Commentary: Liberty City case sets low standard for preemptive arrest

This editorial appeared in The Miami Herald.

For FBI, U.S. prosecutors and others looking for convictions in the trial of six Miami men accused of plotting terrorism, the third time was, if not a charm, at least sufficient. Five of the six men charged in an al Qaeda terror plot were convicted last week in the sting operation. Though satisfying for the law-enforcement agencies and the federal government, which trumpeted the arrests as an example of stopping terrorists before they strike, the case raises concern about the fairness of the trial and sets a low standard for preemptive arrests.

Defense lawyers believe a juror who disagreed with the jury-panel majority should not have been removed from the trial. They are fighting an uphill battle in trying to persuade U.S. District Judge Joan Lenard, who dismissed the juror, to grant a retrial.

Nevertheless, their contention raises a fundamental issue – whether the trial was fair – that can be grounds for a constitutional challenge on appeal.

From the start, this case was played out in a charged political environment. Former Attorney General Alberto Gonzales said the arrests of seven Liberty City men showed the government's ability to make an early strike against homegrown terrorists. FBI director Robert Mueller made television appearances touting the preemptive strategy.

If the expectations were that the FBI would monitor suspect groups, eavesdrop on their conversations, surveil their activities and stop them before they acted, this is not exactly what happened with the Liberty City group. The FBI used informants to infiltrate the group, and paid them $140,000 for their work. Until the informants arrived, the group seemed more hapless than threatening. They had no weapons, no plans and frequently asked the informants for money. The informants prodded the men and asked them to swear allegiance to al Qaeda – and they did. This wasn't so much a case of the FBI interrupting an ongoing terror plot, but of the agency providing a blueprint for it.

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