New Haven Independent

Kravitz (pictured) made the comment in New Haven’s federal court Friday to prosecutor William Nardini as he threw out dramatic evidence previously presented against a former U.S. Navy sailor, Hassan Abu-Jihad. Abu-Jihad has been indicted for disclosing vulnerabilities of his naval battle group to a London-based jihadi website in 2001, along with material support of terrorism.

Click here and here for previous coverage about the testimony at issue.

“You’ve given me an awful lot of material,” Kravitz said Friday as he held aloft a large binder thick with extended transcripts of calls and emails referring to Abu-Jihad.

The exchange took place during a pre-trial hearing on the admissibility of much of the evidence in that binder for Abu-Jihad’s trial, which is scheduled for February 25.

Some of these statements are pretty scary stuff, and of pretty recent vintage. They suggest that Abu-Jihad might be good with a gun, and could provide logistical, moral, and financial support for domestic attacks on military bases in San Diego or elsewhere.

The legal hurdle to be overcome, from the government’s perspective, was that much of the evidence could be deemed hearsay. The evidence includes talks about Abu-Jihad between a an FBI-paid government informant and a since-convicted Abu-Jihad protégé, one Derek Shareef.

Another big obstacle was that the taped and wire-tapped transcripts also date from October 2006, wheras the crimes Abu-Jihad is being charged with and has been indicted for occurred five years earlier. At that time Abu-Jihad was a signalman on the U.S.S. Benfold. He allegedly sent classified emails to the Azzam Publications website in London revealing weaknesses of the naval battle group, of which his ship was a member, that at the time was steaming out to engage with the Taliban.

“I really want to make sure,” said Kravitz, “that the trial we have is about the crime charged [in 2001].”

Prosecutor Nardini responded that the 2006 material had bearing because it showed “m.o” — modus operandi, consciousness of guilt, and methods of secrecy employed in 2006 that related to 2001.

“For example,” said Nardini, “we don’t have the specific email that Abu-Jihad sent from the computer aboard the Benfold to Azzam publications. A jury is going to wonder why. If we have some of these materials from 2006, then we can point to the way he used coded words, his destruction of materials after he read that Shareef, for example, was arrested, and so forth. A pattern of secrecy, of destruction of evidence, and many other parallels.”

Kravitz was sympathetic but skeptical.

“Some of these statements are important, but we need to make sure this trial stays on focus. I mean if I tell the jury they cannot convict on a crime committed in 2001 based on 2006 evidence, and then, if we get bogged down in this material and have 60 percent of the evidence from 2006, then we have a problem, don’t we?”

Defense attorneys Robert Golger (of Quatrella and Rizio, in Fairfiled) and Dan LaBelle (of Halloran and Sage in Westport) seemed to be on the good side of the problem.

“How can post-event evidence be probative?” Golger asked, echoing the brief he had previously submitted arguing just that point. “So much time has elapsed between 2001 and these statements in 2006. Your honor, my client read about Shareef in the paper, for example, and he knew people were watching him, so it’s natural he would be ‘secretive.’ So no pattern can really be shown by the government.”

“Well,” replied Nardini, “when, for example, Abu-Jihad says in a phone call in early October to Shareef, ‘I haven’t been in the business of making meals in a while,’ we know he means by ‘making meals’ — providing intelligence. That shows, for example a pattern not only of secrecy and coding, but also of having provided meals, or intelligence before. The jury would need to hear this.”

Also at play and in question for Kravitz were technical legal issues. For example: whether the evidence provided by the informant concerned events, that is, discussion of attacks, potentially involving Abu-Jihad in 2006 that were “factually intertwined” with the events of the 2001 case at hand. Nardini said the parallels were compelling; Golger and LaBelle begged to differ.

Kravitz was also aware that it would be highly unusual to admit a lot of the evidence because of the time lag. He pointed out that some circuit courts never admit evidence of events subsequent to a case. “However,” he said, “we in the Second District do admit it. Nevertheless, no one has ever shown me a case when five years have elapsed. That would be a first for us.”

Kravitz appeared reluctant to be known for that first.

After more than two hours of argument, the judge made his ruling — a partial one, on some of the material. Because there was no independent evidence, apart from the informer and Shareef, including no statement from Abu-Jihad’s own mouth about the acts discussed for 2006, Kravitz said he could ‘infer’ no conspiracy. He disallowed all the evidence pertaining to potential attacks on the military bases. They also didn’t appear to him to be factually intertwined.

Kravitz also addressed another class of statements the government wanted to have admitted, “admissions” by Abu-Jihad. Kravitz told the attorneys they needed to get together to make sure that the grounds for accepting them - particularly their being factually entwined with the event in question - were agreed upon. “Although you see where I’m going with this.”

Nardini had no comment on the result of the morning’s hearing.

Kravitz’s decision reflected the court’s role as gatekeeper of the notion that every American — even one who changes his name to an Arabic one that means “father of jihad” — is innocent until proven guilty; and that in the course of being tried for one crime, accusation in another does not seep in.

Nardini had no comment on the result of the morning’s hearing.

Golger, although equally taciturn, appeared satisfied. “These are just pre-trial proceedings. We still have a trial to do.”

Next step occurs on Jan. 24, when the agenda includes agreement by both sides on the wording of questions on the jurors’ questionnaire to be sent out; as well as defense motions to suppress some information gathered in the case under a FISA search.

It wasn’t, in this instance, all victory for Golger. “Mr. Golger, ” said Judge Kravitz, before adjourning, “It is highly unlikely that I will find FISA unconstitutional.”

Tom Carson, a spokesman for the U.S. Attorneys Office, said his office had no comment.

The case is proceeding in New Haven because the server by which the Azzam Publications website operated was in Trumbull. The principals at Azzam, two British nationals — Babar Ahmad and Syed Talha Ahsan — have also been indicted in the District of Connecticut, and their extradition, which has been requested, is pending. That means a second terrorism trial may be on the way.