Cover of Human Rights Watch/Columbia Law School report

Human Rights Watch and the Columbia Law School have released a comprehensive report challenging the government’s use of sting operations and other tactics in terrorism prosecutions. It particularly highlighted twenty-seven cases from when the cases were initiated to sentencing and post-conviction, including confinement conditions.

The report comes just over a month after a mostly ignored study by lawyers, who have represented and supported victims of the kinds of tactics described by HRW and the Columbia Law School. The National Coalition to Protect Civil Freedoms (NCPCF) and Project Support and Legal Advocacy for Muslims (Project SALAM) examined ”preemptive prosecutions” in their study called, “Inventing Terrorists: The Lawfare of Preemptive Prosecution.”

Preemptive prosecution was defined in the study as “a law enforcement strategy, adopted after 9/11, to target and prosecute individuals or organizations whose beliefs, ideology, or religious affiliations raise security concerns for the government.” And, even though HRW and Columbia Law School do not use this term in their report or specifically emphasize the preemptive nature of law enforcement operations, this is really what is behind the abuses that are being detailed in the report.

Additionally, in 2011, the Center for Human Rights and Global Justice (CHRGJ) at New York University School of Law published a strong report on the targeting of Muslim communities called “Targeted and Entrapped: Manufacturing the ‘Homegrown Threat’ in the United States.” It argued the “government’s use of intrusive surveillance, untrained paid informants and manufactured terrorism plots raises serious human rights concerns that must immediately be addressed.”

So, this latest report on preemptive prosecutions is not necessarily what one can call groundbreaking, but it does compile some significant information about the tactics of the federal government that receives far too little scrutiny.

The report calls attention to how the Justice Department has used “material support for terrorism” charges, which punishes behavior that often does not “demonstrate intent to support terrorism.” It details instances where prejudicial evidence was introduced that was obtained through “coercion” or torture or submitted a court as secret evidence, which defense lawyers could not access.

Subjecting terrorism suspects to solitary confinement or other abusive conditions in prison, especially when they are still in the pretrial phase of their case, is detailed as well.

The release of the report coincides with the premiere of a documentary on HBO on July 21 called The Newburgh Sting. This film tells the story of the Newburgh Four, who were subjected to preemptive prosecution and targeted by an FBI informant named Shahed Hussain. (It was actually described in more detail in the CHRGJ report, as those who worked on the report interviewed family of the Newburgh Four.)

The HRW & Columbia Law School report [PDF] points out Hussain “came up with a plot to detonate explosives near a synagogue in the Bronx and to shoot military targets at Stewart Air National Guard Base in Newburgh, New York.” Hussain played the “primary role in preparing the plot and inducing action (including through the offer of substantial financial rewards) by the defendants.”

James Cromitie, one of the Newburgh Four, was not able to purchase gun, despite the fact that Hussain tried over a dozen times to get him to buy one. Hussain picked the targets. He came up with the plot. He directed who was recruited for the plot. He drove those involved in the plot from place to place so they would do the reconnaissance work needed to prepare for an attack.

Judge Colleen McMahon said of this case:

The essence of what occurred here is that a government, understandably zealous to protect its citizens from terrorism, came upon a man both bigoted and suggestible, one who was incapable of committing an act of terrorism on his own.… I suspect that real terrorists would not have bothered themselves with a person who was so utterly inept. … Only the government could have made a terrorist out of Mr. Cromitie, whose buffoonery is positively Shakespearean in scope.

But McMahon sentenced each of the Newburgh Four to 25 years in prison, which demonstrates how easy it is for the Justice Department to bring these kinds of cases.

The report highlights the cases of Shawahar Matin Siraj, who was targeted by an NYPD informant, the Fort Dix Five, Rezwan Ferdaus, Yassin Aref, Mohammed Hussain, Adel Daoud, Hosam Smadi, the Portland Seven, Barry Bujol and Adnan Mirza.

For example, the case of Adnan Mirza is exceptionally disturbing. Mirza lived in Houston and had a history of helping the Houston Police Department with “cultural sensitivity training” on Islam. But, in 2004, Customs and Border Patrol officials stopped two of Mirza’s friends while they were driving in Big Bend National Park and discovered weapons.

According to the report, the FBI interviewed the friends, including Jim Coates, who had “worked with Mirza on the ‘Why Islam’ campaign that sought to educate people about Islam to reduce negative stereotypes and perceptions.” Coates decided to become a paid FBI informant.

In 2005:

…the government introduced an undercover agent named “Malik Mohammed” to the group of Coates, Mirza, and co-defendant Kobie Williams. Mohammed posed as someone with a military background who specialized in teaching hand-to-hand combat. The group regularly went to a camping area in Willis, Texas, where they barbecued, shot at a shooting range, and engaged in discussions on a variety of topics, ranging from women to group travel to Afghanistan. Based largely on their conversation, the prosecution in the case against Mirza alleged that these were “training camps” to prepare Mirza and his friends to go to Afghanistan and fight against US forces…

Conduct that white Americans, including right wing militia-types, can engage in without fear of prosecution became the substance of a terrorism prosecution. On top of that, the shooting and “military training” sessions were encouraged by FBI agents.

David Adler, Mirza’s lawyer, told Human Rights Watch conversation between the men seemed “similar to rednecks sitting around talking about the IRS.” Nevertheless, Mirza was charged with “eight counts of weapons charges” and “one count of conspiracy to provide material support.” He was alleged to be the “ringleader,” someone who collected $1000 provided by FBI agents with the intent to send the money to families of Taliban fighters.

Even though an FBI agent “admitted that Mirza never made a recorded statement about wanting the money to go to the Taliban” and there were recorded statements that showed, in fact, the money was for a hospital or families in Pakistan, he was found guilty by a jury. And even though there was no evidence that Mirza ever wanted to “practice shooting before the FBI informant came up with the idea,” he was found guilty of all of the eight weapons charges and sentenced to 15 years in prison.

There is a lot in the report that contributes to how the public should understand “material support for terrorism” charges. In fact, “the largest share of convictions in terrorism-related cases since September 11 is based on material support charges.”

In 2010, the Supreme Court in the Holder v. Humanitarian Law Project case upheld the expansion of material support law in the USA PATRIOT Act. The law had expanded “material support” to include “expert advice or assistance” to a designated foreign terrorist organization. Groups had argued this made it possible for peace and human rights organizations to be criminalized.

Before the September 11th attacks, material support laws had been used to prosecuted individuals a total of six times. But, after the law was expanded under the PATRIOT Act, 168 out of 917 terrorism-related cases have now involved convictions on “material support for terrorism” charges.

One key example is the case of Palestinian-American Dr. Sami al-Arian. The federal government dropped charges against Al-Arian last month, but for nearly twenty years Al-Arian was the target of the federal government simply because of his political speech and outspoken defense of Palestinians. (For more on his case, see here.)

The prosecution of Holy Land Foundation members is another high-profile material support case mentioned in the report. The FBI received a tip in 1993 from Israeli interrogators who tortured Mohammed Salah, which suggested that the Holy Land Foundation’s charitable contributions were assisting Hamas. The FBI targeted this activity before Hamas was designated a foreign terrorist organization in 1997.

The report explains, “Defendants from one of the largest Muslim charities were not “accused of directly funding terrorist organizations or terrorist attacks.” The argument was the following:

…HLF provided funds to Palestinian charities; the charities implemented Hamas’ social programs, the social programs helped win the “hearts and minds” of the Palestinian people, and that support enabled Hamas’ military wing to carry out terrorist attacks. Former US Consul-General in Jerusalem Ed Abington called this the “house of cards”
theory of Hamas financing…

Holy Land Foundation members’ first trial resulted in a hung jury. In a second trial, they were all convicted. When defendants tried to take this case to the Supreme Court, the Supreme Court denied their appeal.

There are several cases detailed in the report that have received little to no attention and most of the public has probably never heard of these people. If they remember them at all, it is because they saw Attorney General John Ashcroft or Attorney General Alberto Gonzales stride out in front of the cameras to give press conferences where they boasted about the FBI’s work catching some of these men.

Of course, as the report shows, very few of these terrorism-related cases involve people who actually ever intended to commit terrorism before the FBI targeted them. Only after they became targets and interact with informants did they begin to develop into the “terrorists,” which Justice Department prosecutors want the public to believe would have committed heinous acts if the government had not “stopped” them.