September 30, 2002
Nailing the Lackawanna Six:
Political innuendo and poison in the jury pool
by Bruce Jackson
What, if anything, did they do?
I still don't know if the Lackawanna Six are guilty of anything other than religious fervor, which is not a crime in the United States and never has been.
The Justice Department may have a good deal more on them than has been thus far released, but nothing they've said in court indicates they're sitting on any great trove of information. There have been a lot of accusations and a good deal more innuendo, but precious little substance.
They tailed a couple of these guys for well over a year and seem to have come up with nothing more than some radical pamphlets and tape cassettes, which, like religious fervor, are not illegal in the United States, and never have been. Some of them may have had credit cards with their names spelled differently in their wallets or credit cards with the names of sibs or spouses. So what?
(In the interest of journalistic openness, I have to confess to you that there are a lot of variously named pieces of paper and plastic around my house too. My wife, Diane Christian, and I have in our respective wallets credit cards with each of our names on them, and we regularly get mail and credit card offers in the names of Diane Jackson and Bruce Christian. I bet every couple in which the husband and wife have different last names has that sort of stuff around the house. For years the phone company has misspelled my name in the phone book; they keep promising to change it but they don't. Foreign students tell me all the time of records getting screwed up because clerks misspell their names. They show me pieces of paper with the most creative variations on the correct spelling. They're not terrorists either.)
The Joint Terrorism Task Force found a Panther stun gun in the house of one defendant. Panther stun guns are legal. The Task Force found a .22 caliber Derringer in the bureau of another one of the six. That may be an illegal weapon but it's hardly the hardware that significant terrorist acts are predicated upon. Derringers are almost impossible to aim and they hold only two rounds.
One or two of them reportedly said to the FBI he or they knowingly went to the Al Qaida camp in May 2001. That confession, if confession it was, hasn't been released yet and nobody has said anything about how it was delivered. Did the person in question simply offer it up? Did he come up with it after hours or days of interrogation? If the former, then we should be thanking him for providing information otherwise unavailable; if the latter we should perhaps reflect on the recent disclosure that the vile and vicious Central Park rapists, five men who turn out not to have been guilty after all, that the vicious crime was instead perpetrated by one man, acting alone, who confessed to the foul deed nine months ago. (See Clarence Page's comments on that case.) If the DNA evidence is correct, and there is no reason to suspect it isn't, then the confessions New York city police extracted from 15-year-old Yousef Salaam and the others were just that—extracted confessions, and that the years they spent in New York penitentiaries were years that were stolen from them by New York cops and prosecutors.
Is it possible that the Lackawanna Six were indeed a bunch of nefarious plotters but they didn't get to do anything because they realized they were being tailed night and day? That, at least, is the explanation the US attorney gave for why the FBI came up with nothing after tailing them for so long. The way he put it, the fact that they didn't do anything bad was just one more bit of proof of how nefarious they were.
But so far, the case is far more accusation than actions, grounded far more in the very vague possibility that they were entertaining bad ideas than any likelihood that they had done anything criminal. That's the sort of thing that makes for better good press releases than criminal justice.
A lawyer friend tells me that the legislation the Lackawanna Six is charged under (The Anti Terrorist and Effective Death Penalty Act of 1966) was passed in the wake of the Oklahoma City bombing, back when Congress was convinced that the atrocity there had been perpetrated by foreign agents, probably from the Middle East. "The problem," he said, "is that the legislation has a fairly high standard of proof of intention, and nothing I've seen so far suggests they have that."
How long until election day?
That same friend is convinced, as am I, that President George Bush gave the arrest order solely because we're coming up on the election. "If the FBI was tailing and tapping them in the hope they'd lead them to something significant, this arrest sure put an end to that. They weren't about to do anything or run away. So why arrest them now?"
Why indeed. The fact that the White House issued a press release saying that George Bush himself gave the arrest order should give us pause. What is the president of the United States doing telling the FBI that today's the day for the pickup of a small group of guys the FBI had been tailing night and day, none of whom seemed to be about to do anything dangerous to anyone and none of whom seemed likely to leave Erie County?
I keep thinking of George Bush there in the White House just feeling like an idiot because of all those boasts that he was going to get Bin Laden that went nowhere. He's trying to start a war against Saddam, perhaps because he has a better idea how to find him than Bin Laden, but except for Tony Blair no other national leader has joined that parade and many have expressed serious reservations or downright opposition. There has been a huge amount of US arm-twisting abroad, but thus fair it's just Tony Blair. The High Sheriff needs something to show before the November elections, especially with the economy spiraling downwards, everyone's retirement stash reduced by more than 25% or more since he came into office. The only things going up are unemployment and anxiety. What's a guy to do? Give an arrest order to the FBI agents in Lackawanna, New York.
Poisoning the jury pool
It's not just the White House that's having a feeding frenzy on this case.
The Buffalo News, the region's only daily newspaper, has been treating the Lackawanna Six as if they're already convicted.
Dick Bradley, the cartoonist they've assigned to replace Pulitzer Prize winner Tom Toles, had a cartoon on September 20 showing a woman in Moslem dress standing by an open mailbox holding a letter. To her left are two kids. The boy holds a basketball or soccer ball and has the beak of his cap pointing over his ear. The balloon over the woman says, "It's from your father." A square balloon coming off the letter in her hand gives the text of the letter:The cartoon is captioned, "Letter from Camp Al-Farook (Afghanistan)."My dear wife and children,
How are things in Lackawanna? Today we had training on combat techniques andother neat skills that could come in handy some day. Osama bin Laden spoke to us (in person) about the alliance of jihad and how to bring down the U.S. (The Great Satan). I'm very excited.
I'll be home soon and we'll go to a Bills game. Well buy the wide-screen T.V. you always wanted and start looking for a new car. We have so many choices in America.
When I first saw it I said to Diane, "The News has convicted these guys."
"Of what?" she said.
"Of being terrorists and of being stupid."
She looked at the cartoon and said, "I don't think it's that bad. He's just trying to be funny and he's not very good at it. He's new."
Bradley had another cartoon on September 27, this one titled "While we're thinking about bridge design..." It referred to the Peace Bridge design process currently under way. It had four panels: upper left was "Proposed by: CITY OF BUFFALO," upper right was "Proposed by: JOHN RIGAS AND SONS," lower left was "Proposed by: JUDGE JOHN CURTIN" and lower right was "Proposed by: THE BUFFALO SIX."
At first I didn't know who "The Buffalo Six" was, but then I saw that the drawing had a sign saying "Lackawanna" at the bottom and "Afghanistan" on the top.
I showed Diane the cartoon.
"Doesn't he know they're from Lackawanna?" she said. I didn't say anything. "It's not funny," she said. After a while she said, "It's pretty stupid." Finally she said, "They are going after them, aren't they?"
Yes, I think they are. And not just on the editorial page. On page 1 of the same day's Buffalo News they ran a three-column wide above the fold article with two-line heavy-type headline that read, "U.S. asks if local men knew attack was coming."
Except for some specific things about John Walker Lindh, who has no demonstrated connection with these men or this case, the entire article is hypothetical and speculative, full of lines like "there's still the possibility that the Lackawanna men knew...federal agents wonder...If they did...it's entirely possible that..."
This isn't news; it's day-dreaming. But it is big, it is on page 1, and it is accompanied by a two-column photograph of Osama bin Laden, a Kalilshnakov rifle leaning against the wall behind him.
That page 1 story might not be so bad were it not for a story buried on page 5 of that same issue of the Buffalo News that flatly contradicts it.
This much smaller article is titled "Mueller says only highjackers knew of plot." The article quotes FBI Director Robert S. Muller III saying that the FBI has no evidence that anyone in the U.S., other than Zacharias Moussaoui, about whom he would not comment, had any advance knowledge of the September 11 plot.
What weighs more in the public mind and memory: three columns of speculation with a two-line bold headline and a photograph of Osama bin Laden or an article on page 5 flatly contradicting the page 1 speculation?
If the Buffalo Six are guilty of something and are convicted, then the Buffalo News will turn out to have been prescient in its coverage; if they are innocent and are convicted, then the Buffalo News will turn out to have been complicit.
The burden of proof
Here's the section of the Anti Terrorist and Effective Death Penalty Act of 1996 that seems to be at issue here:
Section 2339A of title 18, United States Code, is amended to read
as follows:
`Sec. 2339A. Providing material support to terrorists
`(a) OFFENSE- Whoever, within the United States, provides
material support or resources or conceals or disguises the nature,
location, source, or ownership of material support or resources,
knowing or intending that they are to be used in preparation for,
or in carrying out, a violation of section 32, 37, 81, 175, 351,
831, 842 (m) or (n), 844 (f) or (i), 956, 1114, 1116, 1203, 1361,
1362, 1363, 1366, 1751, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b,
or 2340A of this title or section 46502 of title 49, or in
preparation for, or in carrying out, the concealment from the
commission of any such violation, shall be fined under this title,
imprisoned not more than 10 years, or both.
`(b) DEFINITION- In this section, the term `material support or
resources' means currency or other financial securities, financial
services, lodging, training, safehouses, false documentation or
identification, communications equipment, facilities, weapons,
lethal substances, explosives, personnel, transportation, and other
physical assets, except medicine or religious materials.'.
Everything seems to hinge on their done something, anything, or provided something, anything, and knowing that what they did or provided was going to be used in or somehow part of a terrorist act. Thus far, the government has produced no public evidence of that.
The government has to convince a jury that all six were in fact in a training camp and, more important, that having been in a training camp is the same as providing training. And it must convince a jury that all six in fact heard a speech by bin Laden and that having heard a speech somehow constitutes material support
If they fail at that, this will have been a lot of sound and fury, signifying nothing.