Al-Qaida cell, or misguided kids?

Federal prosecutors say the arrest of six Yemeni Americans in Buffalo is a blow against world terrorism. Or, critics say, it may be another mirage.

By Eric Boehlert

Published September 20, 2002 11:58PM (EDT)

For lieutenants who have been battling America's yearlong war on terror, often with mixed results, last weekend's series of high-profile busts was welcome news. The headlines began with a bloody shootout in Pakistan, where security forces arrested key al-Qaida members, including one suspected of helping mastermind the Sept. 11 attacks. Then in Singapore, 21 more suspected terrorists were rounded up.

But perhaps most startling was the news out of Lackawanna, N.Y., a depressed steel town outside Buffalo, where six young American citizens of Yemeni decent were arrested for being al-Qaida operatives, having trained last year at a notorious al-Qaida camp inside Afghanistan where Osama bin Laden himself delivered a hate-filled, anti-American speech.

Not only that, said triumphant law enforcement officials, but the 20-something Arab-American men made up a deadly sleeper cell awaiting instructions from al-Qaida to attack Americans. "The significance is huge," said one anonymous law enforcement official in describing the arrest to the Buffalo News. "It can't be overestimated."

Indeed, Michael Battle, the U.S. attorney for Buffalo, suggested the Lackawanna men could one day face charges of treason -- and the death penalty -- in connection with the case, which was so important that President Bush reportedly gave the order himself to round up the suspects.

"They appear to be soldiers who've been trained by an organization that's declared war on us, that's acted on that declaration, and that's killed thousands," says Michael Stone, coauthor of the new book "The Cell: Inside the 9/11 Plot." "They need to be treated as soldiers in wartime."

Yet as the initial press-and-prosecutor frenzy slowly fades, some legal experts, while conceding that not all the information has been made public, wonder if the "Buffalo Cell" will eventually fizzle out and end up like Jose Padilla, the so-called dirty bomb terrorist, and John Walker Lindh, the so-called American Taliban. Both men were initially touted by prosecutors and government officials as pivotal players in the war on terror; only later, as the facts intervened, was it clear they were more like bit players. Even White House officials have privately conceded that Attorney General John Ashcroft grossly overstated the case against Padilla when he first announced the arrest at a press conference.

Skepticism surrounding the Buffalo cell stems not only from the government's past track record, but from the fact that the case revolves around a new and relatively untested anti-terrorism law. And, more simply, prosecutors have offered no substantive evidence that the men were planning any sort of attack. Nor were the recent Lackawanna High School graduates involved in other activities usually associated with Middle Eastern terrorist cells, such as stockpiling weapons, forging identifications, surveying possible targets, learning new skills, receiving overseas payments, communicating with al-Qaida, or moving around to different locations.

According to news accounts, five of the six arrested men were born in America; the sixth became a naturalized citizen. All are avid soccer players; some are Buffalo Bills fans. Two were standout players for the Lackawanna High School soccer team, while another was voted friendliest in his graduating class. Five of the six men are now married, and at least three have children. One reportedly attends a community college, another works as a telemarketer, another as a counselor to disadvantaged youths; some are unemployed. Some among the Arab-American community in Lackawanna reportedly noticed a change in the men when they returned from their 2001 trip, such as growing beards.

Some observers suggested prosecutors would unveil new, incriminating evidence against the men at their bond hearing held Wednesday and Thursday. But among the scant new information produced was a cryptic e-mail one of the men sent in July which, the prosecutor suggested, proves the cell member knew about a pending terrorist attack. The e-mail read in part: "The next meal will be very huge. No one will be able to withstand it, except for those with faith. There are people here who had visions, and their visions were strong. They're visions were explained, that this will be very strong. No one will be able to bear it."

Prosecutors suggest "the next meal" is code for the next al-Qaida attack.

The lack of concrete charges against the Lackawanna men stands in sharp contrast to recent terrorism arrests made in Detroit, for instance, where suspected terrorists were charged with planning to attack a U.S. air base in Turkey, while another group there were charged with collecting guns, recruiting members and creating false IDs.

Prosecutors say the core of the case is that the Lackawanna men attended a seven-week camp during the spring of 2001. There, they received some weapons training, but left weeks before their training was complete. They returned to Lackawanna, where they worked menial jobs or were unemployed. Months ago, questioned by the FBI, the men denied ever going to Al-Farooq, the al-Qaida training camp in Afghanistan. But last week two of them changed their stories and admitted they did attend. The arrests were then quickly made.

"Whenever law enforcement captures some of these guys, the knee-jerk reaction is to assign great significance," says Tom Sanderson, deputy director of Transnational Threats Initiative at the Washington-based Center for Strategic and International Studies. "It is significant, but we need to see more."

"My impression is they're a bunch of wannabes," adds one terrorism expert who asked to remain anonymous. "I don't get the sense they're the sharpest knives in the drawer."

For now, the six men are charged only with attending Al-Farooq. By doing so, prosecutors say, they gave "material support" to an organization that had been designated by the State Department as a terrorist operation. Prior to 1996, it was a crime for an American citizen to support a specific act of terrorism carried out by an outlawed organization. After the Antiterrorism and Effective Death Penalty Act of 1996, which was passed in the wake of the Oklahoma City terrorist attack, it became illegal to support a terrorist organization, period. Those convicted of providing "material support or resources" to entities designated as "foreign terrorist organizations" faced 10 years in prison. That sentence was recently increased to 15 years under the USA PATRIOT Act, passed in the wake of the Sept. 11 attacks.

The prosecution of the Buffalo cell will likely center on what constitutes "material support." Or, as John Molly, an attorney for one of the Lackawanna men arrested, put it to reporters: "If you go to a camp in Afghanistan, is that enough to commit a crime?"

Prosecutors say if the camp is run by al-Qaida, the simple answer is yes. Even if the men went training for battles against the Northern Alliance and not America, they still committed a crime. Because according to the law, prosecutors don't have to prove motivation. They simply have to prove material support to a terrorist organization. Besides, prosecutors argue, bin Laden had already declared war on the United States in 1998 and had been linked to the 2000 bombing of the USS Cole, which killed 17 American sailors -- facts the men must have known before they set foot in Al-Farooq.

"They may be committed terrorists and ready to attack, but they may also be young guys who said, 'Let's go there,' and got in over their heads and came back and that was it," says David Cole, professor at the Georgetown University Law Center. "The law makes no differentiation."

Under the current statute, "material support" is defined as "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."

But the evidence revealed so far does not show that the Lackawanna men provided any of those things, but only that they attended Al-Farooq. And prosecutors have used that to charge them with providing training and personnel to al-Qaida.

"I think it's a stretch," says Leon Friedman, professor of constitutional law at Hofstra Law School in New York. "If they were sergeants and giving training, that's a much more plausible argument."

Cole also wonders how receiving training can be prosecuted as giving support. "The real question is: What thing of value did they give al-Qaida?" Cole says. "If anything, they received something from al-Qaida -- free training. If you send your kid to school to be educated for free, are you giving the school something of value?"

According to prosecution guidelines set forth in the United States Attorneys' Manual, the weight seems to be on giving training, not receiving it: "A person may be prosecuted under [the law] if and only if that person has knowingly attempted or conspired to provide instruction tothe organization designed to impart one or more specific skills." [Emphasis added.]

As for the definition of "personnel," the manual instructs prosecutors that "only individuals who have subordinated themselves to the foreign terrorist organization, i.e. those acting as full-time or part-time employees or otherwise taking orders from the entity, are under its direction or control."

Does attending three weeks of a seven-week training camp make the Buffalo men "employees" of al-Qaida? At least one of the Lackawanna men left just days after hearing bin Laden's fiery anti-American speech.

As one of the suspect's friends told the New York Daily News, the men originally traveled to Pakistan last year on a religious studies trip with Tablighi Jamaat, a sort of Muslim Jehovah Witness group, before taking a side trip to Afghanistan. "They were looking for spiritual guidance," the friend said. "Instead, they got political dogma and they knew it."

"The fact they left early may be an indication they were not willing to support al-Qaida," says Laurie Levenson, professor at Loyola Law School in Los Angeles. "Prosecutors have to find something they did at the camp that shows material support." Still, Levenson says, "in the current climate, the defense faces an uphill battle. Judges will likely find the broadest definition of material support."

American John Walker Lindh attended the same Al-Farooq training camp in 2001. But unlike the men in the alleged Buffalo cell, Walker trained for three months, eventually fought alongside Taliban soldiers against U.S. forces, met personally with bin Laden, and was informed that bin Laden had sent suicide bombers to America. Walker was initially charged with the same "material support" charges, but they were dropped as part his final plea agreement, when he pleaded guilty to fighting for the Taliban.

Just weeks before that agreement was struck, U.S. Judge T.S. Ellis, denying Walker's initial motion to dismiss the charges, addressed the question of material support in some detail. As Levenson noted, Ellis used a very broad definition and rejected Walker's defense that the "material support" statute was too vague, and that he did not provide "personnel" to a terrorist organization.

Prior to last year's terrorist attack though, U.S. District Judge Audrey B. Collins, while upholding much of the 1996 anti-terrorism law, ruled that the prohibition against "training" and "personnel" was too vague to be constitutionally acceptable, and entered an injunction. The U.S. Court of Appeals for the 9th Circuit upheld her ruling.

It's likely that the issue of material support will soon be revisited in court. For now, though, law enforcement agents say they have a solid case. "We have the key players in western New York," said Peter Ahearn, FBI special agent in charge in Buffalo. "They worked together, they socialized together, they lived within blocks of each other. It's a trained group of individuals that were trained in Afghanistan. It's an al-Qaida-trained cell."

But Cole, at Georgetown, isn't so sure. Thanks to the current law, he says, "the government is able to say, 'We got some terrorists.' But the question is, Did they really get terrorists or just misguided youths?"

Eric Boehlert

Eric Boehlert, a former senior writer for Salon, is the author of "Lapdogs: How the Press Rolled Over for Bush."

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Related Topics ------------------------------------------

Afghanistan Al-qaida George W. Bush Osama Bin Laden Terrorism Yemen