The defendants, along with one other, were accused of being part of a
sleeper cell of Islamic fundamentalists, collecting intelligence for
possible attacks abroad and in the United States. Two were convicted of
conspiracy to support terrorism and document fraud, one on only the lesser
charge; one was acquitted. Now the department acknowledges that it
"failed to disclose matters which, viewed collectively, were 'material'
to the defense" and the information it withheld "significantly
undermines the basis" of the most serious charges. In its 60-page
filing, the department eviscerates its own case. Prosecutors withheld
information impeaching their star witness's reliability, it says. A drawing
said at trial to be a "casing" sketch did not correspond with
photographs of the site it supposedly depicted -- photographs that were
never disclosed. Prosecutors' characterization of another sketch, the
government now says, was controversial within the government; it may have
been an innocent doodle. A videotape said to be surveillance of possible
targets may have been taken by Tunisian tourists. There is, quite simply,
nothing solid left of the case.
The chief problem here appears to have been the lead prosecutor, Richard
Convertino, whom the department yanked from the case after the allegations
arose and whose conduct it is now investigating. Judge Rosen described him
as having "simply ignored or avoided any evidence or information which
contradicted or undermined" his belief in the defendants' guilt. Mr.
Convertino has sued the department, alleging a smear, and his lawyer called
the withheld materials "insubstantial" and said they would not
have prompted a "reasonable possibility that a different verdict would
have resulted after trial." But it is highly unusual for the Justice
Department to scuttle its own case as it has here. It would be all the more
extraordinary if the materials it withheld were not, in fact, important.
The Justice Department responded seriously to the problem, appointing a
special attorney to clean up the mess. Its filing last week was
comprehensive and candid, and Judge Rosen lavished praise on the new team
for "vigorously pursuing and producing to the Court all possible
evidence" related to the train wreck. But how did errors so fundamental
go undiscovered for so long in such a high-profile case? Why were the
department's counterterrorism officials not more closely supervising the
work of prosecutors in the field? Why were red flags not raised when
officials of different agencies -- as the department now reports -- became
concerned that Mr. Convertino was interested only in analysis that supported
his case? Mr. Ashcroft needs to answer these questions and make sure that
future terrorism cases are not plagued by such dangerous errors again.