St. Petersburg Times
January 23, 2004
Speed up the evidence exchange, he urges the lawyers, noting that trial is just a year away.
By Graham Brink

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TAMPA – U.S. Magistrate Judge Thomas McCoun expressed concern Thursday about the pace of the required exchange of evidence in the terrorism case involving Sami Al-Arian and three other men.

The government’s decade-long investigation produced thousands of taped conversations, piles of investigative documents and reams of records.

Lots of the evidence is in Arabic. Parts are in Hebrew. And some documents currently reside with Israeli officials, who haven’t been quick to share.

McCoun encouraged the lawyers to pick up the pace, especially now that the trial is just a year away.

To help expedite matters, McCoun ordered government prosecutors to turn over to the defendants English transcripts of the 200 or so hours of taped conversations relevant to the indictment. They also must make available the analyses by the intelligence agents who monitored the wiretaps.

And, within 30 days, they must make available all investigative material related to acts of violence in Israel alleged in the indictment, or show why it cannot be disclosed.

“My view of the (Israeli) evidence is, it may not be a large part of your case, but it’s certainly a significant part of the case, given the impact that it could have,” McCoun told the prosecutor.

Assistant U.S. Attorney Terry Zitek said that, in part, the Israeli evidence was made up of documents from investigations into suicide bombings, including witness testimony, accomplice statements and forensic reports.

Al-Arian and the other men are accused of supporting, promoting and raising funds for the Palestinian Islamic Jihad, a group designated as a terrorist organization by the U.S. government. Much of the evidence in the indictment came from wiretaps on the defendants’ phone and fax lines, starting in late 1993.

The indictment also briefly outlines a number of deadly PIJ attacks in Israel. The defendants are not charged with carrying out the attacks, just supporting the PIJ.

Zitek told the judge his office has not had success in persuading the Israelis to turn over a copy of investigative materials produced after those attacks. He said he thought McCoun’s official order might help pry the documents loose.

The defense attorneys questioned whether the documents will be in Hebrew, a language none of them read. Zitek told the judge his office does not have any English translations of the documents.

McCoun told the defense attorneys they will have to provide their own translations for the 21,000 hours of Arabic conversations the prosecutors said were not relevant to the indictment. The law does not require the government to translate the entirety of the tapes, he said.

As he has in past hearings, Zitek said the vast majority of the taped conversations are “junk” and no transcripts were made. But the defense attorneys have argued that they shouldn’t have to rely on the prosecutors’ judgment of what’s relevant.

“The idea that the government tells me something is not relevant generally means we want to look at it,” said William Moffitt, one of Al-Arian’s attorneys.

Federal Public Defender Fletcher Peacock, whose office represents Hatem Fariz, said his recent request for up to $2-million to hire translators was turned down for budgetary reasons.

Peacock said his office had spent a year preparing the request for the U.S. Courts administration committee to help pay for translating the tapes. He added that none of his assistant public defenders speak Arabic.

McCoun worried that the financial constraints could lead to future appeals.

“Ultimately, it’s Congress’ problem,” McCoun said of the budget crisis that has complicated the case.

“If we are going to have these major prosecutions, the government has to step up and pay for it,” he said. “If this is going to have to be the case they learn that lesson, then this is going to have to be the case they learn that lesson on.”

Al-Arian and fellow defendant Sameeh Hammoudeh have been listening to some of the tapes at the Coleman Correctional Facility, where they are being held without bail. But their attorneys complained again on Thursday that the tape system isn’t working.

Al-Arian attorney Linda Moreno said the machines that play some of the tapes broke and haven’t been replaced. Al-Arian, she said, often goes weeks without being able to listen to more than a few recordings, she said.

“It has been an unmitigated disaster,” Moreno said.

McCoun told the prison’s lawyer that backup machines and extra batteries or portable laptops must be made available to Al-Arian and Hammoudeh.

“I don’t want months, I don’t want weeks, I don’t even want days to go by” without the defendants’ being able to listen to the recordings,” McCoun said. “I’m tired of fooling around with this.”

– Information from the Associated Press was used in this report.