Withholding FBI reports, misrepresenting evidence and intimidating a witness. These are some of the tactics that the government has been accused of using in the terror trial under way in U.S. District Court in Detroit.
Defense attorneys, who have presented five days of testimony, asked U.S. District Court Judge Gerald E. Rosen to declare a mistrial last week. They claim the government withheld evidence that could have impeached the government’s star witness, Youssef Hmimssa, an illegal immigrant and self-proclaimed “scam artist” who entered the United States illegally in 1994 and has many aliases.
The government’s case hinges on Hmimssa, who testified that the defendants spoke of Stinger missiles and jihad, and tried to recruit him. The defense contends that Hmimssa, who avoided terrorism charges by cooperating with the government, would say anything to save himself. He pleaded guilty to several charges of credit card fraud and document fraud in three states.
If convicted of providing substantial aid to terrorists, the defendants — Karim Koubriti, 24; Ahmed Hannan, 34; Farouk Ali-Haimoud, 22; and Abdel-Ilah Elmardoudi, 36 — each face up to 25 years in prison. The four are also charged with possessing false identification documents.
Expert witnesses for the defense testified that the audio tapes confiscated during a September 17, 2001, raid on the defendants’ Detroit apartment do not advocate violence as the government contends. They say the tapes condemn violence.
A psychiatrist called by the defense raised doubts about the government’s allegations that the defendants drew military sketches in a day planner notebook. The defense contends that the sketches were the work of a mentally ill Yemeni man. The doctor testified that he treated the Yemeni immigrant, who thought he was a “general.”
An attorney representing a key witness accused the government of intimidation. Attorney Corbett Edge O’Meara represents Omar Shishani, a convicted felon who testified in an unrelated case that the government’s star witness, Hmimssa, is a “liar.” O’Meara says the government withdrew Shishani’s plea agreement because of his testimony in the case. The government denies this allegation.
A gag order prevents defense attorneys and prosecutors from talking about the case. The defense expects to conclude this week.
Defense attorneys say the government withheld FBI reports that may have enabled them to undermine Hmimssa’s credibility, according to court records.
Defense lawyers accused the prosecutors of failing to turn over three reports of conversations with Brahim Sidi, an associate of Hmimssa’s. The reports are dated Jan. 3, 11 and 25, 2002. The defense said that it did not receive the reports until May 5, according to court records.
Defense attorneys claim in court papers that the reports, which are sealed from public view, clear their clients and show that Hmimssa is not a credible witness.
Defense attorneys say the government’s withholding of the key reports prevented them from adequately cross-examining Hmimssa. They also accuse the government of intentionally deporting Sidi to Morocco in December, “thereby depriving the defendants of his testimony at trial.”
Sidi was arrested in Iowa with Hmimssa. He pleaded guilty to document fraud and served about seven months in jail before his deportation.
Lawyers for the defendants have asked the judge to declare mistrials three times and have complained repeatedly that the prosecution is employing unfair tactics.
Judge Rosen refused to declare a mistrial and said that there were ways to address the defense’s complaints. He suggested that the defense could track down Sidi in Morocco, that both parties could agree to admit the FBI reports or they could bring back Hmimssa for more cross-examination. But the defense has been unable to track down Sidi. On Monday, Rosen recommended that the FBI reports be admitted into evidence if defense attorneys did not locate him.
Did the government misrepresent the contents of the audio tapes confiscated from the defendants’ Detroit apartment?
According to the government’s expert witness, the tapes contain lectures by an Islamic extremist who promotes violence against Christians, Jews and nonpracticing Muslims. Dr. Walid Phares, who teaches Middle Eastern studies at Florida Atlantic University, testified as an expert for the prosecution that the tapes were intended to inspire violent missions. Phares said that he listened to five of the 105 90-minute cassettes.
The government presented about a dozen passages to the jury that were translated from Arabic to English.
Phares said that the lecturer on the tapes, Osama Al-Kousi, is a Salafist. He portrayed the Salafis as a violent Islamic group. Phares said that he learned about Salafism from books, the Internet and USA Today.
Experts for the defense painted a different picture of Salafism, Al-Kousi and his lectures. Bernard Haykel is a New York University assistant professor who teaches Middle East studies. He also is an expert on Salafism and is writing a book on the subject. Haykel described Salafism as a mainstream Islamic group that does not condone violence and condemns groups that advocate it.
Haykel described Al-Kousi as a minor figure in the Salafist movement.
Haykel said that he listened to 10 of the audio tapes and all of those from which the prosecution extracted passages that were presented to the jury. He explained that a passage, which said Jews and Christians should be killed, is from the Quran.
“Al-Kousi would not go along with this today,” said Haykel.
Dr. Wael Hallaq, a professor of Islamic law at McGill University in Montreal, called Al-Kousi “the ultimate pacifist.”
He also said that he believed that the government distorted the tapes by taking passages out of context. Halleq listened to portions of about 50 tapes, he testified.
Halleq and Haykel remained unshaken in their opinions when assistant U.S. attorney Richard Convertino cross-examined them. Convertino pointed out that Halleq and Haykel were paid an hourly rate of $300 and $200 for their testimony, respectively. Phares was paid $50 an hour to testify.
Dr. Said Abu Hassam, a psychiatrist, testified that he treated Ali Mohammed Ahmed at Oakwood Hospital on Oct. 25, 2000. Ahmed was a mentally ill Yemeni immigrant who lived in Dearborn with his brother. Ahmed, who jumped to his death from an I-94 overpass in 2001, possessed a day planner which the government says contains sketches of a military hospital in Jordan and a U.S. air base in Turkey.
The day planner was confiscated during a raid on the defendants’ Detroit apartment. The defendants said that they found it in a Dearborn apartment where they used to live, the same apartment that Ali and his brother once occupied.
The government contends that the defendants drew the sketches and intended to attack the military targets. They also say that the defendants had Ahmed sign his name to the day planner so it appeared that he drew the sketches.
The defense claims that Ahmed, who had delusions of being a military officer, drew the sketches.
Defense attorney Jim Thomas raised this possibility when questioning the psychiatrist, who admitted Ahmed to Oakwood more than two years ago. Hassan could not recall much about Ahmed’s physical appearance, but said that he had delusions of being a general.
“He demanded respect because he was a general in the army,” said Hassan. The doctor said that he asked Ahmed if he was suicidal. “As a general, I cannot kill myself,” he said.
What did Omar Shishani stand to gain by testifying for the defense? A clear conscience, says the 48-year-old convicted felon. What does he stand to lose? Years of freedom, says his attorney, O’Meara.
Shishani testified that he met the government’s star witness, Hmimssa, at a federal prison where they were housed in adjacent cells. The two spoke in Arabic through a food slot. Shishani said that Hmimssa told him last February that he was going to testify in a terrorism trial. According to Shishani, Hmimssa said that he didn’t know if the defendants were terrorists, but wanted “revenge because they stole from me [Hmimssa].” He also said that Hmimssa advised him to “save” himself in his own criminal case by giving the government names, telling them “stories,” and “then you can get yourself off the hook.”
Shishani, who was born in Jordan and became a U.S. citizen in 1989, was arrested at Detroit Metropolitan Airport when returning from Indonesia with his twin 8-year-old daughters. He was carrying nine bogus cashier’s checks totaling $12 million.
Shishani also was carrying Islamic verses that the government thought referred to the Sept. 11 attacks. He was held without bond for 278 days because he was a terrorist suspect and considered a danger to the community, according to court records. He pleaded guilty to possessing the false documents last month and was released on bond; he was never formally charged with terrorism.
Defense attorney Richard Helfrick asked Shishani why he came forward with information about his conversations with Hmimssa.
“My conscience didn’t allow me to hide what I hear,” said Shishani.
Shishani said he briefly met the defendants while all were in detention at the federal courthouse. Shishani said that he spoke to defendant Ahmed Hannan, who stood up.
Shishani said that Hannan asked if he had met Hmimssa. He said that he had told Hannan that he had met Hmimissa and that Hmimssa was a “liar.”
“Please help us,” Hannan asked Shishani, according to Shishani’s testimony.
“I said, ‘God will help you.’ That’s all I said,” testified Shishani.
During a heated cross-examination, assistant U.S. attorney Keith Corbett made Shishani look like a self-aggrandizing liar.
“Your conscience wouldn’t let you keep silent, right? Because your conscience doesn’t let you lie?” asked Corbett.
“I’m no angel, sir,” said Shishani. “Nobody’s angel.”
“Do you lie?” asked Corbett.
“Depends on what lie you talk about,” answered Shishani.
Corbett asked Shishani if he had ever told fellow inmates that he is “acquainted with the family of Osama bin Laden,” “wanted to get a plane and take out the Blue Cross Building and Wayne County Courthouse,” and that he was going to “get revenge against the people that had put you in jail.”
Shishani said that the statements were “preposterous.”
But Shishani maintained that, at one time, he worked with the CIA. He also said that a friend intended to introduce him to Tom Ridge, U.S. secretary of Homeland Security, so that he could provide information to help fight terrorism. But he was arrested and never met Ridge.
“That kind of put the kibosh on it, didn’t it?” said Corbett, eliciting snickers from jurors.
After Shishani testified, he said that he did not regret coming forward. “I feel my conscience is clear,” he said.
But his attorney said that Shishani’s testimony resulted in the government withdrawing its plea agreement with him. O’Meara said that U.S. attorney Eric Straus, who handled Shishani’s prosecution, originally promised that Shishani would receive a reduced sentence for the false document charge since he is cooperating in finding and prosecuting other criminals. Straus also said that Shishani would not be penalized for providing information on Hmimssa, according to O’Meara. But O’Meara said that Straus later told him that Shishani’s plea agreement is contingent on his submission to a polygraph regarding Hmimssa.
“This is totally inaccurate. Beyond that I cannot comment,” said Straus, citing the gag order, which does not apply to Shishani’s case.
Corbett originally asked that Shishani submit to a polygraph, O’Meara said, but O’Meara refused. O’Meara alleges that the polygraph, the results of which are inadmissible in court, was requested to intimidate Shishani and discourage him from testifying about Hmimssa.
Corbett said that Shishani’s plea agreement requires him to submit to a polygraph regarding his case. Corbett would not say if Hmimssa was required to take a polygraph.
Judge Rosen told the jury that the defense and prosecution agreed that Shishani’s plea agreement was not withdrawn because he testified for the defendants. But the judge left out a key word when he instructed the jury. According to the transcript of the private conversation the judge had with defense attorneys and prosecutors, they agreed that Shishani’s plea agreement was not withdrawn “solely” because he testified at the terror trial.
It is hard to know what the jury made of judge’s statement or of Shishani. They appeared unmoved by his testimony and some rolled their eyes and giggled when he said that he worked with the CIA and was to meet Ridge.
O’Meara said that before the plea agreement was withdrawn, the sentencing guidelines called for Shishani to serve 78 to 97 months in prison, but that his cooperation with the government would have allowed a departure from the guidelines. He said Shishani may have gotten about three years, but could now get 10 years because his testimony had undermined the government’s case against the four accused terrorists.
He is seeking a hearing before U.S. District Court Judge Nancy G. Edmunds, who is presiding over Shishani’s case.
“I hope to God the judge forces the government to make good on its promise,” said O’Meara.Ann Mullen is a Metro Times staff writer. She can be reached at 313-202-8015 or [email protected]