A Judge has had a motion to dismiss the convictions in the Ashcroft-heralded Detroit Terror trials under advisement for months. Prosecutorial misconduct is one issue. Now there's another:

The Bush administration's already troubled case against an accused terror cell in Detroit is being dealt another blow with revelations that a witness came forward after the trial to undercut a key piece of video evidence presented to jurors.
Lawyers and Justice Department officials said Wednesday night that a man shown in a videotape of landmarks in New York, Las Vegas and California has told investigators the tape was an amateur film and not surveillance as prosecutors portrayed at the trial of four suspected terrorists.

The witness interview was conducted in January, months after the trial in Detroit ended, and was turned over this summer to defense lawyers. It could deal a significant blow to the Bush administration's first major terror prosecution since the attacks of Sept. 11, 2001.

Here's a recap of the previously known problems with the case which are under investigation by the Justice Department:

Anybody wonder what they did to this arrestee to make him cooperate and give up his buddies so quickly?

American intelligence agencies have coordinated closely with their counterparts in the Pakistani capital, Islamabad, throughout the operations which led to the arrest of Ahmed Khalfan Ghailani and Muhammad Naeem Noor Khan....Mr Khan, a 25-year-old al-Qaida computer expert, was encouraged to take part in a sting operation against his former colleagues after his capture, it was confirmed yesterday. While he was in custody he emailed his contacts in the organisation.

"Initially he was trying to dodge the investigators, but after some time started cooperating," said a government official. "He was asked to continue his job by sending email messages to trace the links and codes of al-Qaida operatives abroad and in Pakistan."

Pakistan says both men may be extradited to the U.S.--after Pakistan is finished with them.

Pakistan's interior minister, Faisal Saleh Hayat, said yesterday: "We can not extradite these terrorists until the completion of investigation by our security agencies, as they had plans to carry out terrorist activities in Pakistan.

As if there will be anything left of them to extradite by then.

Moroccan Mounir El Motassadeq is scheduled to be retried in Germany on terrorism charges related to 9/11. His lawyer now plans to argue that the charges should be dismissed because of the likelihood that information from Ramzi Binalshibh, which the Government intends to introduce at trial, was obtained through torture by U.S. personnel:

Key evidence in the planned retrial of a September 11 suspect in Germany was probably obtained by U.S. authorities under torture, his lawyer alleged on Wednesday as he called for the case to be thrown out. Lawyer Josef Graessle-Muenscher said he would use the torture charge to press for the case against Moroccan Mounir El Motassadeq to be dropped as soon as the retrial gets under way in Hamburg next Tuesday.

...The German court case revolves around Ramzi bin al-Shaibah, a captured al Qaeda leader who knew Motassadeq in Hamburg. Both were part of a circle of Arab students there which included Mohamed Atta, Marwan al-Shehhi and Ziad Jarrah, three of the suicide hijackers who led the attacks of September 11, 2001. Germany has asked the United States to provide information from the interrogation of bin al-Shaibah, who was captured in Pakistan in 2002, which could help secure a conviction in the Motassadeq trial.

....Motassadeq became the first person anywhere to be convicted in connection with September 11 when he was sentenced to 15 years' jail in 2003 for aiding and abetting several thousand murders and belonging to a terrorist organization.

More torture details here.

One day after the Supreme Court decisions on detainees and enemy combatants, the Military announced the formation of three tribunals to try David Hicks of Australia, Ali Hamza Ahmed Sulayman al-Bahlul of Yemen and Ibrahim Ahmed Mahmoud al-Qosi of Sudan.

The three have been charged with conspiracy to commit war crimes and other offenses. They could face up to life in prison if convicted, the Pentagon has said previously, ruling out death sentences for the three. Al-Qosi is alleged to have been an al-Qaida accountant and bin Laden bodyguard, while al-Bahlul, of Yemen, is accused of being a propagandist for bin Laden who produced videos glorifying the killing of Americans, according to an official list of charges released by the Pentagon in February.

The men are alleged to have trained at al-Qaida camps in Afghanistan, but the Pentagon's list of charges makes no mention of either man carrying out or planning any terrorist attack. Hicks, 28, a convert to Islam, is accused of training at al-Qaida camps and taking up arms against U.S.-led forces. Charges include war crimes conspiracy, attempted murder and aiding the enemy. The attempted murder charge relates to claims he was an "illegal combatant."

The presiding officer will be Retired Army Col. Peter E. Brownback III. The military says yesterdays' Supreme Court decisions have nothing to do with today's announcement and that it was just time to move the cases forward. The DOD announcement is here.

The Prosecution's and Michael Tigar's opening arguments from today in the Lynne Stewart trial are available online here . You might want to bookmark the site, Cryptome.org, as they have been putting all the jury selection and pre-trial hearing transcripts online daily. They post the transcripts the same day.

Michael Tigar's opening line:

Members of the jury, for 40 years in this town Lynne Stewart right here has been building for justice and not for terror. And when the end of the case comes and I stand before you, I submit that the evidence will show that anybody who says different, claims different, argues different, either sees these things very differently, is relying on faulty intelligence or is acting from an outright desire to mislead you.

Tigar is one of the nation's great trial lawyers. In the Terry Nichols' federal trial, in which he succeeded in obtaining a life verdict vs. death for Nichols, his theme was that Terry Nichols was building a life, not a bomb.

Here's some snippets. They have the transcript page numbers in them because we don't have the time to strip them.

by TChris

When the Bush administration isn't responding to critics by attacking them, it tries to intimidate them. Defense attorney Michael Tigar made that point Friday as he argued that the government's attempt to subpoena reporters to testify in the trial of his client, Lynne Stewart, was another administration effort to intimidate the media. (TalkLeft background on the prosecution is collected here.)

"This administration has tried to intimidate, manipulate, harass, and if necessary punish any independent voice that questions its relentless pursuit of power," he said.

Prosecutors have subpoenaed staff reporters working for Reuters, the New York Times, Newsday and a freelance journalist who have written about Stewart. Tigar said the subpoenas were an "effort to use the media as an instrument of prosecutorial policy."

by TChris

Two of the government's key sources of evidence against Zacarias Moussaoui have told conflicting stories. Under the best of circumstances, stories told by informants are unreliable. When the stories don't match, it's time to look for better evidence.

[Ramzi] Binalshibh, the self-described coordinator of the attacks on the World Trade Center and Pentagon, said he sent $14,000 to Moussaoui in July 2001 on instructions from [Khalid Sheik] Mohammed that he understood to be "part of the 9/11 plot," the commission's report says. The report says "there is good reason to believe" that Mohammed was preparing Moussaoui as a potential substitute pilot because one of the 19 hijackers was considering dropping out.

The language is a bit speculative, but this would be powerful evidence if it could be corroborated. Mohammed would be the logical source of corroboration if Binalshibh is telling the truth, but Mohammed has a different story.

Mohammed, who was al Qaeda's operations chief, "denies that Moussaoui was ever intended to be part of the 9/11 operation," the report says. Instead, it says, Moussaoui was being groomed for a second wave of attacks on the West Coast after Sept. 11. That wave fizzled, and Mohammed said the two other pilots who had been recruited for it already had backed out before Moussaoui was arrested in August 2001.

The government's theory may be that Moussaoui conspired to do something (even if it's not quite sure what), a theory that Moussaoui may be able to refute if he's allowed to question Mohammed and Binalshibh. The government hasn't been inclined to let that happen (TalkLeft background on the issue collected here). Not only has Moussaoui been denied the right to see the complete statements, but his ability to have a fair trial (if he ever has a trial) has been compromised by the public disclosure of portions of statements that don't tell the whole story.

Sources close to the case said the detainees' statements released by the commission are incomplete, adding that Binalshibh indicated at different points in his interrogations that Moussaoui was not part of the Sept. 11 plot. Both the federal judge overseeing the case in Alexandria and a federal appeals court have found that the detainees gave interrogators information that could help Moussaoui's case.

If the public gets to see evidence that hurts Moussaoui's case, shouldn't Moussaoui be able to see evidence that helps him?

U.S. District Court Judge Lonnie Brinkema sentenced three defendants in the paintball terror case today. One got life, one got 85 years and one got 8 years. The Government described their criminal activity as

....training for holy war against the United States by playing paintball games in the Virginia woods as part of a jihad network.

Judge Brinkema was not happy about imposing the lengthy sentences:

Leonie M. Brinkema, the federal district judge who imposed the sentences, said that they were "draconian" but that she had no choice under federal law. "We have murderers who get far less time," Judge Brinkema said. "I've sent Al Qaeda members planning attacks on these shores to less time. This is sticking in my craw. Law and justice at times need to be in tune."

Judge Brinkema's comments are especially noteworthy since she was the judge who tried the case and found the defendants guilty--they had waived their right to a jury trial. She is also presiding over the on-again, off-again trial of Zacarias Moussaoui.

Over at Tapped, Charles Pierce has the wittiest piece on former President Ronald Reagan.

Herewith Inspired By The Wellstone Elegy: November 2, 2002, by Peggy Noonan, Journalist, Author and Aquatic Mammal Divine.)

We're in Washington, for reasons unrelated to Mr. Reagan. A big thanks to TChris for filling in for us today. We're at an executive officers' retreat for the National Association of Criminal Defense Lawyers. We'll be posting mostly mornings and evenings until we return to Denver Sunday.

Brandon Mayfield is the Oregon lawyer arrested and held in detention for two weeks due to an erroneous fingerprint match by the FBI. The FBI has apologized to Mayfield, but Spanish forensic experts are still blaming the FBI for their insistence that they were right about Mayfield's fingerprint being on a bag linked to the Spain train bombers when they were wrong:

...in interviews this week, Spanish officials vehemently denied ever backing up that assessment, saying they had told American law enforcement officials from the start, after their own tests, that the match was negative. The Spanish officials said their American counterparts relentlessly pressed their case anyway, explaining away stark proof of a flawed link — including what the Spanish described as tell-tale forensic signs — and seemingly refusing to accept the notion that they were mistaken.

"They had a justification for everything," said Pedro Luis Melida Lledo, head of the fingerprint unit for the Spanish National Police, whose team analyzed the prints in question and met with the Americans on April 21. "But I just couldn't see it." The Spaniards, who continued to examine the fingerprints, eventually made their own match, to an Algerian citizen, whom they then arrested.

All of our Mayfield coverage is accessible here.

Isabel Hilton, a visiting professor at Harvard, writing in The Guardian, explains why Britain should refuse to extradite Abu Hamza.

...the measure of a legal system's virtue does not rest on how it treats lovable innocents, but on how it tests the evidence against those whom public opinion is ready to condemn. Thus far, the British authorities clearly found Abu Hamza guilty of terminal unlikeability. They had not, however, charged him with anything more. Now a British court must decide on his extradition to the US. There are many reasons for extreme caution.

The Guardian has several interesting articles on Abu Hamza al-Masri, the Muslim cleric in London charged by Indictment in the U.S. One article questions whether Mr. Hamza is a terrorist at all--or just a talker seeking martyrdom.

US and European authorities have fumed at Britain's failure to lock up Mr Hamza. But sources in Britain still believe him to be a rhetoric-filled windbag, not an al-Qaida commander. Some now fear that high-profile arrest and the media spotlight will turn him into a willing martyr.

The article also confirms what we suggested yesterday, that it was James Ujaama who brought the Government its case against Hamza by providing information in exchange for a light sentence of his own. The Guardian points out that almost all of the evidence gathered by the U.S. is "supergrass"--meaning it comes from terror suspects in U.S. custody. From the Guardian:

It was the arrest and trial of an American Muslim convert called James Ujaama that opened a chink in the cleric's armour and gave the FBI and other US agencies the evidence they felt they needed to nail Mr Hamza.