First Case Against Alleged Iraqi Insurgent Moves Forward

Prosecutors link him to roadside bombs; he asks court to drop charges.

October 21, 2008— -- He is accused of traveling to Iraq to aid the insurgency, making videos on how to use roadside bombs and planting them to blow up U.S. forces there. There is no doubt that the charges against this alleged terrorist -- an Iraq-born Dutch citizen -- are serious.

But there is also little secrecy surrounding the charges against Wesam al Delaema, whose case is now moving forward in U.S. federal court in Washington this week.

As the first alleged Iraqi insurgent to be tried in the United States, Delaema's case is something of a test for the court system, where this week the court began hearing testimony on what evidence will be permitted at trial and whether to dismiss the charges entirely.

Delaema's lawyers argue that the judge should dismiss the case because his alleged crimes occurred "under a regime of belligerent occupation by the forces of the United States military" and in violation of the Geneva conventions. His attorneys are also hoping the judge will bar evidence from wiretapping recordings by the Dutch police, which allegedly shows Delaema raging against the U.S. invasion and calling for the death of Americans.

Prosecutors argue that their case is on strong legal ground because the particular part of the Geneva Convention cited by the defense does not apply to Delaema. And, they argue, their evidence is solid and are expected to show video clips of Delaema's interrogation by Dutch authorities to try to prove he was never coerced during interrogation. At the hearing Monday, the government began with testimony from the Dutch prosecutor, M.J. Van Ling, who led the investigation in Delaema beginning in 2004.

Delaema first came onto Van Ling's radar when an intelligence report dropped on her desk in August 2004. The suspicion: that Delaema, who had returned from a trip to Iraq in May, was among the insurgents pictured in the video of the beheading of U.S. contractor Nicholas Berg.

Though Van Ling and her colleagues never found any evidence to support a link to Berg, that tip began a more than eight-month long investigation, which led to Delaema's arrest in May 2005.

Initially the FBI was of little assistance, saying that any information they had on Berg would be classified, she said. Indeed, it wasn't until April 2005 she got formal word that U.S. officials did not think Delaema had been one of the men taped in the Berg killing.

So the Dutch set out on their own. Though wiretaps are considered a tool of last resort in the U.S., van Ling said they are commonly used in the Netherlands.

That is why, just weeks after getting the intelligence report, she asked the court to let her listen to Delaema's phone. The court initially rejected the request, but an appeals panel of three judges gave her the green light, she said.

That tap, renewed by law every four weeks, yielded some valuable insights, she said.

Though the conversations did not show any details linking the Iraqi-born Dutchman to the murder of Berg, Van Ling said, they showed a series of conversations with an individual in Iraq, in which he allegedly discussed support for the insurgency and details of particular attacks they hoped to include on film.

Delaema spoke of his desire to return to Iraq that had been stalled because of a lack of funds, she said. The problem was apparently solved because between November and January, Delaema returned to Iraq.

She said the wiretap also allegedly showed evidence that Delaema and his associates were involved in other local crimes such as a burglary and assault of an associate.

And Delaema's conversations also showed his connection to another alleged terrorist, an Iraqi born man who ran a garage, where Delaema sometimes worked, Van Ling added. Authorities believed that the men held meetings plotting against U.S. forces there and hid explosives inside the garage, Van Ling said.

Though it became clear there was no link to Berg, she said, Dutch authorities decided they had enough other material to arrest him.

During the raid on May 2, 2005, Dutch authorities, prosecutors say, seized a video of a group of men, with hooded masks calling themselves "Mujahideen from Fallujah," according to filings by the prosecution. On the video, the filing states , Delaema and his associates "declared their intentions to kill Americans in Iraq" and proceeded to display and discuss roadside bombs they planned to use against U.S. forces.

Following his arrest Delaema was taken to local police for questioning, according to prosecutors. But according to Dutch law, he did not have right to an attorney until his first appearance in court -- which can be up to three days after an arrest.

Prosecutors assert that it was clear from the video of his interrogation -- which they plan to show during this week's hearing -- that Delaema "did not feel the least bit coerced."

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