Photo from Project SALAM of Yassin Aref with his daughter during rare prison visit

Yassin Aref was convicted of terrorism charges that included conspiring to aid a terrorist group, providing support for a weapon of mass destruction, money-laundering and material support for a foreign terrorist organization after being arrested in an FBI sting operation in Albany, New York in 2006. He was sentenced to 15 years in prison in 2007. However, since conviction, he has vigorously fought to prove his innocence and recently new evidence uncovered through freedom of information filings suggests he was improperly identified as an Al Qaeda agent.

His defense attorney filed a petition seeking a new trial that indicates that Aref, a Kurdish immigrant and Muslim, “now asserts that during the trial and the appeal, the prosecution secretly gave false and highly prejudicial classified information ex parte, both to the District Court, and also on the appeal to the Second Circuit, which falsely claimed that Petitioner was actually an Al-Qaeda agent named Mohammed Yasin.”

“Ex parte” means the prosecutors presented secret evidence privately to judges, which Aref’s defense was not allowed to see or know about because it was considered highly classified and sensitive information.

“The prosecution knew or should have known that the information was false at the time that it made its ex parte submissions to the courts, and it has failed to disclose this error to the Courts and provide for dismissal of the charges or a new trial as the law would require,” the petition alleges.

His defense attorney goes on to argue that Aref was the “victim of the government’s desperate search – in 2002 and 2003 – for any connection between Iraqis and Al Qaeda, no matter how far fetched.”

Material that would have material to the guilt or innocence of Aref—”Brady material”—was not disclosed to the defense. For example, a confidential informant and key witness named Shahed “Malik” Hussain,” who had “repeatedly committed perjury in his bankruptcy proceeding between 2003 and 2006, was not disclosed to the defense. It also was not disclosed that he “lied about his perjury in bankruptcy proceedings” when he testified in the “Newburgh 4″ case.

There also was apparently a secret meeting on February 12, 2004, where the meaning of a “secret code word” was shared with Aref by Hussain. This code word was used in a later meeting on June 10, 2004, which led “directly to the only counts for which Aref was convicted.” The defense was led to believe that no transcript of the February 12 meeting existed, however, the defense no longer believes this to be the case.

Mohammed Yasin, according to the defense filing, was apparently an individual in Pakistan, who trained Mohammed Sidique Khan, a lead attacker in the bomb plot in London in July 2005. At the time, Aref was in Albany and had no “green card, passport or traveling documents” or “any way to get to Pakistan.” He “could not be the master bomb maker Mohammed Yasin.” By the end of the trial in October 2006, “the prosecution must have known, or should have known by the end of the trial in October 2006 ” that Aref was not “Mohammed Yasin, an Al Qaeda agent.” Yet, this is what was claimed in the US District Court for the Northern District of New York and to the Second Circuit Court of Appeals.

The likelihood that Aref was falsely identified takes on additional significance when one considers how he has been imprisoned in a facility in Terre Haute, Indiana, known as “Little Gitmo” or a Communications Management Unit (CMU). It is a facility that, as New York Magazine noted, was “quietly opened by the Bush administration in December 2006 to contain inmates with links, in particular, to ­’terrorist-related activity.’” [For excellent background on Aref’s case and imprisonment, read the New York Magazine article published on July 10, 2011.

Inmates are subjected to restrictive conditions:

To gather intelligence from CMU inmates, correspondence is combed through by a counterterrorism unit in West ­Virginia. Regular group prayer is prohibited, and communications must be in English unless there’s a live translator. Phone calls are limited to two fifteen-minute conversations a week (most maximum-­security prisoners get 300 minutes a month). Immediate families of CMU inmates can visit only twice a month for a total of eight hours (general-population prisoners at Terre Haute get up to 49 hours of visits a month), and those conversations are monitored, recorded, and conducted through Plexiglas. Physical contact is forbidden, a permanent ban not imposed on most violent felons in maximum-security prisons.

As a result, critics say, those familiar markers—family, language, and religious identity—are being stripped away. “This is more than just being cut off from the world,” says Nina Thomas, a psychologist-psychoanalyst at NYU who has studied the CMUs. “Inmates are being shut into a very narrow universe.”

To be treated like this in confinement because of a conviction on terrorism charges based off secret evidence that was false would seem like one of the worst civil liberties violations a government could commit.

Consider what his attorney writes in the petition: Aref was “convicted in the secret case wrapped up inside the public sting. In the secret case he was accused and falsely convicted of being an AlQaeda agent. He was never told about this secret case or given any opportunity to defend himself. Even today he has to learn about this secret case from crumbs of information that fall from the judicial table.”

The filing concludes that the court should confirm if submissions were ever made where the government “took the position” that Aref was Mohammed Yasin or “an Al Qaeda terrorist.” If the government did, that would be a “knowingly false” statement requiring a “new trial or dismissal of the charges given the weakness of the case.”

Mohammed Hossain, a Bangladeshi Muslim who owned the Albany New York pizza parlor and was also the founder of the Masji As-Salam mosque in Albany, was convicted along with Aref and is also serving a 15-year sentence in prison for terrorism offenses. With this new information, Hossain is apparently hoping to mount a challenge to his conviction as well.

Aref’s case has gained notoriety as a case of preemptive prosecution. John Mueller, author of Terrorism Since 9/11: The American Cases, wrote, “Unlike other cases where entrapment has been alleged, the defendants in this case never expressed any intent of engaging in terrorist activities. On multiple occasions, Aref and Hossain criticized involvement with terrorist groups and in terrorist plots…… It is not clear whether this is actually a terrorism case at all.”

The development has given renewed energy to Aref’s supporters. They launched a “Journey for Justice” on July 12, a walk from Albany to Binghamton, New York, to deliver a petition with signatures to the judge asking for the case to be reconsidered.

To view copies of the latest defense filings in Aref’s case and some of the evidence uncovered through a freedom of information request, go here.