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Email trail from navy man to London 'terror' site goes fuzzy

Shifty attitude becoming prosecution's main plank

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In pre-trial maneuvering this month the US government's case against ex-Navy signalman Hassan Abu-jihaad became more moth-eaten. Prosecutors filed an interesting brief indicating they had no evidence against the defendant of a terror plot modus operandi.

Abu-jihaad has been charged with e-mailing information on the transit of his naval battle group through the Straits of Hormuz to Babar Ahmad and Azzam Publications in London in 2001. At the time he was serving on the destroyer Benfold. For the purpose of the case, Babar Ahmad - now awaiting a court decision in February on whether or not he is to be extradited to the States - is considered by the US government to be a terrorist. The government alleges Abu-jihaad's communications with Ahmad and the purchase of Chechen resistance videotapes from the Azzam website to be aiding terror, with the defendant an agent of a foreign power.

A glaring problem with the government's case against Abu-jihaad is that the evidence against him is thin. Although the US has submitted e-mails to Azzam which they have claimed are from Abu-jihaad, prosecutors admitted in pre-trial filings this month that "the Government had no recorded statements or testimony personally linking Abu-jihaad to the e-mail account from which [the communications to Azzam in question] were sent."

Also discussed in December, prosecutors submitted excerpts from surveillance tapes made of conversations between Abu-jihaad, a dodgy FBI informant named William Chrisman, and an acquaintance of the defendant, Derrick Shareef who pled guilty in late 2007 to conspiracy to attack a shopping mall with hand grenades offered to him in a sting engineered by the bureau. The prosecutors now argue that subject matter in Abu-jihaad's taped conversation with an FBI informant constitutes proof that e-mails to Azzam were, in fact, made by him.

"At one point, for example, the defendant admits that he corresponded with the Azzam website, and even that he sent the e-mail discussing the bombing of the USS Cole," write prosecutors. "These admissions directly prove some of the allegations in [the government's] indictment." (prosecution argument)

It should be carefully noted that Abu-jihaad had nothing to do with the bombing of the Cole, a fact that has been obscured in some mainstream reporting on the case. In fact, this particular e-mail has been discussed previously here and it shows only a conversation in which the author privately insults his superiors over what the author believes to be their lack of courage after the Cole bombing, the likes of which one would imagine cannot be altogether unheard of in the US Navy.

The US government also now argues that Abu-jihaad's knowledge of the Maktabah-al-Ansar bookshop in Sparkhill, Birmingham, provides more evidence that he must have been doing business with Azzam. This is because, prosecutors argue, "materials from [Maktabah-al-Ansar] were openly marketed on the Azzam websites."

It again must be noted that the Maktabah-al-Ansar bookshop has not been convicted of anything. Additionally, on the off chance that Babar Ahmad's legal appeal to avoid extradition succeeds - he is represented by Birnberg Peirce in the matter - the Abu-jihaad prosecution will be left to deal with a reality in which it becomes difficult to honestly paint Azzam as a terror front.

The net result of such arguments further underscores weaknesses in the US government's case against Abu-jihaad. Prosecutors appear to have given up trying to argue that Abu-jihaad was directly engaged in real terror plots, instead falling back onto a strategy that seeks only to prove that his taped conversations sounded shifty and unpleasant. "[A] number of the defendant's statements - such as his carefully coded references to violent jihad, and his obsession with security - can be reasonably viewed to demonstrate his consciousness of guilt."

In December the government leaked anonymous say-so to the press that it had further undisclosed evidence on the defendant. Resulting stories attempted to sell the idea that Abu-jihaad was enmeshed in and providing intelligence for potential attacks against the military.

However, the threadbare nature of the arguments have become so apparent that even some in the US mainstream media have been compelled to change their tune, if only a bit. Recently the Associated Press tabbed an expert within the weedy thicket of university war-on-terror teaching centers to state the obvious. "I think the government has taken a risk with borderline cases and tried to make them into something they're not," said Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland to the news agency.

In reply to prosecution assertions that Abu-jihaad's conversational tone, style and obsession with secrecy prove his guilt, his defense argued that this was irrelevant, asking it to be ruled as inadmissible in the coming trial.

"The government's theory seems to be that in 2001 the defendant provided what it deemed to be logistical information to the Azzam website," writes attorney Robert S. Golger.

"Five years later, the defendant is intercepted by a wiretap speaking with Derrick Shareef," he continues. "At the time Derrick Shareef is interested in gaining logistical support for his own Jihaadist aspirations. The defendant (who has been out of the military for several years) essentially tells him that he cannot help him because he has not been in an environment where he could come across such information. The defendant is also aware at this time that he is suspected of transmitting sensitive intelligence information which is alleged to have emanated from the Benfold. The government claims that both of these incidences show consciousness of guilt... Nothing about these conversations is probative of the defendant's guilt of the offenses charged in the indictment, rather they constitute nothing more than an invitation to the jury to speculate on the issue of guilt. The statements were made five years after the fact and relate to an entirely different matter." (defense argument)

The stakes are high. In previous reviews of the government's surveillance of Abu-jihaad it was revealed the FBI had spent some effort to entice the defendant into implicating himself in an active plot, at one point having its informant offer automatic weapons in exchange for money. Abu-jihaad apparently did not bite, possibly because he is no terrorist. Five years had elapsed between his rash e-mails from the Benfold and his arrest for allegedly sending them. It seems obvious that prosecutors now hope to be able to inflame a jury with selected segments of nasty-toned talk on other matters culled from the spying transcripts. ®

George Smith is a senior fellow at GlobalSecurity.org, a defense affairs think tank and public information group. At Dick Destiny, he blogs his way through chemical, biological, and nuclear terror hysteria, often by way of the contents of neighbourhood hardware stores.

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