Terrorism Crimes—Senate Hearings

The Senate Armed Services Committee held hearings today on Iraq and Afghanistan.^[1] Testifying before the Committee were Secretary of Defense Donald Rumsfeld, the Chairman of the Joint Chiefs of Staff, General Peter Pace, and the Commander for the US Central Command, John Abizaid.^[2] During these hearings, Sec. Rumsfeld stated that the “war on terror is going to be a long struggle” between one side which “obeys the laws of war while the other side uses them against us.”^[3] Putting aside, for the moment, the Supreme Court’s finding that the laws of war were not obeyed in the treatment of detainees at Guantanamo, Sec. Rumsfeld and General Abizaid’s testimony is useful in that it generally lays out the policies of the United States vis-à-vis terrorism.

General Abizaid laid out three strategic objectives:

1. the US must “synchronize the appropriate diplomatic, economic and military means to defeat Al Qaida and its associated movements”;
2. the US must deter Iranian designs for regional hegemony, to include its sponsorship of terrorist organizations and its development of nuclear weapons”; and
3. the US must find a comprehensive solution to the corrosive Arab-Israeli conflict.^[4]

It is perhaps unsurprising that there is no law-enforcement component to the “war on terror” as envisioned by the Pentagon, but any diplomatic approaches will almost assuredly need some sort of law-enforcement strategy because of the massive unpopularity of Guantanamo Bay and other, secret, detention facilities.

These considerations were addressed by Attorney General Alberto Gonzales in his appearance before the Committee yesterday, in which he argued for “a new system for trying terror suspects [which] let[s] prosecutors withhold classified evidence from the accused.”^[5] He also asked that any legislation which addresses the tribunals involving the detainees in Guantanamo “should permit hearsay and coerced testimony, if deemed ‘reliable’ by a judge.”^[6] The Uniform Code of Military Justice forbids the use of such testimony,^[7] as do the Federal Rules of Evidence (with certain exceptions).

Senator Lindsey Graham, Republican from South Carolina, proposed an even more radical approach: “If the only way we can try this terrorist is to disclose classified information, and we can't share it with the accused, I would argue, don't do the trial. Just keep them. Because it could come back to haunt us.”^[8] In other words, he is arguing for indefinite detentions of people merely accused of terrorism.

Final legislation may reach the floor in September.^[9]

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[1] Opening Statements: US Senate Armed Services Committee Hearing on Iraq and Afghanistan, Wash. Post, Aug. 3, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Anne Plummer Flaherty, Gonzales Pushes Lenient Hearsay Rules, AP (via Yahoo!), Aug. 3, 2006.
[6] Id.
[7] Id.
[8] Id.
[9] Id.

Terrorism Crimes—Jihad Hekmat Dahabi

In February, a federal grand jury in Detroit indicted Marwan Othman El-Hindi, Wassim I. Mazloum, and Mohammad Zaki Amawi on terrorism-related charges.^[1] We discussed Mr. Amawi on February 28. A fourth man, Jihad Hekmat Dahabi, has now been charged with making false statements to “officials investigating what the US government says was a plot to recruit and train terrorists to attack US and allied troops overseas.”^[2]

Mr. Dahabi was interviewed by the FBI and Treasury Department agents in February, and in a second interview, in June, he “admitted providing false statements” about a meeting with Mr. El-Hindi.^[3] According to the government, he said in his June interview “that he prepared paperwork to create a corporation for [Mr.] El-Hindi and an associate,” which was different, allegedly, from what he said in February when he told “investigators that he had not filed the paperwork because he lacked necessary information.”^[4]

Mr. Dahabi, it seems, did not hire an attorney to assist him in his communications with the government.^[5] This is almost always a very bad idea. According to some news reports, Mr. Dahabi changed his story and “came clean” in June after “investigators showed [Mr.] Dahabi parts of secret audio and video recordings of an April 2005 meeting involving [Mr.] Dahabi, [Mr.] El-Hindi and another man—apparently Darren Griffin, the government’s informant in the case.”^[6] Allegedly, Mr. El-Hindi approached Mr. Dahabi to set up a charity to get government grants, and after he realized that “he was mixed up in something nefarious,” he “destroyed all the paper work after [Mr.] El-Hindi left his office.”^[7]

Making false statements to the government is a very harsh federal crime, and when it is in the context of a terrorism investigation, it is even harsher. Whereas a false statement is normally punished by a fine, imprisonment for up to five years, or both, making false statements in a terrorism investigation can be punished with a fine, imprisonment for up to eight years, or both.^[8] However, to successfully prosecute an individual for making false statements, the government must prove beyond a reasonable doubt that the false statement is about something material to investigation. In Mr. Dahabi’s case, the government will have to show that the proposed charity is an integral and material part of their investigation into the other three individuals, and that his false statements in the February interview materially impacted their investigation.

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[1] Michigan Man Charged with Lying about Ohio Terrorism Suspect, AP (via Detroit Free Press), Jul. 31, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Amanda Garrett, et al., Michigan Man Faces Charges Related to Toledo Terror Probe, Plain Dealer, Aug. 1, 2006.
[6] Id.
[7] Id.
[8] 18 U.S.C. § 1001(a).