The investigations of Saudi national Homaidan Al-Turki all come with a number: 315.
That, say his defense lawyers, is the FBI’s code for international terrorism cases.
It’s a designation, they say, that has thrown a national-security shroud over potentially important evidence and could impede their ability to defend him on criminal charges that have nothing to do with terrorism.
“We contradict the government’s protestations that this is a mere criminal case,” Al-Turki’s lawyer John Richilano said in a recent court hearing. “It is not. It is a terrorism case.”
Prosecutors have acknowledged in pleadings the existence of terrorism-related investigations of Al-Turki but have been tight-lipped about the nature of those probes, saying he isn’t charged with terrorism-related crimes and that such material is irrelevant to the charges at hand.
Al-Turki faces federal charges that he vastly underpaid his Indonesian housekeeper and kept her in the country illegally. He also faces state charges of raping her.
The prosecution, which is playing out in Denver’s federal court, is among a new generation of post-9/11 cases across the country in which national-security interests have run headlong into defendants’ right to due process.
Among the reforms enacted after the terrorist attacks of Sept. 11, 2001, was the breaking down of the wall preventing the exchange of information between law enforcement and intelligence agents.
As dual-track investigations have matured and resulted in charges, so too have concerns about defendants’ ability to learn everything about witnesses and evidence against them.
It’s an issue that is popping up throughout the country, said David Sobel, general counsel for the Electronic Privacy Information Center, a Washington, D.C., nonprofit.
“Without the complete picture of the government’s acquisition of information, it’s very difficult to assess the legality of the information collection,” Sobel said.
Others argue that there are sufficient safeguards, including the Classified Information Procedures Act, to ensure fair proceedings even when national security is involved.
“It acts as a safeguard for both sides,” said Dave Gaouette, an assistant U.S. attorney in Denver.
Claims of mistreatment
Government interest in Al- Turki began shortly after he arrived in the Unites States in 1995, his lawyers say. Al-Turki, 37, is a linguist and was pursuing a doctoral degree at the University of Colorado.
In 1999, his wife, Sarah Khonaizan, and their children left Saudi Arabia and came to live with Al- Turki in Aurora. The following year, their housekeeper and cook, a young woman from Indonesia, joined them.
The housekeeper’s visa expired in 2001, and authorities allege that Al-Turki and Khonaizan kept her passport from her, did not pay her and didn’t update her visa.
She later told investigators details that painted a picture of a wretched existence: Seven days a week, she cooked, cleaned and took care of the Al-Turki children. She worked 12 hours a day and slept on a mattress on a concrete floor in the family’s unheated basement. Prosecutors say she was paid the equivalent of $1.91 a day.
The housekeeper also contends that Al-Turki repeatedly groped and raped her when his wife wasn’t around.
In 2002, the housekeeper told Khaled Resheid, an acquaintance, that Al-Turki was being “inappropriate in a sexual way,” according to the criminal complaint.
It wasn’t until two years later that Resheid, a friend of the Al-Turki family, told government investigators about the situation, including the expired visa.
Resheid’s motivation for relaying that information to federal authorities is not explained in the criminal case and has become an issue as defense lawyers have tried to get a fuller picture of how the case developed.
Defense lawyers want to know details of other intelligence cases Resheid is involved in, and they want to determine his immigration status.
In a recent court hearing, Richilano said “just about everybody” in the case is Muslim, a foreign national or both. The government has a lot of leverage, he said, over noncitizens.
Seeking information
Defense lawyers have asked U.S. District Judge Walker Miller for copies of any interviews that people associated with the case have given to federal investigators – whether or not directly related to Al-Turki’s criminal charges – as well as their immigration files.
“We are entitled to know whether witnesses against Mr. Al-Turki have been or currently are being investigated for terrorism,” Marci Gilligan, a lawyer for Al-Turki, said in court.
Brenda Taylor, an assistant U.S. attorney prosecuting the case, has strongly objected on several occasions to what she says are overly broad requests that delve into areas that are irrelevant to the criminal case.
She also said she resented the implication by defense lawyers that the charges against Al-Turki were manufactured to pursue another agenda.
“There is the suggestion that there is this conspiracy to find some charges to bring against this defendant when in fact there is a victim in this case who will testify that she was sexually assaulted and treated in a way that amounted to forced labor,” Taylor said in court.
Miller, the judge, denied the sweeping request by defense lawyers to see details of other intelligence investigations that about 15 people associated with the case may be involved with.
But he told the prosecutor to look at information collected about or from prospective witnesses for what is commonly called Brady material – evidence favorable to the accused that is material to guilt or punishment.
Miller also decided to have prosecutors bring to him Re sheid’s so-called 315 cases for ex parte review. That means the judge will look at the material behind closed doors and without the defense present in keeping with CIPA.
If Miller finds anything he determines is valuable to the defense, the court would take protective steps, which could include removing classified information and summarizing, before the defense would get it.
Bryan Cunningham, a Denver- area lawyer and former deputy legal adviser to the National Security Council under President Bush, said CIPA procedures can draw out the process.
And while defense lawyers use CIPA as a way to fight for information necessary to preserve due-process rights, he said it also limits “gray mail.”
Cunningham described it this way: If defense lawyers determine that the “pain point” for the government is the potential release of classified information in a criminal case, they may engage in gray mail – a variation on blackmail – to attempt to force the prosecution to back off.
Susan Herman, a Brooklyn Law School professor who specializes in constitutional issues arising from the war on terrorism, said in such cases the presiding judge must pick apart the case.
The judge has to examine each fact, witness and document and determine how they affect due process when criminal and intelligence cases merge.
“Because there are now two entirely different tracks, there is bound to be a clash when those tracks meet in the middle,” Herman said. “It seems to me the rule of what’s fair in a criminal case cannot depend on what else the government is trying to accomplish.”
Staff writer Alicia Caldwell can be reached at 303-820-1930 or acaldwell@denverpost.com.
