In a dramatic reversal, Federal Court Judge Gerald E. Rosen earlier this month threw out the terrorism convictions of two Detroit Arab immigrants.

In June 2003 Abdel-Illah Elmardoudi and Karim Koubriti were convicted on terror and document fraud charges. A third man, Ahmed Hannan, was convicted of document fraud and a fourth was acquitted.

Last year John Ashcroft's Justice Department had hailed the arrests as its successful breakup of a major sleeper cell and the convictions as its first major courtroom victory in the war on terror. The case was repeatedly cited in Bush Administration claims that it was winning the war on terrorism. The Justice Department prosecutors lied and misled and withheld evidence. As Judge Rosen said, they developed early on a theory about what happened "and then simply ignored or avoided any evidence or information which contradicted or undermined that view.'

According to the account in The New York Times, Rosen was sharply critical of the prosecution of the case, citing a pattern of misconduct on the part of the Justice Department: "Although prosecutors and others entrusted with safeguarding us through the legal system clearly must be innovative and think outside the conventional envelope in enforcing the law and prosecuting terrorists, they must not act outside the Constitution …. Unfortunately, that is precisely what has occurred in the course of this case.'

In fairness to the Justice Department, in a 60-page memo that harshly criticized the work of its own prosecutor (Assistant U.S. Attorney Richard Convertino, the lead prosecutor in the case) the department told Rosen that it supported the defendants' request for a new trial and would no longer pursue terrorism charges against them. (In a new trial the defendants would only face fraud charges.)

The internal investigation of prosecutorial misconduct found enough problems that there is "no reasonable prospect of winning,' the government conceded. "In its best light, the record would show that the prosecution committed a pattern of mistakes and oversights that deprived the defendants of discoverable evidence (including impeachment material) and created a record filled with misleading inferences that such material did not exist,' the department told the court.

In short, the Justice Department prosecutors lied and misled and withheld evidence.

As Rosen said, they developed early on a theory about what happened "and then simply ignored or avoided any evidence or information which contradicted or undermined that view.'

The case raises important questions. It is more than alarming that those entrusted with the business of justice can so easily be misled and so eagerly pervert the rights of alleged criminals. Ashcroft seems to run the Justice Department in the interests of re-electing his Republican boss by "winning the war on terrorism,' Bush's major campaign ploy.

It parallels how the Bush administration is ignoring, if not defying outright (according a recent Los Angeles Times editorial), the Supreme Court's ruling that all terror suspects must be able to challenge their imprisonment. The editorial described the opening round of detainee military tribunals at Guantanamo Bay last week as "something between a Mel Brooks farce and the kangaroo courts of former Ugandan dictator Idi Amin. Maybe Captain Kangaroo courts. The proceedings didn't look anything like justice, military or otherwise.'

The Supreme Court had made itself clear last June. Terror suspects are entitled to basic due process. Essential to that promise of due process is a fair trial. The Justice Department's behavior in the Detroit convictions makes us uneasy that terror suspects will not be treated fairly.

And with the enlarged definition of terrorism the department has been using lately, it is not only the immigrant Arab but also anyone who disagrees with administration policies who should begin to worry.

Before the Republican convention the FBI investigated and interrogated potential political protesters, putting a serious chilling effect on the First Amendment rights of citizens to engage in legitimate protest. The FBI conduct also implies that there is a clear connection between such legal protest and possible terrorist activity. If someone disagrees with government policy and plans to protest, then they become potential enemy combatants, security threats or would-be terrorists.

As the Republican convention began, there was less talk of threats by terrorists and more talk of threats posed by political protestors. The almost 2,000 protesters who were arrested in New York refer to the city as "Guantanamo on the Hudson.'

That the Justice Department admitted its egregious conduct in the Detroit case is heartening to some. Jonathan Turley, a law professor at George Washington University, is quoted as saying: "To have one of the department's few wins move into the loss category is pretty remarkable …. The Detroit case is like a 20-car pileup for Ashcroft. You have an open feud with the former persecutor and ultimately the abandonment of the case.'

The Justice Department's request to Rosen may be reassuring, but David Cole, Georgetown University law professor, best sums up the real issue: "The case fits into a broader pattern of the Ashcroft Justice Department overplaying its hand in terror cases and making broad allegations of terror without the evidence to back it up.'

Most important, the case leaves the right to a fair trial in serious question.

Henry Silverman is professor emeritus of history at MSU. His specialty is 19th and 20th century political, social and cultural history. He is also the president of the Lansing chapter of the ACLU. His column appears every other week.

Commentary:
Mind-blinding it's it? I don't understand how it's possible for this type of prosecutorial misconduct to take place, other than through corruption at the highest levels. Everything the government did was wrong. I can't wait until growups take power again.