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Was new indictment dictated by strategy?

Federal authorities jailed former University of South Florida instructor Mazen Al-Najjar on and off for five years, saying repeatedly they had secret evidence that tied him to terrorism.

Al-Najjar was never charged, and his legal struggles appeared to end in August 2002, when he was deported to Lebanon, whisked by federal authorities aboard a chartered jet to Beirut.

Then, last week, Al-Najjar became the latest defendant indicted in a terrorism case that includes his brother-in-law, former USF professor Sami Al-Arian, and seven other men.

Why would federal authorities work so hard to deport Al-Najjar, then turn around two years later and indict him, as the charges stem from activity alleged to have occurred mostly in the 1990s?

Prosecutors aren't commenting about the revised indictment.

"The timing could be seen as really strange," said former federal prosecutor John Fitzgibbons.

"It depends on your point of view."

Prosecutors may have unearthed new evidence or new witnesses that shored up their case against Al-Najjar, he said. Or, perhaps, on second blush, they realized they had enough evidence all along to indict him.

Prosecutors also could be looking for a strategic advantage. The trial of the original defendants, including Al-Arian, is scheduled Jan. 5. A new defendant and new charges force the defense to spend valuable time examining the new evidence.

The defense attorneys also could feel compelled to ask the judge to delay the trial, which is expected to last six months or longer.

Al-Arian attorney Bill Moffitt said he hasn't decided whether to ask for a continuance.

"Obviously the timing (of the revised indictment) was to put the defense in the worst possible position," Moffitt said. "The prosecutors do it to give themselves the greatest possible tactical advantage."

The updated indictment accuses Al-Najjar of helping Al-Arian run the North American arm of the Palestinian Islamic Jihad, a terrorist group considered responsible for more than 100 deaths.

Al-Najjar also faces perjury charges for allegedly swearing during an immigration court hearing that he was not affiliated with the group, did not know any group members and did not provide any support to the group.

The new indictment revises the one filed in February 2003 that accused Al-Arian and seven other men of supporting, promoting and raising funds for the group.

Al-Najjar's indictment might have less to do with Al-Najjar and more to do with Al-Arian, who is accused of being one of the groups's top officials, some local attorneys say. Indicting Al-Najjar, even if he is not brought to Tampa for trial, could allow prosecutors to bring out evidence against him and paint a more complete picture for jurors, strengthening the overall case against the other defendants.

Moffitt said another reason for the new indictment could lie in the grand jury system.

Generally, prosecutors are not allowed to use a grand jury to further investigate the same evidence in a case in which an indictment already has been handed down. They can, however, use a grand jury to investigate new charges or charge new defendants.

Moffitt said he thinks prosecutors purposely didn't indict Al-Najjar the first time around, even though they had all the evidence they needed. That way, they could continue to use the grand jury to investigate Al-Arian and the other defendants under the guise of investigating a new defendant, he said.

Moffitt doesn't think the prosecutors intend to actively pursue bringing Al-Najjar back to the United States to stand trial.

"They smear (Al-Arian) by smearing Al-Najjar. And Al-Najjar won't be there to defend himself," Moffitt said. "It compromises our ability to defend our client."

Revising the indictment also allowed prosecutors to clear up some discrepancies pointed out by defense attorneys. For instance, the original indictment referred to Al-Arian trying to acquire urea, a fertilizer ingredient that can be used in explosives.

Defense attorneys provided evidence at a hearing that it was a legitimate fertilizer deal in which Al-Arian had only a tangential role. The urea references do not show up in the revised indictment.

The original indictment also included prosecutors' interpretations and translations of hundreds of conversations, most in Arabic, taped during nearly a decade of surveillance of Al-Arian and the other men. In the revised indictment, a few of those interpretations and translations have been revised or edited out.

Moffitt said the second indictment gave prosecutors a chance to correct their mistakes before a jury could see them.

"They get to clear them up, which takes away some of our ammunition at trial," he said. "But the prosecutors aren't the only ones that have something up their sleeve."

Moffitt did not elaborate.

A month after Al-Najjar landed in Lebanon, officials there deported him to an undisclosed country. His wife joined him with their three children.

Last week, Al-Najjar's sister, who is also Al-Arian's wife, confirmed that Al-Najjar was still in that same Arab country working as a translator.

The indictment could keep him there. With the outstanding charges, he could be picked up on an international arrest warrant if he tried to cross into other countries.

"The indictment certainly limits Al-Najjar's movement," said Tampa defense attorney Marcelino Huerta. "It serves as a kind of tracking device."

Prosecutors would not say whether they knew where Al-Najjar was living or whether they intended to pursue bringing him back to the United States for trial.

"We cannot make any comment on the Al-Najjar situation," said U.S. Attorney's Office spokesman Steve Cole. "However, trying to bring a defendant back to stand trial when they are in a foreign country can be easy at times and it can be difficult at times. It varies country to country."

It could prove difficult to get Al-Najjar back to the United States. He is unlikely to come back voluntarily, and American authorities cannot generally go into a foreign country without permission and pick up a fugitive. That leaves extradition, a process with potential diplomatic pitfalls.

The foreign government has to comply with an extradition treaty. The United States does not have extradition treaties with several Middle Eastern countries.

Four other defendants in the case living overseas have not faced extradition, including Bashir Nafi, a London academic who the indictment accuses of running the British branch of the Palestinian Islamic Jihad.

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