Lawyers: Terror cases lack intent

New York Times
Jul. 9, 2006 12:00 AM


WASHINGTON - In Miami last month, and now in New York, terror cases have unfolded in which suspects have been apprehended before they lined up the intended weapons and the necessary financing or figured out other central details necessary to carry out their plots.

For officials in Washington, it is a demonstration of the much-needed emphasis in this post-Sept. 11 era for pre-emptive arrests.

"We don't wait until someone has lit the fuse to step in," Homeland Security Secretary Michael Chertoff said Friday at a news conference about the New York plot.

But the Miami and New York cases are inspiring a new round of skepticism from some lawyers who are openly questioning whether the government, in its zeal to stop terrorism, is forgetting an element central to any case: intent to commit a crime.

"Talk without any kind of an action means nothing," said Martin R. Stolar, a New York defense lawyer. "You start to criminalize people who are not really criminals."

In the two most recent suspected plots, the authorities have simultaneously warned that the suspects were contemplating horrific attacks - blowing up the Sears Tower in Chicago and setting off a bomb in a tunnel between New York and New Jersey - but then added that as far as they knew, no one was close to actually making such a strike.

In the Miami case, an FBI official said at a recent hearing that the suspects apparently did not have written information on how to make explosives, details on the layout of the Sears Tower or any known link to a terrorist group.

In New York, officials said Friday that none of the eight suspects believed to be planning the tunnel attack was in the United States, that they apparently did not have bomb materials and that they had not completed reconnaissance on their supposed target.

The arrest April 27 in Beirut, Lebanon, of Assem Hammoud, 31, a Lebanese man accused of being the mastermind of the tunnel plot, came after the authorities monitored Internet chat rooms used by Islamic extremists who had used coded language to discuss a possible attack. One U.S. official said the members of the group had never met one another.

In announcing the case, federal officials, including Chertoff, said the government could not waste time trying to determine whether the suspects were smart enough or serious enough to turn their threats into destructive action.

"It is a mistake to assume that the only terrorist that's a serious terrorist is the kind of guy you see on television, that's a kind of James Bond type," Chertoff said Friday. "The fact of the matter is mixing a bomb in a bathtub does not take rocket science."

Rep. Peter T. King, R-N.Y., the chairman of the House Committee on Homeland Security, said the cases also demonstrate that the authorities cannot always delay charges until they have built airtight criminal cases.

"It was essential that the FBI get rid of its pre-9/11 mentality of not making an arrest until they have enough evidence to convict," King said Friday in an interview. "You can't be locking everyone up. But so long as there are reasonable grounds to make the arrest, they should do that."

Carl W. Tobias, a law professor at University of Richmond in Virginia who tracks terrorism cases, said the modest evidence disclosed so far in some recent cases related to the ability of the suspects to deliver on threats has caused him to wonder if politics might be a factor.

But Pasquale J. D'Amuro, former assistant director in charge of the FBI office in New York, said that law enforcement officials have no choice but to act pre-emptively, even if planning has not yet turn into an active plot.