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Wednesday, June 6, 2007

Elzahabi decision underlines difficulty in defending terror suspects

A curious terrorism-related case with local ties took another turn
this week when U.S. District Court Judge John Tunheim declined to suppress statements made by terrorism suspect Mohamad Elzahabi.

Elzahabi was indicted in June 2004. Prosecutors say he told FBI agents that he taught sniping in Afghanistan and that he associated with Al-Qaeda leaders. He was also charged with lying to federal agents about sending walkie-talkies to Pakistan, helping to get a Massachusetts driver’s license for a man later convicted of plotting a bombing in Jordan and possessing fraudulent immigration documents.

Elzahabi claimed that statements he made to federal agents were the result of coercion and deception while he was being questioned in a hotel room. He said he felt he would be arrested if he tried to leave the room. The judge ruled that although Elzahabi "was clearly deceived by the officers and now understandably regrets his willingness to cooperate,” the choice to talk was still his.

As Minnesota Lawyer reported in April, Elzahabi’s lawyers, Paul Engh and Peter Wold, asked the court to dismiss the case on the grounds of possible violation of attorney-client privileges. Federal prosecutors, in a letter to Engh and Wold, said conversations between them and Elzahabi might have inadvertently been included in round-the clock recordings being made of Elzahabi while he awaits trial. That request was denied also.

"We're disappointed," said Engh on Wednesday. "We felt that when the FBI held [Elzahabi] in a hotel room for 17 days, that was de facto custody. But the judge disagreed, and we have to live with that."

Elzahabi's case will be tried before a jury at a date yet to be determined.

The case points out the uphill challenge faced by attorneys who take on terrorism defendants. Because of constant surveillance in federal prisons, attorneys never know when client-attorney privilege has been breached, or often, where their clients are being held.

"The war on terror has intersected the court system, which is not meant for confidentiality," said Engh in April. "You need open systems and open discovery for the system to work."

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