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Winning the Prosecution of Terror War By: Bill West
FrontPageMagazine.com | Thursday, January 15, 2004

Two recent Federal criminal cases highlight one important aspect of how the Justice Department and Federal investigative agencies have prosecuted the domestic war on terrorism since the 9-11-01 attacks.  These cases, from a strategic perspective, are reminiscent of the case that started the whole “get ‘em on anything you can” philosophy in law enforcement, the case against the notorious Chicago gangster Al Capone.

Capone, who was widely known during the Depression to be one of the most murderous organized crime chiefs in America, was so well insulated by his criminal organization that investigators and prosecutors could never develop court usable evidence against him.  The whole world knew Capone was a bad guy, but he remained free.  That is, until an aggressive and progressive band of Feds led by Eliot Ness came along and put him away for tax violations.

That concept resurfaced in a major way in the early 1980s with the creation of Federal drug task forces.  Those multi-Agency task forces brought together various Federal, State and local law enforcement agencies to target drug and organized crime groups and to pursue them on whatever viable violations were developed, be they narcotics, weapons, tax, contraband or immigration violations.  The system worked, and over the years many a gangster, drug dealer and money launderer went to prison and, in the cases of those who were foreign nationals, ultimately deported, as a result.

Well before the 9-11 attacks, the FBI recognized the value of this task force approach in its Joint Terrorism Task Force (JTTF) program, assembling a variety of Federal and sometimes State and local law enforcement agencies to conduct counter-terrorism investigations.  Unfortunately, pre-9/11, the JTTF program was relatively small, confined to only the largest US metropolitan areas and, it was not the highest FBI priority.  It was certainly not the highest priority in other Federal agencies like the INS.  Nonetheless, the multi-agency approach worked well, and provided the foundation for expanded post-9/11 investigative and prosecution efforts nationwide.

Evidence in counter-terrorism investigations, which support specific terrorism charges, is seldom sterile and available to use in open court.  It often comes from or links in significant ways to classified intelligence.  Even with changes afforded in the USA PATRIOT ACT which make conversion of classified intelligence to criminal evidence easier, the practical considerations that have always come into play in such matters still exist – will that process compromise sources and methods?  If that compromise is determined to be too risky, then court usable evidence may not be developed.  That does not mean the suspect is not a terrorist, it means investigators and prosecutors can’t go forward with specific terrorism criminal charges.  Enter Al Capone.

Many times over since 9-11, prosecutors and agents nationwide have faced this dilemma and have decided to pursue “lesser” charges against suspects they know are involved in terrorism or terrorism support activities.  Sometimes these are criminal violations; often they are immigration deportation charges.  Unfortunately, when the Government pursues these tactics, it is often relentlessly criticized for “selective” or “discriminatory” prosecution.  The fact that only a few terrorism specific prosecutions have resulted since the 9-11 attacks is touted by some as proof that the Justice Department and investigating agencies either don’t know what they are doing or there really isn’t a threat out there.  It is interesting that the critics often appear to be apologist fronts for radical Islamic terrorist groups and certain of their lapdog spokespersons, generally an assortment of left-wing attorneys and politicians. 

The two cases mentioned earlier are those of Soliman Biheiri and Fawaz Damra.  Biheiri, an Egyptian who was recently convicted in the Federal Eastern District of Virginia (Northern Virginia) for unlawfully procuring U.S. citizenship, was sentenced this week to one year in prison.  The Court also revoked his U.S. citizenship, therefore rendering Biheiri once again an alien, subject to potential removal from the United States once he completes his sentence.  Biheiri was identified during a larger and ongoing investigation into alleged terrorism financing schemes involving various Northern Virginia charities with suspected ties to Hamas, the Palestinian Islamic Jihad (PIJ) and other Middle East terrorist groups.  Biheiri was not charged with specific terrorism violations, but Federal investigators and prosecutors presented evidence linking him to Hamas leadership and money.  Given the totality of the circumstances, it would appear we are better off with Mr. Biheiri where he is, facing probable removal from the United States in a year, than not.

Damra was arrested in Cleveland, Ohio on January 13, 2004 for the Federal charge of fraudulently obtaining his U.S. citizenship in 1994, allegedly because he lied to the INS about his support for the PIJ and his support for the persecution of people, namely Jewish people, because of their race and religion.  Damra, an Imam of a mosque in Cleveland and a locally well-known Muslim cleric, is not without prior notoriety.  He was an unindicted coconspirator in the first World Trade Center bombing.  He surfaced in the Tampa PIJ investigation as a confederate of University of South Florida professor Sami Al-Arian, who is awaiting trial next year on a fifty count Federal terrorism indictment.  Damra was shown on a 1991 videotape wherein Al-Arian also appeared, and Damra exhorted the audience to give money to the Islamic Jihad and praised certain acts of violence Islamic Jihad operatives had committed. 

There is other evidence against Damra, but he is presumed innocent and he has only been indicted and the charge is merely an allegation at this point.  Mr. Damra is entitled to full due process of law and he will undoubtedly receive notable support from various quarters.  The case, however, demonstrates the persistent and capable investigative and prosecution efforts of dedicated Federal law enforcement personnel, bringing what had been a “loose end” of the Tampa PIJ case to closure after many years.  Damra was not charged with specific terrorism violations, but the alleged activity underlying the immigration charge is linked to terrorism.  If the charge is proven in court, would we have been better if the Government had not pursued the matter?

And, that really is the issue.  Forget the protestations of the apologists.  Their agenda is self-evident.  They simply don’t want Government agents and prosecutors looking at the people they represent.  The truth is, Americans have dedicated law enforcement professionals hard at work under very trying circumstances doing the best they can to protect us.  The fact we don’t have scores of terrorism-specific prosecutions underway around the country at any given moment doesn’t mean there aren’t scores of terrorism related cases being prosecuted and pursued.  The fact there has not been another terror attack within the United States since 9-11-01 is due, in largest measure, to the efforts of those quiet professionals whose work I’ve described here.  We all owe them significant gratitude.

Bill West retired as the Chief of the National Security Section for the INS in Miami, Florida and is now a consultant for the Investigative Project, a Washington DC-based counterterrorism research institute. 

Bill West is a retired INS/ICE Supervisory Special Agent who ran organized crime and national security investigations. He is now a counter-terrorism consultant and freelance writer.

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