Fla. Case Puts Patriot Act To Test

For nearly a decade, the FBI tapped Sami Al-Arian's telephones and faxes, keeping what they learned about the University of South Florida professor a secret — even from their own colleagues.

The law at the time didn't allow the agents to share what they knew with fellow FBI agents who later began investigating possible criminal charges against Al-Arian, a Palestinian born in Kuwait who is accused of aiding terrorists.

That all changed in the spring of 2002 when the Patriot Act, the law enacted in the weeks following the Sept. 11, 2001, attacks, gave the government greatly expanded surveillance and search powers.

Now, nearly a year after Al-Arian and seven others were named in a 50-count racketeering indictment, the case is shaping up to be a test of the act, which helped rip down the wall between the two investigations.

Former FBI Agent Joe Navarro, who had been assigned to the criminal side of the investigation, recalls the meeting when the scope of the other FBI probe became clear.

"It was 'Holy moley! There's a lot there!"' he said.

"It was just one of those awesome moments when you realize how much there is," Navarro added. "When you realize there is literally a room full — not a box full or a filing cabinet full — of evidence. It sort of shocks you."

Al-Arian, Sammeh Hammoudeh, Hatim Naji Fariz and Ghassan Zayed Ballut face trial in 2005 on charges they used an academic think tank, a Muslim school and a charity as a cover for raising money for Islamic Jihad, the Palestinian group that is believed to be responsible for the deaths of more than 100 people in attacks in Israel.

Four other men have yet to be arrested.

Attorney General John Ashcroft has cited the Al-Arian case as one of the successes of the Patriot Act as he toured the nation in recent months in defense of the law.

Al-Arian has said his charity, school and think tank were legitimate enterprises designed to aid Muslims and foster greater understanding between Americans and Arabs.

Al-Arian's defense attorney, William B. Moffitt, has said he intends to challenge every aspect of the new law as the case heads to trial and has called the Patriot Act the product of a "frightened society," overreacting to the horrific events of Sept. 11.

"What we have done is precisely what the people who attacked us on 9/11 hoped we would do," Moffitt said shortly after being hired last fall as Al-Arian's attorney. "Even the notion it's called the Patriot Act is an interesting idea."

Investigators point to the Al-Arian case as a classic example of law enforcement being hampered by the previous rules that governed how agents could use evidence gathered under the Foreign Intelligence Surveillance Act, the post-Watergate law that sought to reign in potential abuses of electronic surveillance.

At the time, there was widespread concern presidents could use the FBI to monitor political enemies or outspoken groups under the guise of "national security" and FISA was offered as a solution.

Enacted in 1978, the act required the FBI to seek permission from a secret court to monitor the communications of suspected foreign spies or terrorists. Because agents could obtain those warrants by meeting a lesser standard than what's needed for wiretaps in criminal cases, the evidence gathered under FISA couldn't be used to bring a criminal case.

It was under FISA that the FBI began taping Al-Arian and colleague Ramadan Shallah's phones and intercepting their faxes. Over the years, the government acquired 152 wiretaps in the Al-Arian case, which generated more than 21,000 hours of intercepted telephone calls, prosecutors have said.

Former government agents who spent years investigating Al-Arian tell of a frustrating investigation hindered in part by the inability of intelligence agents to share what they knew until the Patriot Act became law.

"Everything changed," said Barry Carmody, who was among the team of agents working the criminal case against Al-Arian. "We needed to be able to gamble with 52 cards, not half the deck," he said.

One agent who knew the full gamut of the government's evidence against Al-Arian and his brother-in-law, Mazen Al-Najjar, was William West, who worked at the time for the U.S. Immigration and Naturalization Service.

West was the lead agent in the effort to deport Al-Najjar, who was held for more than three years on the then-classified evidence linking both him and Al-Arian to the Palestinian Islamic Jihad.

Government agents and attorneys were sharply criticized for holding Al-Najjar, who was eventually deported months before Al-Arian and the others were indicted. Al-Najjar is named as an unindicted coconspirator in court documents.

"It was terribly frustrating because from the perspective of the classified information we could use, we knew all along we were on the right track and we were pursing the right people," West said.