A federal judge hearing appeals in the 1998 bombings of two U.S. embassies in Africa questioned whether the attacks that killed 224 people amounted to the crime of terrorism or an act of war.
The question pertained to the appeal of Wadih El-Hage, a former associate of Osama bin Laden who was living in Texas at the time of the Aug. 7, 1998, attacks at U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. Twelve Americans were among those killed.
Assistant U.S. Attorney Leslie Brown argued Monday that El-Hage and three other men deserved life sentences for conspiring to attack Americans in a wide-ranging criminal plot that included the embassy attacks.
Brown said El-Hage had participated in meetings in the early 1990s at al-Qaida safe houses, was part of a terrorist cell in Nairobi, had visited bin Laden twice in Afghanistan and perjured himself twice in speaking to a grand jury probing the bombings.
But one of three members of the 2nd U.S. Circuit Court of Appeals panel noted that there was no evidence directly linking El-Hage to the attacks.
"Why is he any different than any German soldier in World War II?" Judge Jon Newman said, challenging the government to describe how far it can go to convict someone of a violent act even if he might not have known about it before it occurred.
Judge seeks line
Brown said El-Hage supported al-Qaida knowing that the organization wanted to kill U.S. civilians anywhere it could find them.
The judge then asked whether it would have been an act of terror "if German soldiers had bombed our cities, as we did theirs."
He seemed to answer his own question when he noted that the government appeared to view it as terrorism when it is carried out by a loose configuration of people rather than a country involved in a war.
"Are they enemy combatants?" he then asked. "It seems to me if somebody is a member of al-Qaida, they're unlawful combatants."
Then he added: "I'm a little troubled as to where the line is between war and criminal prosecution. Is it just a matter of prosecutorial discretion?"
He said there were probably U.S. laws during World War II that could have been used to prosecute German soldiers for participating in a conspiracy to kill Americans.
"The German soldiers conspired to kill Americans," he said.
Lawyers for El-Hage challenged the 2001 conviction on several grounds, including that the government failed to turn over videotapes of interviews with one of al-Qaida's first members and the prosecution's first witness until more than 15 months after the trial. Since early 2002, El-Hage has been in solitary confinement at the Bureau of Prisons' maximum security facility in Florence, Colo.
The federal panel didn't say when it would rule on the men's appeals.