By Joyce Kryszak
Buffalo, NY – U.S. Magistrate H. Kenneth Schroeder Tuesday granted bail to one of the six Lackawanna men being held on charges of suspected terrorism. Sahim Alwan, 29, is the only defendant the judge decided could be monitored safely outside jail. The divided decision leaves room for possible appeals from all sides in this historic legal battle.
U.S. Attorney for the Western District, Michael Battle, had little to say following the decision. An appeal is still possible by either the prosecutors or by any of the defense attorneys for the men who aren't being released. All sides say will have to study the judge's legal rationale more carefully first.
With more than 100 pages, including detailed citations, that could take awhile.
The conditions set for Alwan's release alone occupy the equivalent of a chapter. His attorney Jim Harrington said, despite what he called extreme conditions, they're still pleased.
"This is an unusual case, and I think if you listen to the conditions and the reasoning that the judge gave in making his decision, whether I agree with him or don't agree with him, I think you can understand why the judge would make these conditions," Harrington said.
There are 16 conditions. Among them, $600,000 of bail and strict home confinement. That includes constant electronic surveillance with a GPS, or Global Positioning Satelite system, and banning of any outside communication device other than wire tapped phones.
Harrington said it may take a week for Alwan's family and friends to secure bail and for electronic devices to be installed. The court directed Alwan to cover all costs associated with the surveillance.
Harrington believes the judge deemed his client less of a threat because Alwan rejected the "crazy things" he heard at the terrorist camp. Alwan stated that the other men stayed and received the full training.
But defense attorney Rodney Personius said the judge placed too much faith in the statements of fellow defendants.
"All that the evidence that the judge pointed to in terms of what allegedly took place overseas was based upon the statements of Mr. Alwan and Mr. Al Bakri," said Personius. "So, the judge, of necessity, had to find that both of those statements were wholly accurate."
In his decision, the judge also heavily cited a document on suicide bombings that was seized from the home of Personius' client, Yasein Taher.
Personius defended the document calling it a "scholarly discussion," which he said was found among many religious papers.
A preliminary hearing, which would determine if there is enough evidence to proceed to trial, is set for October 22. However, prosecutors may opt instead to secure a grand jury indictment before that.
John Molloy is the attorney for Mukhtar Al Bakri, one of the five men who will stay in jail. Molloy said the fact that one was granted bail shows the weakness of the government's case.
"We do not feel the case was strong from the beginning," said Molloy. "The bail decision, especially as it pertains to Alwan, would indicate the judge has some question as to whether he, or we would say the other men, are terrorists."
The men are charged with providing material support to a terrorist network. However, the statute they're charged with violating was called unconstitutionally vague by one court.
In upholding the statute Tuesday, Judge Schroeder cited another ruling, a federal district court ruling in the John Walker Lindh case. Personius said the so called "American Taliban" case doesn't apply here.
"There's a lot of distinguishing facts from Lindh from this case," said Personius. "Lindh took up arms against the United States. Lindh was involved in an uprising at a prison. Lindh actually carried firearms and used them."
Appeals of Schroeder's ruling could still be filed by some, or all of the defense attorneys, as well as the prosecution. Those motions could be made before U.S. Justice William Skretny or directly to the 2nd Circuit Court of Appeals.
The preliminary hearing is set for 2:00pm on October 22nd.