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But when Elzahabi finally goes on trial Monday in federal court here, he faces no charges of terrorism or committing violent acts. Instead, he will be tried on three counts of possession of a fraudulent immigration document for allegedly using a green card — obtained through a phony marriage — to try to get a job.
While Elzahabi faces trial at a later date on charges of lying to the FBI, experts on terrorism law say his prosecution is similar to many others in the war on terror. Many suspects arrested on material witness warrants or broad allegations of supporting terrorism wind up charged with immigration offenses or fraud.
“It’s kind of like Al Capone,” said Jeff Addicott, director of the Center for Terrorism Law at St. Mary’s University in San Antonio, referring to the Prohibition-era Chicago gangster convicted of income-tax evasion. “The federal authorities are using whatever laws they can to pursue these types of cases.”
According to statistics the center gathered from public data, 6,500 people were arrested between October 2001 and August 2006 and classified by federal authorities as international terrorists. Of those, only 27 percent were convicted in federal court and identified as “international terrorists” by the Justice Department.
And most of those convicted weren’t charged directly with terrorist activity. In about 57 percent of the cases, the lead charges were fraud or making false statements, Addicott said.
Steve Vladeck, an associate law professor at American University’s Washington College of Law, compared the Elzahabi case to the current trial of Jose Padilla, a U.S. citizen who has been in federal custody since his 2002 arrest on suspicion of plotting to detonate a radioactive “dirty bomb” in the U.S.
Padilla was held for 3½ years as an enemy combatant, then added in late 2005 to an existing terrorism support case in Miami. The Miami indictment does not include the “dirty bomb” allegations.
Elzahabi, a 44-year-old Lebanese national who moved to Minneapolis in 2001, was arrested May 4, 2004, in Minnesota on a material witness warrant in a terrorism investigation. The material witness law gives the government wide latitude to arrest and detain witnesses who might flee before testifying in criminal cases. In the end, Elzahabi was indicted on the false statement and fraudulent document charges.
Each charge in the indictment carries a maximum sentence of five years in prison and a $250,000 fine.
Before Elzahabi was arrested, he underwent 17 days of questioning by FBI agents. During these interviews, Elzahabi said he came to the U.S. on a student visa in 1984 and later paid a woman in Houston to marry him. He divorced her after he got his green card, according to an FBI affidavit.
Jeffrey Paulsen, chief of the criminal division of the U.S. Attorney’s Office, declined to talk about details of Elzahabi’s case. Monday’s trial will focus only on the immigration charges, he said.
Prosecutors submitted a request this week to use evidence in the upcoming trial that Elzahabi routinely damaged his Lebanese passport, then exchanged it for a new one, when he wanted to conceal his travel to certain countries.
They also seek to introduce evidence indicating Elzahabi helped another man get a fraudulent Massachusetts driver’s license. That man — Raed Hijazi — was later convicted in Jordan for his role in a failed bombing plot targeting Americans and Israeli tourists. Prosecutors would be limited only to evidence about the fraudulent license; they wouldn’t mention the terrorism ties.
The judge has not yet ruled on that request, but prosecutors say the evidence is relevant because these acts are similar to obtaining a false green card — and they show that Elzahabi intended to commit fraud.
In other counts that will be tried later, Elzahabi is accused of lying to FBI agents about shipments of walkie-talkies and other communications equipment to Patkistan. According to the affidavit, Elzahabi told the FBI he didn’t know what was in the packages. But the FBI said a detailed letter outlined various items inside and instructed Elzahabi to remove them from the boxes and reship them to Pakistan.
Elzahabi is also accused of lying about his association with Hijazi and about his role in helping Hijazi get a driver’s license.
Elzahabi has been in federal custody since his arrest. This January, defense attorney Paul Engh received a letter from prosecutors saying that in May 2004, cameras and microphones had been installed in Elzahabi’s prison cell and in the prison recreation room — where Elzahabi and Engh met to discuss legal matters.
The letter said privileged conversations may have been inadvertently recorded, but the tapes and hard drives were never reviewed.
Engh tried unsuccessfully to get the case dismissed, saying Elzahabi’s right to counsel was violated and that prosecutors had prejudiced his defense. After learning of the recordings, and because he has been kept in isolation and required to undergo strip searches, Elzahabi refused to meet with his attorney for months. It was not immediately clear whether he would attend his own trial.
Engh declined to make himself available for an interview.
Michael Greenberger, director of the Center for Health and Homeland Security at the University of Maryland, said Elzahabi’s case raises some concerns because of the length of time he has been held and because the allegations are largely dependent on voluntary conversations he had with the FBI.
He said Elzahabi is likely a “third-rate” terrorist and his trial won’t have a huge effect in the war on terror. But he added: “When someone violates a criminal statute, the United States has every right to pursue that, whether it is a dire threat to national security or not. You can’t begrudge the United States for strictly reinforcing immigration laws or anti-terrorism laws.”
