But cathinone is unstable and known to deteriorate rapidly after khat is harvested, often within 48 hours. Appellate courts have said that transporting khat itself is not a violation unless the government can prove that the khat actually contains either of the controlled substances. In court papers, prosecutors have emphasized that the conspiracy took pains to rapidly import fresh khat once it was harvested because the conspirators knew that fresh khat was prized by users for providing a superior effect. But defense lawyers have challenged the government's evidence as insufficient.
"The government must produce evidence of cathinone and not attempt to confuse and confound the jury by treating 'khat' and 'cathinone' as synonyms," wrote defense lawyer Bruce Cooper, representing defendant Harun Salhan. More broadly, defense lawyers and family members of the accused have complained privately that the government's pursuit of the case is excessive and targets low-level users for whom use of khat is culturally acceptable. And some question whether khat use is a serious problem. In court papers, one defense lawyer presented medical evidence that khat use is no more dangerous than an energy drink.
Defense lawyers say the investigation began out of concerns that proceeds from the khat trade were funding terrorist groups in Yemen or Somalia, but no evidence of that has turned up in court. Most of the defendants are naturalized U.S. citizens who come from those two countries. One of the defendants who pleaded guilty met with agents from Scotland Yard and was helpful in providing information in Britain's investigation of the khat trade's connection to international terrorism, according to court papers. But that defendant was never connected in any way to terrorist groups.
Prosecutors, wary that the defense would make khat use appear to be innocuous, successfully sought a ban from the outset of trial on any arguments or evidence from the defense that khat use is culturally acceptable in Somali or Yemeni culture, or that khat use is not as bad as other drugs. "Encouraging jurors to decide according to their prejudices or consciences would be negating the rule of law in favor of the rule of lawlessness," prosecutor Mary Daly wrote.
With 13 defendants, the trial is proving to be a logistical challenge. U.S. District Judge T.S. Ellis III, whose courtroom is jammed with defendants and their lawyers, said he could not recall a case in more than 25 years that had anywhere close to 13 defendants being tried simultaneously. Simultaneous translations into Somali and Arabic are required, and relatively simple tasks like choosing a jury are taking longer than normal.
Even if the government obtains convictions, it is unclear whether any of the defendants would receive any significant prison time. The two ringleaders who pleaded guilty each received prison terms of less than three years. In 2006, the Justice Department brought charges on an even larger scale against what they said was a khat ring that operated in New York, Washington state and elsewhere. The case, dubbed "Operation Somalia Express," with roughly half of the more than 44 defendants obtained acquittals or dismissals. Many of those convicted received only a few months in jail.