An alleged Hamas operative is likely to be among the first criminal defendants to try to capitalize on President Bush's commutation of the 2 1/2 year prison sentence imposed on a former White House aide, I. Lewis Libby Jr., for obstructing a CIA leak investigation. Mohammed Salah, 57, is scheduled to be sentenced by a federal judge in Chicago next week on one count of obstruction of justice. In February, a jury convicted Salah and a co-defendant, Abdelhaleem Ashqar, of obstruction, but acquitted the pair of a far more serious charge of racketeering conspiracy in support of Hamas's terrorist campaigns in Israel, Gaza, and the West Bank.
"What the president said about Mr. Libby applies in spades to the case of Mohammed Salah," Salah's defense attorney, Michael Deutsch, told The New York Sun yesterday. "We'll definitely be bringing it up to the judge. Ö It's going to be a real test, a first early test of whether we're a nation of laws or a nation of men."
Mr. Deutsch is seeking a sentence of probation for his client. Prosecutors contend that federal sentencing guidelines call for Salah to be sentenced to up to almost 22 years. However, the prosecution acknowledges that the maximum sentence the law allows on a single obstruction count is 10 years.
Despite Salah's acquittal on the racketeering charge, which could have carried a life sentence, prosecutors have asked Judge Amy St. Eve to find that the evidence presented at trial proved Salah was part of a terrorist conspiracy. "The jury did not find beyond a reasonable doubt that defendant Salah committed racketeering conspiracy. The standard at sentencing, however, is not proof beyond a reasonable doubt," the prosecution wrote in a recent court filing.
Prosecutors have also asked the judge to consider a series of alleged offenses from the 1990s that Salah was never charged with, including bank fraud and perjury on behalf of a Hamas leader then facing deportation, Mousa abu Marzook. "To sentence Mr. Salah on the basis of non-relevant, stale, and acquitted conduct would most assuredly result in an unreasonable sentence and promote disrespect for the law," Mr. Deutsch said in papers filed with the court.
At Libby's sentencing, his lawyers made similar complaints that prosecutors were seeking to lengthen his prison term based on a conspiracy to leak the name of the CIA operative, Valerie Plame, even though no charges were brought for the leak. Judge Reggie Walton sided with the prosecution in that dispute and by so doing may have added more than a year to Libby's sentence.
When Mr. Bush commuted that prison sentence on Monday, he made particular note of the alleged unfairness in how Libby's sentence was calculated. "Critics say the punishment does not fit the crime : Mr. Libby was a first-time offender with years of exceptional public service and was handed a harsh sentence based in part on allegations never presented to the jury," the president wrote. He did not say explicitly that he agreed, but said those issues were among the "important points" he considered in making the decision to spare Libby from prison.
"It applies to an even greater extent in Mr. Salah's case," Mr. Deutsch said. "In our case, these allegations were presented to a jury and he was acquitted."
Mr. Deutsch also noted that while Libby was convicted of lying to the FBI and a grand jury in a criminal investigation, the lies Salah was convicted of telling were part of his defense to a civil case brought by the family of a victim of a Hamas-sponsored bombing. Salah, a Palestinian Arab born in Jerusalem who now holds American citizenship, was charged with giving false answers to written questions about his travels and his contacts with Hamas operatives. Legally, Mr. Bush's explanation for granting clemency to Libby sets no precedent and the commutation has no effect in any criminal case but that of the former chief of staff to Vice President Cheney. However, defense lawyers believe it amounts to an endorsement of various gripes they have with federal sentencing procedures.
"There is so much good fodder in the president's statement," a law professor who specializes in sentencing issues, Douglas Berman of Ohio State University, said. "I think any very good defense attorney could and should look for ways to use the statement aggressively." The professor cautioned, however, that judges were still obligated to follow existing precedents.
The issue of enhancing a defendant's punishment on account of acquitted or uncharged conduct has been raised in several recent Supreme Court decisions but not definitively resolved. In an opinion just last month, Justice Scalia said the current sentencing system suffers from a "patent constitutional flaw" in part because of the continuing role "judge-found facts" play in determining a sentence's constitutionality.
The Libby commutation is also expected to be raised when Salah's co-defendant, Ashqar, is sentenced in a few months. "If you consider the Ashqar case under what the president has said, there certainly seem to be a lot of reasons for leniency," Ashqar's attorney, William Moffitt, said yesterday. "I think you'll probably hear a lot about Mr. Libby and President Bush."
There are also some direct links between the Libby trial and that of Salah and Ashqar. The special prosecutor in the Libby case, Patrick Fitzgerald, is the United States attorney in Chicago and runs the office that prosecuted Salah and Ashqar. Mr. Fitzgerald did not appear in court at the Hamas-related trial, though he was in court daily for Libby's.
In addition, a former New York Times reporter, Judith Miller, figured in both cases. In the CIA leak probe, Ms. Miller served nearly three months in jail for contempt after she refused to identify her news sources, one of whom turned out to be Libby. At his trial, the veteran journalist testified about their discussion and that he disclosed to her the identity of the CIA operative in question. At Salah's trial, Ms. Miller testified that she witnessed an interrogation of Salah at an Israeli jail and saw no indication that he had been tortured.