly innocent." He added: "All we have here is basically the wreckage of the first hearing at which the government presented a lot of information that turned out to be bogus."

This seems a little excessive. I'm not familiar with the case, but I received an e-mail asking to help raise public consciousness on it, and given the draconian penalties, ask you all to take a look and see what you think. Trial is set for September 27. More information is available at this Free Dhafir website.

On February 26, 2003 Dr. Rafil Dhafir of Manlius (a suburb of Syracuse) New York and 3 individuals involved with the charity Help the Needy were arrested and charged with breaking the International Emergency Economic Powers Act (Iraqi Sanctions), and with 12 counts of money laundering and one count of conspiracy to commit money laundering. For that very same act of compassion (providing humanitarian aid to Iraq) Dr. Dhafir was placed on Saddam's Hit list, marked for death should he ever go back to Iraq. .... Dr.Dhafir is the only person to be arrested for breaking the sanctions.

In the interest of justice, we demand that the government drop immediately the original charges of violating the International Emergency Economic Powers Act and various money laundering charges against Dr. Rafil Dhafir. It is our contention that these charges are prompted by his humanitarian aid to Iraq, which does not constitute a threat to the security of the United States of America. We demand that the government makes every effort to help him re-constitute his life and medical practice. We demand that the government issue an apology to Dr. Dhafir and to the 150 predominantly Muslim families that were inappropriately interrogated on February 26th 2003."

Your tax dollars at work. Ashcroft's latest "terror" prosecution in Albany, New York appears to be coming apart at the seams.

While the government presented no evidence during a bail hearing in Albany last week that Mr. Hossain had any ties with extremist groups, prosecutors did tell the judge that they had reason to believe Mr. Aref might be connected with a terrorist group known as Ansar al-Islam. Prosecutors said they were given information from the Defense Department that a notebook with Mr. Aref's name and address had been found in what they said was a terrorist training camp in the western Iraqi desert near the Syrian border. They also said that a word in the notebook, written in Arabic, had referred to Mr. Aref as "commander."

As it turns out, the word is Kurdish, albeit written using the Arabic alphabet, and the translation may be incorrect. "Commander" could be translated as "brother," according to federal prosecutors. Nijyar Shemdin, the United States representative for the Kurdistan Regional Government in Washington, reviewed a copy of the page at the request of The New York Times and said he did not see how a translation would have come up with the word "commander."

Mr. Aref's defense lawyer, Terry Kindlon, called the prosecution "shabby."

"It looks to me to be a two-bit frame-up," Mr. Kindlon said. "In 30 years of practicing law, I have come to expect high standards from government prosecutors. This thing is just shabby. I suspect that there is something political driving this."

Attorneys for so-called "American Taliban" John Walker Lindh, who received a 20 year sentence, are requesting a review of his sentence, based upon recent disclosures that the U.S. is negotiating with, and considering releasing, so-called "enemy combatant" Yaser Hamdi. Both Lindh and Hamdi are U.S. citizens:

A lawyer for Mr. Lindh, James J. Brosnahan, said in an interview that a decision to release Mr. Hamdi should prompt discussions in the Justice Department over whether Mr. Lindh deserved similar treatment. "We're not today saying exactly what we're going to do,'' Mr. Brosnahan said, "but this is a situation in which there's an enormous disparity, and basic fairness would conclude that the department ought to take a look at this."

He said Mr. Lindh had received especially harsh treatment because of the timing of his capture, which occurred within three months of the Sept. 11 attacks. "It was sort of a ferocious reaction to him, which in human terms is understandable but in terms of fairness is not understandable," the lawyer said.

John Walker Lindh was a trophy to the Justice Department. No way should he have received 20 years. At the time, with conservatives positing he should be charged with treason and receive the death penalty or at least a life sentence, his lawyers made the best deal they could.

But Lindh's lawyers are right: His sentence should be revisited. It was imposed at a time when emotional reaction to 9/11 were at a peak. Cooler heads should prevail now, and determine a sentence that reflects Lindh's actual criminal conduct, his ability to be rehabilitated, and the need to deter others. 20 years is excessive.