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Date: Tue, 4 Apr 2006 09:12:15 -0500
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From: "R. A. Hettinga"
Subject: [Clips] How Patriot Act Helped Convict Man In Baby-Food Ring
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http://online.wsj.com/article_print/SB114411067761115987.html
The Wall Street Journal
April 4, 2006
PAGE ONE
Volatile Formula
How Patriot Act
Helped Convict Man
In Baby-Food Ring
Mr. Jammal Faces 10 Years
After Terror-Probe Tapes
Are Used in Criminal Trial
A 14-Minute Rant Against U.S.
By JOHN D. MCKINNON
April 4, 2006; Page A1
Three months before the Sept. 11, 2001, attacks, police in Tempe, Ariz.,
began investigating information from Wal-Mart Stores Inc. suggesting that a
local grocery wholesaler named Samih Jammal was part of an organized ring
stealing baby formula from Wal-Mart stores and trucks.
The investigation proceeded uneventfully until shortly after 9/11 when it
was turned over to a joint local and federal terrorism task force. Phoenix
police, in a written report later provided to Mr. Jammal as part of his
prosecution, said they had "confirmed" that he "had significant connections
to terrorist organizations, including al Qaeda." At some point after that
-- prosecutors won't say precisely when -- authorities got a warrant to tap
Mr. Jammal's phone and bug his office.
It wasn't an ordinary warrant, the sort routinely authorized by judges in
response to applications from police and prosecutors who want to eavesdrop
to catch crooks. It was a national-security warrant authorized by the 1978
Foreign Intelligence Surveillance Act, giving authorities much more leeway,
and giving wiretap targets fewer rights.
Mr. Jammal, a 36-year-old U.S. citizen born in Lebanon, was never charged
with any offense related to terrorism. Yet evidence collected in the FISA
eavesdropping played a role in his conviction last April on federal charges
focused on fencing stolen baby formula, for which he was sentenced to 10
years in prison.
His case sits on the fine line between the government's responsibility to
go all-out to prevent terrorism and its duty to protect the constitutional
rights of American citizens accused of crimes. It's a line that has blurred
considerably since 9/11 and the 2001 passage of the Patriot Act. It allows
authorities to use FISA wiretaps authorized by special courts not only to
gather foreign intelligence but to investigate domestic crimes.
Mr. Jammal is appealing, contending that FISA evidence used against him was
illegally obtained and crippled his defense. He says the charges against
him were trumped up by a government determined to show progress in the war
against terror. "It's baby formula of mass destruction here," he said at
one pretrial hearing.
With an ordinary warrant for electronic surveillance, authorities must show
probable cause that the target committed a crime and limit eavesdropping to
conversations about crimes. They must also eventually notify those who were
bugged (even if they aren't accused of a crime) and must give defendants
complete access to the warrant application, court orders and any actual
recordings.
To get a FISA warrant, in contrast, authorities need to persuade a federal
judge that there is probable cause that the target is an agent of a foreign
power such as a terrorist organization. For U.S. citizens, prosecutors also
must show that some crime might be involved. Armed with such a warrant,
authorities can eavesdrop on any conversation, regardless of whether it
involves a crime. They can withhold from defendants the basis for issuing
the warrant, hindering legal challenges to the FISA evidence. And they can
restrict defendants' access to the classified transcripts and tapes, which
makes it harder for the defense to parry the government's charges or mount
its own case.
The FISA warrant in the Jammal case distinguishes it from the controversial
warrantless wiretaps that President Bush authorized the National Security
Agency to conduct in pursuit of terrorism.
Constitutional Question
Even with warrants, critics fear defendants' rights to a fair trial will be
eroded, as authorities use intelligence-gathering techniques to pursue
criminal cases. "If evidence is procured by methods that wouldn't stand up
to the Fourth Amendment, the courts are going to have to stop it," said
Rep. Jerrold Nadler of New York, top Democrat on the House Judiciary
subcommittee on the Constitution. Cases like Mr. Jammal's "should be
challenged in court," he said. "That kind of thing shouldn't happen."
Andrew McCarthy, who prosecuted Sheik Omar Abdel Rahman on terror charges
in New York, says the old dividing wall between foreign intelligence
operations and domestic criminal investigations doesn't make sense in the
fight against terrorism. "They usually commit an array of garden-variety
crime in the course of trying to conduct terrorism operations," says Mr.
McCarthy, now a senior fellow at the Foundation for the Defense of
Democracies, a Washington-based group that studies national security
issues. That means investigating crimes and gathering intelligence through
plea bargains and other techniques can be an important tool.
Paul Charlton, the U.S. attorney for Arizona whose office brought the case
against Mr. Jammal, says in an interview that existing procedures properly
balance the rights of defendants with the government's need to maintain
secrecy to protect national security. He notes that, as in all FISA cases,
a federal judge approved the initial application for the Jammal warrant
privately. Prosecutors were "scrupulous" about avoiding suggestions at
trial that Mr. Jammal was linked to terrorism, he adds, trying to ensure he
got a fair trial.
Prior to passage of the Patriot Act, court interpretations required that
the "primary" purpose of a FISA warrant had to be gathering foreign
intelligence. The Patriot Act, passed in October 2001, broadened the rules
so that intelligence gathering need only be a "significant" purpose of
wiretapping. Evidence obtained under FISA warrants has been used in a
handful of cases involving charges not directly related to terrorism,
including at least one immigration proceeding.
Mr. Jammal's case shows how much the legal environment changes when FISA
wiretaps enter the picture in criminal cases. His first two court-appointed
lawyers stepped down in part because the secret tapes required them to get
security clearance. Even with such clearance, however, they wouldn't be
able to discuss the tapes with their client. His third lawyer, who did get
clearance, was able to review only translated summaries, not transcripts,
of selected wiretapped conversations. At trial, the government played the
jury a recording made under the FISA warrant that proved damaging to Mr.
Jammal: a rambling 14-minute diatribe in which he rails against the U.S.
government in Arabic, and talks about fleeing to Lebanon if officials came
after him for unpaid taxes.
The case against Mr. Jammal began in June 2001 when Wal-Mart investigators,
frustrated by a rash of baby-formula thefts, gave Tempe police detective
Tom O'Brien information about a recent attempted theft in Midland, Texas.
For reasons that aren't clear, that led to a police stakeout outside Mr.
Jammal's business, located in a warehouse complex in the Phoenix suburb of
Tempe. Checks of license plates revealed people with shoplifting records
showing up to do business with Mr. Jammal.
Sent to U.S. for College
Mr. Jammal grew up in Lebanon and Kuwait. His father owned fruit and
vegetable export firms, a farm, a small phone company and a school,
according to Mr. Jammal. The family was prosperous enough to send Mr.
Jammal to the U.S. in 1988 to study at West Virginia's Marshall University,
named after the nation's first chief justice, John Marshall. Wiry and
athletic, Mr. Jammal played for a while on the school's soccer team. The
family businesses suffered in the early 1990s, and Mr. Jammal began working
odd jobs to put himself through school, according to Mr. Jammal's wife,
Gretchen, who grew up in Ohio and whom he met while attending Marshall.
After college, Mr. Jammal gravitated toward the business of selling
baby-formula on the advice of a friend, and moved to Arizona starting in
1994 to live near a cousin and savor the warmer weather.
Mr. Jammal joined a number of other entrepreneurs -- some of Middle Eastern
origin -- who were buying up large quantities of formula at big chain
stores, which often sold it as a loss leader. The brokers then sold to
wholesalers who, in turn, resold to smaller retailers, who often served
low-income families participating in federal food-aid programs. None of
this is illegal, although some manufacturers raised concerns about the
practice. Taking baby formula out of the original packages and repackaging
for resale can be a crime, however. In 1998, Mr. Jammal pleaded guilty to a
single charge of improper repackaging of baby formula. He got three years'
probation and a $1,000 fine.
Big retailers and formula manufacturers sought to choke off the gray market
in baby formula -- for instance, by limiting the amount of formula that
could be purchased off-the-shelf at one time. Still, Mr. Jammal's business,
Jamal Trading Co., thrived. He says he took advantage of loss leaders at
big-box stores and also distributed cereals, juices, diapers and other
grocery items. He opened several small retail stores in Arizona. In May
2003, unaware that he had been secretly indicted, he moved his family into
a $550,000 suburban home in Mesa, Ariz., where he kept a dozen sheep and
goats.
Meanwhile, federal authorities say they got interested in Mr. Jammal in
October 2001 when they happened to overhear him on a Drug Enforcement
Agency wiretap of Osamah Yacoub, an immigrant from Jerusalem who was living
in Houston. The two were talking about the baby-formula business, Mr.
Charlton, the U.S. attorney said. Mr. Yacoub later pleaded guilty to a
charge related to methamphetamine trafficking and cooperated with the
government in its prosecution of Mr. Jammal.
Around the same time, according to a Phoenix police affidavit, a
confidential informant told authorities that Mr. Jammal was trying to
"facilitate the release of a non-U.S. citizen who was in federal custody"
-- Malek Seif -- and smuggle him to Mexico. Mr. Seif later pleaded guilty
to falsifying immigration and Social Security records. Through one of his
appeal lawyers, Mr. Jammal said the story is not true. "Someone made it
up," said the lawyer, Scott MacPherson.
A 9/11 Hijacker at Mosque
Federal authorities won't say exactly what led to Mr. Jammal's case being
turned over to the terrorism task force. Mr. Jammal suspects one factor was
that he and Mr. Seif attended a Tempe mosque where one of the 9/11
hijackers worshipped briefly -- Hani Hanjour, a Saudi Arabian who was
aboard the American Airlines jet that crashed into the Pentagon. Mr.
Jammal, who says he has no sympathies with terrorism, says he expressed
skepticism about Mr. Hanjour's culpability when Federal Bureau of
Investigation agents came to the mosque shortly after 9/11.
Beginning in December 2001, authorities devised a sting aimed at Mr. Jammal
and his associates. Mead Johnson, a unit of Bristol-Myers Squibb Co. and
maker of the Enfamil brand, gave police posing as middlemen baby formula to
sell to Jamal Trading Co., representing it as stolen. Mr. Jammal didn't buy
formula directly in the sting, and typically insisted that associates get
signed statements attesting that any formula they bought wasn't stolen.
But police did sell 1,400 cases from the back of a Wal-Mart truck to Mr.
Jammal's partner in several businesses, an Egyptian-born businessman named
Tamer Swailem, in May 2002. Testifying against Mr. Jammal, Mr. Swailem said
he expressed misgivings to Mr. Jammal about buying the formula in a
cellphone conversation. "It didn't feel right....[but] finally we decided
just to go ahead and have him [the agent] sign the paper," Mr. Swailem
said. Mr. Jammal, who didn't testify at this trial, says in an interview
that he told Mr. Swailem to "get the hell out" if he believed the formula
in the truck was stolen.
In March 2003, Mr. Jammal was indicted secretly. Although the government
refuses to say when it tapped Mr. Jammal's phones and bugged his office
under the FISA warrant, summaries of about 20 conversations introduced in
criminal proceedings against Mr. Jammal date from May and June 2003.
Clifford Fishman, a Catholic University law professor who has studied
wiretap laws, says using FISA-authorized wiretaps to bolster an already
pending criminal case "would be a clear misuse of the law." A spokeswoman
for Mr. Charlton, the prosecutor, said that the "basis for the FISA
intercept was unrelated to [Mr. Jammal's] involvement in organized retail
theft," adding that it was conducted by a separate investigative team. She
said officials can't reveal reasons for seeking the FISA warrant.
Mr. Jammal was arrested in July 2003, and charged with eight felony counts
including interstate transportation of stolen property. The government now
says that of the 27 defendants in the case, 22 were arrested; 18 pleaded
guilty and four of them so far have been deported, while others are pending
deportation; and four others including Mr. Jammal were convicted at trial.
Federal prosecutors used declassified conversations recorded under the FISA
warrants to argue successfully that he should be jailed awaiting trial.
They said his expressed interest in running for the Lebanese parliament
proved that he had no strong ties to the U.S.
As Mr. Jammal's trial approached, the FISA-authorized wiretaps also posed
difficulties for his court-appointed lawyer, Michael Reeves. The government
insisted that Mr. Reeves obtain security clearance to examine classified
evidence in the case and agree not to talk about the evidence with anyone,
even his client. Mr. Reeves's doubts deepened when he got a look at the
security-clearance application. Under penalty of perjury, it asked detailed
information "like 'Have you ever missed a mortgage payment?' " Mr. Reeves
recalls. "It made me nervous."
Ashcroft Weighed In
While Mr. Reeves pondered the matter, he asked the court to order the
government either to reveal the basis for issuing the FISA warrant so he
could challenge its legality or bar the evidence altogether. The government
countered with an affidavit from then-Attorney General John Ashcroft who
said telling defense lawyers why the FISA warrant was issued "would harm
the national security." The federal trial judge, Frederick J. Martone,
sided with the government.
Judge Martone allowed Mr. Reeves to withdraw and appointed Michael Smith of
Mesa to take his place. But he, too, eventually pulled out, arguing that
serving as an effective advocate for Mr. Jammal meant sharing the FISA
evidence with his client -- something that would expose Mr. Smith to
prosecution.
In October 2004, Judge Martone named Robert Kavanagh, a former Phoenix
police officer, to represent Mr. Jammal. Mr. Jammal says Mr. Kavanagh
inherited from the previous lawyers only a few CD's -- apparently a small
portion of the surveillance videos that were made outside his client's
warehouse -- plus a largely inaudible tape recording of one of the FISA
conversations. With time running out and no more delays possible before the
trial, Mr. Kavanagh, who had obtained a security clearance, reviewed
classified summaries of some wiretapped conversations, prepared by FBI
translators and agents. But he says he was unable to review many
conversations.
The government was free to offer any declassified FISA-obtained evidence in
its case against Mr. Jammal, and the defense also could use that material.
Federal rules require prosecutors to turn over any evidence that might help
the defense. Government lawyers didn't go through all the tapes, many of
which recorded conversations in Arabic, but "reviewed all translated
summaries of the FISA intercepts and found no exculpatory evidence," the
U.S. attorney says.
At one point during the trial, Judge Martone questioned how the government
could fulfill its obligation to turn over material favorable to the
defense. "There isn't any lawyer who's making this judgment," the judge
complained during one conference with lawyers, a transcript shows. But he
allowed the government to use FISA-gathered evidence anyhow.
Seeking Help From Tapes
Mr. Jammal insists a review of the voluminous, classified FISA evidence
would show that he warned would-be sellers that he would not accept stolen
property. He also says that the tapes could have helped undercut the
testimony of former associates who agreed to plea bargains and testified
against him. Mr. Charlton, the U.S. attorney, counters that seven witnesses
testified to Mr. Jammal's guilt. The government introduced evidence, for
example, that Mr. Jammal was told by an associate that at least one
supplier was stealing. Prosecutors also argued that Mr. Jammal should have
known from the prices he was paying that he was buying stolen goods.
Over defense objections, the prosecution played for the jury a conversation
recorded under the FISA warrant -- Mr. Jammal's 14-minute rant from June
26, 2003, about his sense that the government was after him, even though he
didn't know he'd already been indicted.
"I'm trying to establish a business in Lebanon, because I know 80% to 90%
that the day will come when the American government is going to come and
ask me for taxes," he said, according to a translation presented in court.
"OK, that's why, when that day comes, I'll tell them, 'F- you!' Then take
everything, I'll pick up everything and go to Lebanon."
Jurors took six hours to convict Mr. Jammal and other defendants on most of
the charges. A few days before his sentencing hearing in October, Mr.
Jammal fired off a 43-page letter to civil-rights groups, hoping to
generate interest in his appeal, and copied Judge Martone. "I fail to see
how my conversation concerning the baby formula business could qualify as
'foreign intelligence,' " he wrote.
--
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R. A. Hettinga
The Internet Bearer Underwriting Corporation http://www.ibuc.com/
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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--
-----------------
R. A. Hettinga
The Internet Bearer Underwriting Corporation http://www.ibuc.com/
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'