Monday appeal for Fort Dix Five

It's an uphill battle, they privately concede, and given the evidence and tenor of the times, they are decided underdogs.

But lawyers for the Fort Dix Five will get a chance Monday to convince a federal appellate panel that their clients' convictions should be overturned or, alternatively, that the five imprisoned terrorists should be granted new trials.

The hearing is scheduled for 1:30 p.m. before a three-judge panel of the U.S. Court of Appeals for the Third Circuit in Philadelphia.

Monday morning, beginning at 10, supporters of the defendants will stage a rally, the latest in a series aimed at focusing attention on a case that the protesters say is an example of anti-Muslim, preemptive prosecution. It is, they allege, a development that was spawned by the war on terror and that has distorted the Constitution.

Prosecutors, FBI agents, and the trial judge, on the other hand, have said the evidence supported the convictions. The war on terror, they and others in law enforcement contend, presents unique problems that sometimes require controversial investigative techniques.

"We can't afford to be wrong," said one law enforcement source who has worked as an investigator in several terrorism cases.

The rally will come just days after the Center for Human Rights and Global Justice, at the New York University School of Law, issued a report challenging what it alleges is the government's unfair targeting of Muslims in America.

"Targeted and Entrapped: Manufacturing the 'Homegrown Threat' in the United States" is a 76-page report that offers case studies of three terrorist investigations, including the Fort Dix Five.

While the report raises some of the same issues that the lawyers will present to the appellate court, it also includes a sympathetic look at the families affected by the prosecutions and raises questions about the way the investigations were conducted.

"Informants played a critical role in instigating and constructing the plots that were then prosecuted," according to the report, which also analyzed the so-called Newburgh (N.Y.) Four case and the prosecution of a suspected terrorist in Bay Ridge, N.Y. As did the Fort Dix Five case, both ended with convictions and long prison sentences.

"The government played a significant role in instigating and devising the three plots featured in this report - plots the government then 'foiled' and charged the defendants with," reads a summary of the analysis.

The role of the FBI and its paid informants was raised repeatedly by defense attorneys during the Fort Dix Five trial, but does not appear to be a central issue in the appeal.

Two informants, Egyptian-born Mahmoud Omar and Albanian national Besnik Bakalli, worked for the FBI during the investigation, recording hundreds of conversations with the defendants.

Attorneys argued that the informants had steered the conversations toward the plot to attack Fort Dix and, in fact, created a conspiracy when none existed.

Among other things, Omar arranged for two of the defendants to buy several assault rifles. The gun deal, set up through the FBI, ended with the defendants being arrested in May 2007.

The jury rejected the argument that the defendants had been entrapped and that the conspiracy had been a creation of the investigation.

The appeal arguments Monday will focus on several other issues raised during the trial.

Lawyers have again challenged the constitutionality of the Foreign Intelligence Surveillance Act of 2001, the legislation that was used to support many of the investigative tactics in the Fort Dix Five probe.

They also will argue that the jury was unduly prejudiced when U.S. District Judge Robert B. Kugler allowed the prosecution to introduce as evidence radical Muslim videos that depicted beheadings.

The defense argues that although the beheadings were not shown to the jury, the fact that the jurors knew they were part of the videos created a prejudice, particularly since the videos had nothing to do with the defendants.

Kugler, in allowing the videos, accepted the prosecution's argument that they had been viewed by the defendants and supported the government's position that the five had embraced Islamic radicalism and plotted to attack soldiers at Fort Dix as part of a jihad.

The defendants - Serdar Tatar, 28; Mohamad Shnewer, 26; and brothers Dritan Duka, 32; Shain, 31, and Eljvir, 28 - grew up in the Cherry Hill area after immigrating with their families to this country as small boys.

The Dukas, who are ethnic Albanians, and Shnewer, born in Jordan, were sentenced to life. Tatar, who was born in Turkey, was sentenced to 33 years in prison.

The five were convicted in December 2008 after a two-month trial.

The government charged that they had planned and trained for an attack on Fort Dix, that one defendant had made surveillance trips to the military base, that another had supplied a map to the complex, and that two of the Duka brothers had arranged to buy weapons that would be used in the attack.

In rejecting appeal motions by the defense, Kugler said: "This was the fairest trial this court could provide any defendant. There was overwhelming evidence from which the jury could find guilt."