Unshielded

The widespread fallout from a federal case that began with the arrest of alleged terrorists and then turned into a widely cited textbook example of prosecutorial excess has now hit a Detroit Free Press reporter who's attempting to protect the identity of a confidential source.

Advocates are saying this latest twist in an already twisted saga is more evidence of the need for a federal shield law protecting journalists.

Meanwhile, critics continue to point to the failed case against the alleged Detroit "sleeper cell" as a prime example of the government's reckless post-9/11 anti-terrorism agenda.

"My impression is that there was a backlash against the broadly cast nets that really trace an origin to [former Attorney General] John Ashcroft and by extension to the Bush administration," says Richard Chasdi, a Wayne State University faculty member at the Center for Peace and Conflict Studies and author of three books about terrorism. He has followed the 2003 trial and its aftermath.

"There's a ripple effect from overzealous prosecution and acute problems within the jurisprudential process," he says.

The case began just six days after Sept. 11, 2001, when federal agents arrived at a southwest Detroit apartment searching for a man who was associated with a known al-Qaeda operative. He had moved to Chicago, but agents arrested the three men living in his former home and later a fourth, suspecting them of operating a "sleeper cell" with plans that included attacking a U.S. air base in Turkey.

Richard Convertino, as the lead federal prosecutor, tried the nine-week case in mid-2003 before Judge Gerald Rosen in U.S. District Court in Detroit. Karim Koubriti was one of two men convicted of conspiring to support terrorists and document fraud. Another defendant was convicted only of document fraud while a fourth was acquitted. The Bush administration celebrated the verdicts as successes in the war on terror.

But at the end of 2003, Rosen ordered a review of the court file after learning documents the prosecution had obtained were not turned over to the defense. A month later, David Ashenfelter, a Pulitzer Prize winner and a 26-year Detroit Free Press veteran, reported that the U.S. Justice Department had begun its own investigation into Convertino's possible ethical violations. Ashenfelter's story cited "officials, who spoke on condition of anonymity, fearing repercussions."

His sources said the investigation focused, in part, on Convertino's handling of a Lebanese immigrant with two weapons convictions and pending cocaine distribution charges who became an informant — and later a key witness — in the terrorism case. At Convertino's urging, the informant received a nine-month sentence instead of the 9 to 11 years the federal sentencing guidelines called for, Ashenfelter reported.

A month later, Ashcroft appointed a "special attorney" to investigate Convertino's conduct. Then, later in 2004, at the U.S. attorney's request, Rosen overturned all of the 2003 convictions.

One of the men, Abdel-Ilah Elmardoudi, was convicted in Iowa in 2006 of document fraud with some evidence collected from the Detroit apartment and sentenced to five years in federal prison. A second man, Ahmed Hannan, eventually pleaded guilty to insurance fraud and was deported. Farouk Ali-Haimoud, who had been acquitted of all charges, lives in the Detroit area, according to published reports. The fourth, Koubriti, works as a truck driver and has a civil suit pending against Convertino.

Convertino resigned in 2005, and the next year he was indicted on obstruction of justice and other charges in the terrorism trial. Prosecutors accused him of hiding evidence from the defense and presenting false evidence at trial. He was acquitted a year ago. Now in private practice in Plymouth as a defense attorney, Convertino sued the U.S. Department of Justice in a whistle-blower and privacy case, alleging that his rights were violated by the leak to Ashenfelter and that he was punished for complaining about shortages of resources to fight terrorism.

As part of the case's discovery phase, Convertino is seeking information from Ashenfelter about his sources for the 2004 report about the investigation. Convertino and his attorneys in the last week have declined several requests for an interview with Metro Times as have Justice Department lawyers.

In court documents, Ashenfelter had argued for protection under Michigan's "shield law," which protects reporters from revealing their confidential sources.

But there is no federal shield law, and federal courts have been divided on whether and to what extent the First Amendment protects journalists from revealing confidential sources. The House passed a bill earlier this year creating a federal shield law but debate stalled in the Senate. It could be brought up for a vote this fall. Both Democratic and Republican presidential nominees Sens. Barack Obama and John McCain support the measure but the Bush administration promises a veto if it passes.

Testimony from reporters has been sought at an increasing rate in recent years. According to the Reporters Committee for Freedom of the Press, a 2001 study reported 74 federal subpoenas sent to media while a 2006 study found 335. Of the 335, 21 asked for the names of confidential sources while another 13 sought information obtained under a promise of confidentiality.

"I think this case is just the latest of several good examples of why we need a federal shield law," says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "If we don't have a federal shield law, we're going to have more and more and more of these high profile cases involving federal employees who believe they've been wronged in some way and going after the feds. What they're trying to do is use the journalists to negotiate a settlement."

In an Aug. 28 order, U.S. District Judge Robert Cleland granted Convertino's request to depose Ashenfelter. Throughout his opinion, Cleland cited the Sixth Circuit Court of Appeals, the next level up from U.S. District Court in Detroit, and its determination that reporters do not have First Amendment privilege protecting them from revealing confidential sources.

"Simply put, this court is bound by the Sixth Circuit's determination," Cleland wrote. "Convertino is not asking for information that he knows, has already received through discovery from Ashenfelter or another source, or can ascertain from other intelligence he has accumulated during discovery."

Forty-nine states — including Michigan — have some type of shield laws protecting reporters from revealing their confidential sources. But Cleland found that Convertino's suit dealt with strictly federal issues and, therefore, state shield law did not apply.

Free Press attorney Herschel Fink says he is reviewing the ruling, only saying, "I do not agree" with Cleland's opinion and declining to discuss whether they plan an appeal. Ashenfelter declined to discuss the case. Cleland does not talk to reporters, a woman in his chambers said.

Attempting to compel reporters' testimony in civil cases is generally considered a weaker claim, says Dawn Phillips Hertz, attorney for the Michigan Press Association.

"The information [in Ashenfelter's story] was clearly in the public interest. Requiring Ashenfelter to disclose his sources will only create an inappropriate pall on journalism," Hertz says. "To conduct a witch hunt to punish the reporter and the paper is highly inappropriate."

Paul Anger, Free Press editor and vice president, says the paper is disappointed in the ruling and would be "aggressive" in fighting it.

"The feds, when they looked at this case, said basically it wasn't done fairly. What does that tell you? It tells you that there was a problem there. There was a person who recognized that and came forward and feared retaliation for doing so and acted as a confidential source and a whistle-blower," Anger says. "It would be our duty as journalists to provide that protection and for the courts to uphold it."

Richard Helfrick, the defense attorney for Koubriti, one of the men whose verdicts was overturned in the 2003 case, says the Ashenfelter order is one of many strands that offshoot from the original case.

"It's kind of like the whole thing has taken on a life of its own. It's kind of bizarre to tell the truth," he says. "What would have prevented it? One — if the original indictment hadn't been in Convertino's hands."

The case continues to garner attention nationally. Convertino's handing of the case is described in the prologue of a book published this year by New York Times Justice Department reporter Eric Lichtblau titled Bush's Law: The Remaking of American Justice.

Lichtblau, who won a Pulitzer in 2006 for his reporting on secret domestic eavesdropping, describes Convertino as a "foot soldier" in the Bush administration's then new — and frightening — style of combat in the global war on terror.

"I think that case really spoke to the times after 9/11 in terms of the government's just very, very aggressive attempts — understandable in some ways — to pursue any and all terrorism, even many of them that in hindsight turned out to be nothing," Lichtblau says. "There was a sense that the old model and the old rule no longer applied. The case really became a cautionary tale for what can go wrong when you're that aggressive."

Meanwhile, Koubriti's civil suit against Convertino accuses the former prosecutor of denying Koubriti a right to a fair trial and malicious prosecution. His attorney, Ben Gonek, says Koubriti is one of many people throughout the world victimized by overzealous prosecutors like Convertino in this new justice system.

"There are countless other examples of prosecution based on terrorist-related activities where it was found there was really no terrorism involved or the person was completely factually innocent," he says. "As long as the Republicans are in office or people with the Bush mentality, they will always prey on the fears of others. I'm not too optimistic about that changing."