Elmer Smith: Fort Dix Five got better deal than most accused terrorists

THEY tricked out the courtroom with as many flat screens as you'd see in a sports bar, each animated with crawling type, flashing enlargements and secretly recorded videos of the Fort Dix Five.

The jury of seven women and five men plus five alternates spent two months watching multimedia visual aids and listening to hours of testimony, much of it translated into English from Arabic and Albanian.

On Wednesday, the jury retired to sift through tall stacks of documents gleaned from 12,000 wiretaps. They have had to digest hundreds of hours of testimony and detailed arguments from seven lawyers plus U.S. District Judge Robert Kugler's detailed instructions on applicable law.

All they have to do now is decide whether they believe Mahmoud Omar, the government's well-paid chief witness, factoring in the reality that he is a felon, he's in the country illegally and he's a certified liar.

Or, if they believe that five foreign-born men are harmless blowhards or terrorists plotting to kill U.S. troops for perceived crimes against Islam.

Either way, Mohamad Shnewer, Serdar Tartar and brothers Shain, Eljvir and Dritan Duka got a better deal than the hundreds of alleged terrorists who were held at Guantanamo without access to the kind of justice most of us take for granted.

These five had a right to habeas corpus, which forces the federal government to show why they should be held, the right to face their accusers, the right to a trial by jury and access to competent attorneys who made sure they got all those rights.

They had all the protections of the U.S. Constitution, even those who are undocumented immigrants. Maybe that's more justice than they deserve.

But I'm not willing to risk my access to justice by denying it to someone because I don't think he deserves it. I'm not that terrified yet.

They face life in prison if convicted of conspiracy to commit murder and attempted murder. Those charges stem from their mostly fanciful "plots" to attack Fort Dix, Dover Air Force Base or the Army-Navy game, depending on which day Omar recorded them.

My verdict, after admittedly only a few days in the courtroom, is that all six combined are not worth what it would cost to bubble-wrap them and ship them back where they came from.

They certainly aren't worth the $236,000 the FBI paid Omar to spy or entrap or whatever he was doing with these hapless, would-be jihadists.

The good news is that, even if they are not guilty of the major charges, the Duka brothers' attempt to buy rifles illegally from Omar is probably going to be enough to earn them a one-way ticket out of here.

A tougher question is whether supplying a map of Fort Dix or a drive-by "surveillance" of military bases or the paintball games and target practice they engaged in are enough to constitute an "overt" action in furtherance of a conspiracy.

The jurors must resolve that while being locked away together, maybe even through the holidays. They can't let being sequestered or the fact that some of them have missed work since October enter into their deliberations.

If the jurors are like most of us, the images of those planes slamming into the World Trade Centers are never far from their minds. But they have to disregard that, even though they have watched recordings of the defendants rooting for the bad guys while viewing videos of terrorist acts.

They can't just judge the defendants. The government's conduct is also in question. Did Omar prod the defendants to become active jihadists? Would there have been a crime without his participation?

It's a lot to ask. But we do it all the time.

We could take the first 100 people who pass the courthouse door and pick a jury of 12 who could sort out all of these isssues and reach a just verdict.

They'd do it because they know that any one of them may stand accused some day.

You can't hold onto those freedoms without giving them to others, even to people who plot or fantasize our destruction. *

Send e-mail to smithel@phillynews.com or call 215-854-2512. For recent columns: http://go.philly.com/smith