Pre-Emptive Prosecutions - Forum Explores Provocation to Get Terrorism Convictions

On March 25, 2010, a forum at NYU School of Law explored the role of agents provocateurs in several high-profile terrorism cases. Powerful testimony from the families and lawyers for defendants in several cases, raised an important question about each of the cases: would there have been a criminal act or plan if the FBI had not paid agent provocateurs to become involved? Was the FBI involved in capturing "homegrown terrorists" or were they making them?

Fran Korotzer, writing for Neft Left News, covered the forum, which was organized by the National Lawyers Guild, NYU Law ACLU, Middle Easter Law Students Association, and Law Students for Human Rights. According to Korotzer,

Many of those entrapped are very low income, under-educated men who live in marginalized communities and are ‘bribed’ with money, marijuana, and promises of help for whatever crisis they are facing. These cases are not isolated, they’re happening in large numbers all over the country. The people involved are from diverse backgrounds but they are united by abuses of due process.

Newburgh, New York - FBI informant targets schizophrenic

The first speakers were the mother and aunt of David McWilliams, one of the Newburgh 4, the young Muslim men were convicted of attempting to bomb synagogues with plastic explosives in the Bronx and plotting to shoot down planes from Stewart Airport with stinger missiles.

David McWilliams' mother, Elizabeth, said that her son was not the monster he was made out to be. According to Korotzer, Elizabeth explained the David was

promised money to help pay for medical treatment for his younger brother who is suffering with incurable cancer. Tears were flowing down her cheeks as she tried to speak. When his aunt, Alicia McWilliams spoke she presented a picture of a group of struggling, uneducated men trying to survive on the periphery of society. They had drug problems and one was schizophrenic. The FBI picked the most vulnerable county to establish their plot, one where there is “no jobs, no schooling” and “if you walk down Broadway you see it is drug infested.” “They didn’t send an agent to a mosque in Bushwick or Harlem because they would nave whooped his mother_ _.” Instead they’re “gonna pick some God damn fools and a person who can’t manage mental health.” According to McWilliams, those individuals couldn’t mastermind anything. These are who they chose to shoot missiles at planes and bomb synagogues in Riverdale? They never heard of Riverdale. “The boy is dyslexic.” “This boy is a petty crack dealer.” How did he go from that “to become a big national terrorist? He ain’t never even left New York.” He thought that the agent that entrapped him was “a good Muslim brother” who was going to get him a job and help pay doctor bills. McWilliams also pointed out that no family members were interrogated by the police or the FBI adding, they “didn’t need us when they had their own script.” She said that the families and communities that had been targeted had to stand together and let the government know that they “cannot target our families and drop a load of shit on us!”

The Department of Justice recently alluded to the Newburgh 4 case in its Final Report on the Suspicious Activity Reporting Initiative (download here). The Bureau of Justice Assistance wrote:

An example of the success of the program is a report of suspicious activity that was provided by a business that was a recipient of the training:

In May of 2009, an employee noticed something unusual while working at a

self-storage facility. A group of suspicious-looking men had begun to meet

around an outdoor storage unit. They aroused suspicion because they met

frequently—as much as 20 or 30 times in the span of a few days. They were

also very careful to conceal their property by backing their SUV right up to the

storage unit door. The self-storage facility had been visited by local law

enforcement in the past and had been provided information on indicators and

warnings of suspicious activity as part of the New York State’s Operation

Safeguard outreach program.

The employee contacted the local police department to report the suspicious

activity observed. He also provided them with information on the vehicle and

renter. The police department ran checks and found that the New York FBI

Joint Terrorism Task Force (JTTF) had an active investigation and the

individuals associated with the storage unit were currently under surveillance.

Two weeks after the employee’s report, the New York JTTF arrested four men

on a number of terrorism charges, including charges arising from a plot to

detonate explosives near a synagogue and to shoot military planes with

Stinger surface-to-air guided missiles. The employee’s information

demonstrated the effectiveness of the Operation Safeguard efforts to

help prevent terrorist attacks in New York State.

(Final Report, ISE-SAR EE, p. 69). In the example above, the DOJ cites a report of suspicious activity that likely involved its own paid informant. Thus, not only does the government use these prosecutions to stir up fear of "homegrown extremism," but they are used to justify broadening domestic surveillance programs.

Fort Dix - Two Provocateurs with Records

Writes Korotzer,

The next speakers were 12 year old Leijla Duka, daughter of one of the Ft. Dix 5 (NJ) and her uncle, the youngest of the Duka brothers. The Ft. Dix 5 were convicted of conspiring to attack military personnel at Ft. Dix and kill as many as possible. Leijla and her uncle said that their family members were set-up by 2 Muslim agent provocateurs, Mahmoud Omar and Besnik Bakalli.

Both men had been convicted of serious crimes and were willing to act as agents in return for leniency and money. It all started, they explained, with a family vacation in the Poconos when a family member made a video recording of the young men on a shooting range, shooting and shouting “Allahu Akbar”, God is great. After the vacation the recording was brought to a Circuit City store to be duplicated so that everyone involved could have a copy. The clerk was suspicious when he viewed the video and notified the police who contacted the FBI.

[The FBI] sent in Omar who approached one of the men, befriended him, and convinced him to download terrorist videos. All of the videos watched were at the agent’s request and then he tried to persuade him to involve his friends, the other 4.

When [Omar] didn’t do so the other agent, Bakalli, an ethnic Albanian like the Dukas was brought in. The agents told the men that their Muslim brothers were being murdered overseas and that they should be ashamed of themselves because they were doing nothing to help them. A lot of money was being flashed around by the agents and weapons were offered for sale. Some of the men bought weapons so, they said, they wouldn’t have to wait to shoot at the shooting range. One, who worked at a pizza shop, showed the agent a map of Ft. Dix (used for pizza delivery) when the agent asked for one. Duka said that for a conspiracy case 2 or more defendants have to agree to a plot involving someplace or someone. That never happened in this case. The government admitted that there was no evidence that the defendants ever discussed the plot with each other. All 5 were arrested and at trial the judge said that millions had been spent on the case and “the lack of evidence doesn’t concern me.” Duka also explained that all of the jury members were either in the army or had family members in the army. Since they were personally involved in some way they should have been excluded. The prosecution showed frightening jihad films. All were convicted with some getting sentences of life plus 30 years.

Project Salam

Next, the forum heard from three lawyers: Lynne Jackson from Project Salam, Support and Legal Advocacy for Muslims (www.projectsalam.org), and Kathy Manley and Steve Downs who defended Yassin Aref and Mohammed Hossain from Albany, NY.

According to Korotzer's report,

The agent provocateur in that case was the same person that was involved in the Newburgh 4 case, but using a different name this time. He was facing a prison sentence for selling fake drivers licenses, there was 25 civil suits pending against him, and there was the possibility of him being deported to Pakistan where it is believed that he was wanted for murder. The FBI was primarily interested in Yassin Aref, a local imam who spoke against the war and for Palestinian rights. Mohammad Hossain was collateral damage.

The plot, as it was explained, was to get the men involved in purchasing a surface to air missile with money laundered through Hossain’s pizza business. That would be used to shoot down a plane with the Pakistani UN ambassador on it. Hossain needed a loan which was offered by the agent, and Aref, the imam, was asked to witness the loan, as is a Muslim custom.

The money used for the $5,000 loan supposedly came from money that was earned by selling weapons to terrorists. There is no evidence that the men, especially Aref, knew anything about where the money came from or of the missile plot, but the fact of Aref witnessing the loan tied him to terrorists. Both were arrested, convicted, and got 15 year prison sentences.

This case was also recently portrayed in a documentary film called Waiting for Mercy, selected for best documentary at the Ballston Spa Film Festival. (see trailer)

Other speakers at the forum provided powerful testimony on the Holy Land Foundation case and the use of secret evidence in the case of Fahad Hashmi. These stories challenge conventional wisdom and propaganda surrounding many terrorism prosecutions.

In their totality, they raise important questions about pre-emptive policing - the notion that the law enforcement should intervene in Americans' affairs before a criminal act occurs. While these cases demonstrate that people can be enticed to commit or plan illegal acts, such an approach can have devastating consequences for the communities who feel they have been targeted by the government. Ultimately, "pre-emption" erodes mutual trust and undermines security.

Muslims Feel Targeted by FBI, Question Contact on Campus

According to students at the University of Texas-Dallas, agents from the Federal Bureau of Investigation approached them on campus and at work to inquire about their beliefs and affiliations. Without a reasonable suspicion that individuals were involved in illegal activity, such tracking is not only unconstitutional, but ultimately counterproductive.

In an April 11, 2010 article in the UTD Mercury, political science senior Boma Danesh describes how FBI agents questioned him, asking him to identity radical UTD students, radical preachers, and asking him about his political views. Danesh is a member of Muslim Students for Justice, an off-campus group that hosts pro-Palestine and Malcolm X-influenced events. The FBI denied investigating anyone solely for First Amendment activities not because of their ethnicity, nationality or religious affiliation. Nevertheless, other Muslim students expressed the feeling that they were targeted based on their religion.

Although the FBI repeatedly stresses its desire to build positive, strong relationships with Muslim and Arab-American communities, singling out Muslim students on campus for questioning sends a different message.

In related news, a University of Michigan study published in the American Journal of Public Health in February 2010 found that one quarter of Detroit-area Arab Americans reported personal or familial abuse because of race, ethnicity, or religion since 9/11, leading to higher odds of adverse health effects. According to the study, entitled "Association of Perceived Abuse and Discrimination after Sept. 11, 2001 with Psychological Distress," the American Muslim population is estimated at approximately 5.4 million people, consisting of African Americans, South Asians, and Arabs. In addition, up to 2.5 million non-Muslim Arabs reside in the United States. The Federal Bureau of Investigation found a 1600% increase in hate crimes directed against these populations in the year after the events of September 11. According to the researchers,

given that perceived discrimination is strongly tied to mental health outcomes and that mental health often predicts happiness in Arab populations, these findings provide the strongest indication of the negative impact of perceived post-September 11 abuse and discrimination on respondents' well-being.

Adverse health effects are just one negative outcome of discrimination and abuse. A recent study by Political Research Associates (Platform for Prejudice) examines how the new nationwide "suspicious activity reporting initiative" invites racial or religious profiling and erodes community trust and safety. This report builds on prior reports by the American Immigration Policy Institute (download here) and the ACLU and Rights Working Group (download here) about the persistence of racial profiling and its deleterious impacts on American communities.

TIPS Reduce: LAPD to expand iWatch Program

The Los Angeles Police Department encourages the public to spy on neighbors and file suspicious activity reports about innocent (non-criminal) activities that seem out of place through its "iWatch" program. A new report by Political Research Associates explains how such programs practically invite racial, ethnic, and religious profiling that not only harms individuals who get singled out, but is ultimately counter-productive in terms of combatting terrorism. This program violates existing rules on domestic intelligence collection because tips need not relate to a crime, but can be something that "raises suspicion."

In a recent article in Emergency Management, public information director for the LAPD Mary Grady discusses how the iWatch program will be expanded in April 2010 by translating literature and public service announcements into Spanish, Korean, Vietnamese, and Mandarin. According to Grady, the iWatch program has generated several dozen reports from the public so far. It is unclear whether individuals named in such reports are adequately protected from false reports.

Neighbors as Spies: Public Reporting Through iWATCH

iWATCH, a civilian program launched by the LAPD in October 2009, supplements LAPD Special Order No. 11, which orders police officers to report suspicious behaviors that might be indicative of terrorism, including "taking pictures with no aesthetic value."

“Law enforcement cannot be everywhere and see everything,” notes the LAPD’s blog, “iWATCH adds another tool to assist an agency’s predictive and analytical capability by educating community members about specific behaviors and activities that they should report.”

iWATCH was developed under the direction of LAPD Commander McNamara, and can be used in any community anywhere in the United States. Miami and Boston have similar See Something, Say Something campaigns. iWATCH lists nine types of suspicious behavior the public should look for, assuring tipsters, “this service is truly anonymous.” William Bratton described iWATCH as “the 21st century version of Neighborhood Watch.” In an NPR interview, Bratton provided this rationale:

Any street cop will tell you that crime prevention occurs best at the local level and terrorist-related crime prevention is no different. The problem has always been that individuals have varying thresholds at which they feel compelled to notify authorities when the activity is not overtly terrorist related. The iWATCH program is a giant leap toward overcoming this problem and literally provides millions of new eyes and ears in the terrorism prevention effort.

iWATCH, then, encourages the public to file a report even if people are not convinced that witnessed behavior is criminal. “Let the experts decide,” cajoles a Public Service Announcement.

In this interview, Former Chief Bratton appeared dismissive of concerns that iWATCH would invite racial profiling, saying, “No, I think we’re a more mature society than that.” (query: was the LAPD Rampart Division simple being immature when it generated one of the largest scandals involving documented police misconduct, including convictions of police officers for unprovoked shootings and beatings, planting of evidence, framing suspects, perjury, and subsequent cover-ups in the late 1990s?)

iWATCH is disturbingly similar to the controversial TIPS (Terrorist Information and Prevention System), an initiative created by the Bush administration to recruit one million volunteers in 10 cities across the country. TIPS encouraged volunteers to report suspicious activity that might be terrorism-related. TIPS came under intense criticism by various news media outlets in July 2002 for providing the United States with a higher percentage of citizen spies. According to an editorial in the Washington Post:

Americans should not be subjecting themselves to law enforcement scrutiny merely by having cable lines installed, mail delivered or meters read. Police cannot routinely enter people’s houses without either permission or a warrant. They should not be using utility workers to conduct surveillance they could not lawfully conduct themselves.

TIPS was officially canceled in 2002 when Congress enacted the Homeland Security Act. However, iWATCH seems to be virtually identical to the failed TIPS program. Residents and store owners should report incidents that demonstrate reasonable suspicion of criminal activity, such as purchasing large amounts of explosive chemicals. But the language of iWatch -- encouraging untrained people to report vague occurrences that "just don't seem right" -- deserves to meet the same fate as TIPS.