Two years ago, former Al Qaeda member Jamal Ahmed Al-Fadl helped lawyer Patrick J. Fitzgerald convict four men for bombing two U.S. embassies in Africa. On the witness stand, Al-Fadl told the Manhattan federal prosecutor how he smuggled weapons on camels and talked to Osama bin Laden about jihad in his front yard. He was the star witness.
Now, Fitzgerald will personally take on his first case since becoming the chief federal prosecutor for the Chicago area. The trial of Enaam Arnaout, 40, accused of defrauding donors to his charity in Palos Hills and helping terrorists, is scheduled to start Monday in U.S. District Court and expected to last two to three weeks.
Fitzgerald is apparently hoping Al-Fadl again will be a star witness, linking Arnaout’s charity to Al Qaeda.
But this case is likely to be a harder sell than the embassy bombings. In recent rulings, Judge Suzanne Conlon has indicated that she will be tough on prosecutors and could limit the evidence introduced at trial. She could grant a request by defense lawyers to bar Al Qaeda from being mentioned at all. It’s not clear how much Al-Fadl will be allowed to say in his testimony.
The trial is an important one in the post-Sept. 11 landscape. After the attacks, the government launched an investigation into Islamic charities suspected of funneling donations toward terrorist causes. It closed three charities, including Arnaout’s Benevolence International Foundation, and it is still investigating many others.
Arnaout is the first and only leader of an Islamic charity to face criminal charges since the Sept. 11 terrorist attacks. He also has become a rallying point for activists and Muslim leaders who have accused the government of being on a witch hunt against Muslims and Islamic charities.
“It’s the first actual trial involving a (supposed) front organization,” said Matthew Levitt, a former FBI counterterrorism analyst who is now a senior fellow at the Washington Institute for Near East Policy. “I’m sure the government is interested in prosecuting similar cases.”
The case against Arnaout, a naturalized U.S. citizen from Syria who ran Benevolence, is also not as clear-cut as the embassy bombings, experts said. He is not accused of having anything to do with terrorist attacks such as Sept. 11. He only is accused of sending some of the charity’s donations to Al Qaeda and other violent causes.
“It’s going to be a hard case for the government to prove,” said Rita Katz, a terrorism expert at the SITE Institute in Washington, D.C. “There is no check from Benevolence to Al Qaeda’s bank account to finance a certain terrorist attack against the United States.”
Federal prosecutors have charged Arnaout with seven criminal counts, including racketeering conspiracy, money laundering, mail fraud and material support of terrorism. Benevolence, which raised $3.6 million in 2001, was not named in the indictment.
Along with Al-Fadl, prosecutors will rely on internal memos and documents seized in Benevolence offices in Palos Hills and Bosnia. The government has described Arnaout as everything from bin Laden’s one-time driver to the Al Qaeda historian. In court filings, prosecutors quote notes found in the Palos Hills office: “Unwritten law no matter how poor/sick–first priority is for mujahedeen” (holy warriors).
A file marked “Sudan” found in the Palos Hills office said that Benevolence aimed to support jihad and the mujahedeen from its first day.
Court filings suggest that defense attorneys will argue that Al-Fadl is an unreliable witness. They also will say that Arnaout is being targeted unfairly because of associations he had 15 years ago, when he lived in Pakistan and helped Afghan fighters in the war against the Soviet occupation.
“The U.S. intends to try Enaam Arnaout not for acts he committed in violation of U.S. laws, but rather for associations he had over a decade ago, before he relocated to this country, with people who were at the time American’s allies but who are now its enemies,” defense lawyers wrote.
In his testimony in New York, Al-Fadl acknowledged being a founding member of Al Qaeda. He said bin Laden moved the operation to Sudan in about 1991 to be closer to the Arab world, after operating out of Afghanistan during the war. He said Al Qaeda was like a corporation, complete with ID cards, a payroll office and bonuses for good work.
Al-Fadl told the jury what bin Laden once said, eight years before Sept. 11: “The snake is America, and we have to stop them.” His testimony withstood harsh cross-examination, even though he left Al Qaeda in 1996 after being caught embezzling $110,000.
At the Arnaout trial, Al-Fadl could connect Benevolence to Al Qaeda: In late 1993 or early 1994, bin Laden allegedly told Al-Fadl that Al Qaeda was using Benevolence to move money to countries where Al Qaeda was carrying out operations. In 1995, bin Laden also allegedly mentioned to Al-Fadl that Benevolence was one of the charities Al Qaeda used.
In a court filing last week, prosecutors said Al-Fadl would also testify that the chief financial officer of Al Qaeda told him that a Benevolence employee was detained in Saudi Arabia in 1993, apparently because a link had been found between Benevolence and bin Laden.
Al-Fadl also allegedly attended a meeting at the Benevolence office in Croatia with Arnaout, another Al Qaeda member and others.
More Top Picks Best Magnifying Mirrors For Seniors
Experts said Al-Fadl was a key member of Al Qaeda’s administration in Sudan, where Benevolence allegedly opened an office after Al Qaeda agreed to train fighters in guerrilla tactics for the Sudanese ruling party.
“He’s proven reliable and effective at a previous court trial,” said John Parachini, a policy analyst at the Rand Institute who specializes in terrorism. “He’s proven to be credible.”
But there’s a question how much of his evidence can be introduced.
Last month, prosecutors filed a 101-page document called a Santiago proffer that aimed to admit into the trial hearsay evidence such as Al-Fadl’s testimony about his conversations with bin Laden.
A judge’s approval of a Santiago proffer, filed in conspiracy cases, gives blanket admission to such hearsay. But Judge Conlon tossed out the proffer last week, saying that it failed to identify which evidence supported which of the three separate conspiracies alleged by the government.
The government might be able to introduce some of this evidence in different ways. Prosecutors could ask the judge to admit statements piece by piece, based on evidence presented at the trial.
But Mark Flessner, a former assistant U.S. attorney in Chicago, said the judge’s ruling meant big problems for the government.
“They have a lot of evidence,” Flessner said. “The big question is what evidence is going to go before the jury.”
He also said questions about the evidence might make it especially difficult for the government to prove the material support charge, which is the heart of the terrorism case. The fraud charges might be easier because of Arnaout’s involvement in the charity’s day-to-day operations.
Fitzgerald could have even bigger problems: Arnaout’s attorneys have asked the judge to bar the government from even bringing up bin Laden and Al Qaeda at the trial, arguing that it will unfairly prejudice the jury and that it is irrelevant.