Fri 12 Dec 2008Tactics and Cases: Muslim prosecutions in the USA in the post 9/11By Kathy Manley
, attorney for Yassin Aref
. See also Project SALAM
What follows are just a few examples of some of the techniques the government has used to unfairly convict and harass Muslims since 911 – there are many more such cases. All of the information below has been documented and sources can be provided. We are not claiming that every one of the defendants listed in the database
is innocent, but many of them are, and all of them have been the victims of unfair and often unconstitutional government tactics[/url]The use of secret evidence and secret court opinions:
The Classified Evidence Procedures Act (CIPA) was originally passed in the 1980’s to deal with the problem of graymail – where former government officials under indictment (such as in the Iran-Contra case) threatened to reveal classified evidence in order to derail their prosecutions. Now, however, CIPA is routinely used to allow the prosecution to control access to evidence, selected portions of which are shown to the judge in ex-parte meetings while the defense is locked out. Sometimes the evidence is shown to security cleared defense attorneys but they cannot share it with their clients, making it impossible to properly check out or use the information. Other times, even the security-cleared defense attorneys are not given access to the evidence. In at least one case, the classified evidence was even shown to the jury but not to the defense. All this represents a huge violation of the Sixth Amendment right to confront evidence. However, the federal courts have almost always gone along with the government in these cases.Yassin Aref/Mohammed Hossain
– There was a great deal of classified evidence provided to the trial judge and appeal judges, which the defense would have loved to challenge, but did not get to see, despite the lead attorneys having obtained security clearances. (The only time secret evidence was provided, early in the case, it showed that the government had “mistranslated” a common Kurdish word meaning “brother” as “commander” when it was found in a notebook next to Aref’’s name – the “error” resulted in both men being held without bail until the truth came out when the judge ordered the page provided to the defense. From then on, the defense was not provided with nearly any of the secret evidence.) The secret evidence was used to deny a motion to suppress – the entire court order was classified. The secret evidence also resulted in the denial of a Brady motion seeking exculpatory evidence. In addition, it led to the judge telling the jury that there were “good and valid” reasons for targeting Aref. The NYCLU moved to intervene in the case for public access to the evidence and both the ACLU and NYCLU filed amicus briefs in support of the defense. However, both convictions were upheld on appeal in July, 2008. In that opinion, the Second Circuit Court of Appeals (which was presented with secret briefs and a secret argument, none of which was shown to the defense) claimed for the first time that the “state secrets privilege” applied in a criminal case, something even the prosecution disputes.Ahmed Omar Abu Ali
– In his trial, classified evidence was actually shown to the jury via a technique called the “silent witness” rule. Yet this same evidence was not shown to the main defense attorney, Khurum Wahid. On appeal, in July, 2008, the 4th Circuit? Court of Appeals said that this was a “harmless error” and upheld the conviction, but said that perhaps the sentence should be increased. The use of “agent provocateurs”/ “informants”
who agitate in the Muslim community leading to the threat of conspiracy arrest for everyone who did not notify the FBI about the agent’s provocative conduct. These “informants” are either criminals spared long prison sentences and deportation for their help, and/or are paid large sums of money by the government. The informants often lie to their FBI handlers. Aref/Hossain
– The FBI used Shahed Hussain (Malik) a Pakistani immigrant under indictment for fraud, who was facing years in prison and deportation to Pakistan, where he was said to be suspected of murder. FBI Agent Tim Coll testified that Malik was chosen for the sting operation because he was good at being deceptive. Malik approached Mohammed Hossain, claiming to be a super-rich businessman who wanted to learn about Islam and help his Muslim brothers with loans and gifts. He flattered Mohammed and gave gifts to his children, insinuating himself into Mohammed’s life for months before he began recording his conversations. Then he offered him a loan of $50,000 and said he only had to pay back $45,000 – this was the FBI’s fictitious money-laundering scheme, as Malik was supposed to explain that he was laundering the money from the sale of a surface-to-air missile – this was not really explained. The conversations with Mohammed were in broken Urdu, and because of this, Malik was able to lie to his FBI handlers for months about what was said, claiming Mohammed had made many anti-American comments, when he really said that he was a good American citizen, working hard and teaching his children to live responsibly. Malik’s conversations with Aref (who was only brought in to witness the loan, as required in the Islamic tradition) were in broken English - which Aref barely spoke at the time – he did not understand a large part of what Malik said - and Malik spoke rapidly, changing subjects abruptly and throwing in key words (like “mizzaile” which he always mispronounced) into the middle of unrelated conversation. Aref never said anything to show he ever understood what Malik was talking about when he hinted about illegality. At trial, not only the defense but the judge and even the prosecutor became frustrated with Malik because of his slippery, evasive and dishonest answers. But Malik got what he wanted, being allowed to stay out of prison and remain in the United States.Syed Fahad Hashmi
– This case is still in the pre-trial stage. The US government has charged Fahad with allowing an old acquaintance — Junaid Babar — to stay in Fahad’s London apartment for about two weeks in 2005. Unbeknownst to Fahad, Babar was a paid government informant. During that two week period, Junaid Babar is alleged to have kept some raincoats, ponchos, and waterproof socks in luggage that Babar temporarily stored in Fahad’s apartment. The US government then alleges that at some point Babar gave the socks and ponchos to a high ranking member of al Qaeda. There is no allegation that Fahad is a member of al Qaeda or that he ever personally gave or helped to give anything to any member of al Qaeda. The case around Fahad boils down to an overzealous prosecution and testimony to be provided by Junaid Babar.
Junaid Babar has been used to testify against Muslims around the world. Nicknamed “Supergrass” by the British media, Babar was used by the UK government to testify against Omar Khyam and several other Muslim men in the so-called Fertilizer Case. During that trial, which by some accounts was the most expensive and lengthy trial in British history, it came to light that Junaid Babar met with FBI agents in 2004 and agreed to become a government cooperator. Babar had also been used in the Canadian prosecution of Momin Khwaja. Totally beholden to the US government because of a plea agreement in which he can receive years of imprisonment if he does not provide “substantial assistance,” Babar simply is not a credible witness.Shahawar Siraj
- Mr. Siraj is a 25 year-old Pakistani immigrant who was arrested in Queens NY days before the Republican National Convention in 2004 and held without bail. In May 2006, he was convicted on four counts of conspiracy, including the most serious, plotting to bomb a public transportation system. On Monday, January 8, 2007, Siraj was sentenced to 30 years in prison for plotting to bomb the Herald Square subway station in New York City. Attorneys for Siraj said he was entrapped by a paid police informant who “cajoled and inflamed” him to lure him into the conspiracy and that the informant was the one who pushed the bombing. Siraj had no explosives, no timetable for an attack and little understanding about explosives. His defense team also criticized the NYPD’s tactics of sending informers and undercover detectives into mosques to cast a wide net in search of radical Islamists.Liberty City Case
– From an article in the March, 2008 issue of “Mother Jones” magazine: “…The more details that emerged about the case, the fishier it looked. The charges had come about because of a 23-year-old Yemeni clerk named Abbas al-Saidi, who’d been a police informant since he was 16. The FBI helped bail him out when he was in jail facing charges of assaulting his girlfriend. A year later, Saidi returned the favor, telling the feds he’d met a young man—Narseal Batiste—who boasted of wanting to create an Islamic state in America.
The FBI hired Saidi to cozy up to Batiste and his followers, and sent in another informant (also charged with domestic abuse), Elie Assad, to pose as an Al Qaeda financier named “Mohammed.” Nearly everything Gonzales said the plotters “did” happened at the urging of the two informants, who reportedly earned about $120,000 from the feds for their help. (Assad, originally from Lebanon, was also granted political asylum.)
After Assad boasted of his Al Qaeda connections, Batiste talked of wanting to play a part, but only if Assad helped him first. Batiste gave the fake financier a long list of desired equipment, including “boots—knee high. Automatic hand pistols. Black security uniforms. Squad cars. SUV truck—black color.” (Not on the wish list: explosives.) Batiste also said he wanted $50,000, explaining in one taped conversation, “I’m exhausted financially. We have nothing.” Batiste’s lawyers would later argue that his promises of jihad were merely an attempt to scam “Mohammed” out of the money.
A few of the Seas of David men did recon the FBI field office in Miami. But the mission had been conceived by Assad, the van and a digital camera both provided by Assad—that is, the FBI.
When Assad failed to deliver the cash and with the Seas of David growing increasingly skeptical about his claims, he tried to assuage them by swearing them into Al Qaeda, which he did—in a warehouse rented and wired for video by the FBI.
The oath became the government’s piéce de rèsistance.”The use of staged press conferences and pre-trial publicity
that hype unfounded and sensational terrorist allegations in order to scare communities, damage the reputation and credibility of Muslims, and influence the jury pool. Often after the damage is done, the pre-trial terrorist hype of the prosecution is shown to be completely wrong, unwarranted or greatly overdone.
Aref/Hossain - When Aref and Hossain were arrested in August, 2004, there was a press conference in which it was breathlessly announced that a terrorist plot had been foiled, and terrorists in our midst had been caught. Governor Pataki, Albany Mayor Jerry Jennings and other politicians all took advantage of the opportunity to get in front of the camera and make some patriotic noise. Headlines blared the news all over the country, including a front page picture on the New York Post with the word “Commander” next to a picture of Mohammed Hossain. (This was based on the “mistranslation” where a word next to Aref’s name in a notebook was said to be “commander” but was really “brother.”) However, this was all so far from the truth that then even then Deputy Attorney General James Comey made a statement saying this was not “the case of the century” and did not involve any actual terrorist plot, but was only an FBI sting operation. This news did not carry so far. Dr. Rafil Dhafir
– When Dr. Dhafir was arrested along with others in February, 2003, then Attorney General John Ashcroft implied that Dhafir was a terrorist supporter, telling the national media that his prosecution was part of efforts to prevent funding for terrorism. Dr. Dhafir was also linked to Osama bin Laden because of his strict (but not terrorist) religious beliefs. In fact, prosecutors had absolutely no evidence of any connections to terrorism, and there were no terrorism-related charges. Brandon Mayfield
– When Portland, Oregon Muslim attorney Brandon Mayfield was detained in 2004 because the FBI claimed his fingerprint had been found on a bag linked to the Madrid train bombing, high level White House officials leaked prejudicial information to the media, but neglected to mention that Spanish authorities disputed the FBI’s conclusions about the fingerprint. The case was a national sensation, destroying Mayfield’s reputation and putting his life in danger in the local jail, where he was threatened. A few weeks later, the Spanish made the actual fingerprint match and Mayfield was exonerated.The use of strategies for intimidating juries
into believing that the defendants are real terrorists by excessive security, by insisting on anonymous witnesses and/or jurors, and by constantly referring in trials to “9/11” and to known terrorists such as “Osama bin Laden” even where these references are legally irrelevant to the charges. Lynne Stewart
– In the prosecution of attorney Lynne Stewart and her co-defendants, many of these techniques were used, with perhaps the most insidious being the use of an anonymous jury. Generally only used in the most notorious Mafia cases, this makes the jurors believe that the defendants are extremely dangerous people who would kill them if they only knew who they were. There were many related cloak-and-dagger tactics used, including bussing in the jurors to and from undisclosed locations, extensive security around the courthouse, etc. These measures are only supposed to be used when there is a concrete showing that there have been threats to the jurors or court personnel – no such threats were reported in this case, or in any of the other Muslim cases where these scare tactics have been used.
The prosecution showed the jury big pictures of Osama bin Laden over and over even though there was no relevance to the actual charges.
Aref/Hossain – Government translators testified using false, single names and disguises because the prosecution alleged – without any actual evidence – that they might be threatened. This made it impossible for the defense to investigate these “expert” witnesses, and they just had to take the government’s word for the witnesses’ credentials. (As discussed below, these translators were extremely biased toward the prosecution.)
The first witness called by the government was a missile expert who took the deactivated surface-to-air missile (SAM) the government had given Malik, and held it up to his shoulder to show the jury how it could be used to shoot down airplanes. The judge told him not to point it at the jury so he pointed it over their heads. This was allowed despite the fact that the FBI had introduced the SAM into the case, and despite the fact that it was undisputed that Aref had never seen it.
Prosecution “expert” Evan Kohlmann (see below) was allowed to testify about al Qaeda even though that had no connection to the case.
The security measures were also far greater than necessary, with snipers stationed on rooftops of buildings near the courthouse, local police on horses, as well as swarms of federal agents patrolling the area. Anyone wishing to attend to trial had to go through not one, but two metal detectors.Sabri Benkhala
– Even though it had nothing to do with his charges, the government showed films of Muslim suicide bombers in Chechnya to present an inflammatory picture of Muslims.
The use at trial of bogus experts who are not independent scholars, and who make a living by simply parroting the government’s theory in case after case.
One expert the government loves to use in terrorism cases is Evan Kohlmann. Known as the “Doogie Howser” of terrorism because of his young age, Kohlmann basically uses google to do his research. He speaks no foreign languages, has not traveled extensively in the Middle East, and has no advanced degrees in his field. But he does know how to memorize and pronounce middle eastern names, and how to sound like he knows what he’s talking about. Most importantly, he says what the government wants to hear. Petra Bartosiewicz wrote an article about him and some other experts in the 2/4/08 issue of The Nation Magazine, entitled “Experts in Terror
In the Aref/Hossain case, Kohlmann was brought in at the last minute when the previously scheduled expert witness, Rohan Gunaratna, apparently could not make it. The court adjourned the trial for a couple days and allowed the defense to depose Kohlmann in advance of his testimony. At the deposition, held on a Friday, Kohlmann was questioned about his knowledge of Bangladesh, as he was supposed to testify as an expert on JEI, a Bangladeshi group. Kohlmann did not even know the name of the Prime Minister of Bangladesh, and almost nothing about any of the political parties or other groups there. However, he went on the internet over the weekend, and by the time of his testimony on Monday, Kohlmann knew all those answers. This was an issue on appeal, and Judge Jacobs of the Second Circuit made a comment at oral argument about Kohlmann being an expert at using google. However, the appeal decision said nothing about this issue. Once someone like this is expected as an expert at one trial, other courts readily follow suit.List of US Cases where Evan Kohlman testified:
Portland 6? Case (Jeffrey Battle, Patrice Lumumba Ford etc)
Ali Asad Chandia
Emadeddine Muntasser Opposing, often successfully, attempts by the defense to introduce experts to explain the political and religious realities of the Muslim community
, while the government is allowed to present their own extremely distorted views in this regard.
Lynne StewartTranslators who are not independent
and give the most one sided pro-government translation of foreign words out of context.
Aref/Hossain – There were several government translators at the trial, including an Arabic translator, a Kurdish translator, and several Urdu translators. The translators chosen by the government were allowed to testify under assumed names and with disguises, which made it impossible for the defense to verify their credentials and investigate them, as normally occurs. The Arabic translator stated that “jihad” meant holy war, although that is only one (very prejudicial) meaning of the word, which roughly translates to the word “crusade” in English. The word means “struggle” in various forms, including an interior struggle to do the right thing, as well as various forms of exterior struggle.
The Kurdish translator chosen by the government resulted in some very interesting moments during the testimony of Mohammed Aziz, a Kurd who had barely survived Saddam Hussein’s gas attack on the City of Halabja, and who testified with an oxygen tank next to him. Mr. Aziz was very sympathetic to Yassin Aref, who he had met when Yassin was employed by the IMK in Damascus, Syria in 1999 (the IMK was a Kurdish group opposed to Saddam, which mainly helped Kurdish refugees who came through Syria on their between from Iraqi Kurdistan and Europe.) The FBI translator, however, had another agenda, and began embellishing the testimony in a way he believed would hurt Yassin. Mr. Aziz did not speak enough English to notice, and of course we did not speak a word of Kurdish. So the only one to notice was Yassin, who became very upset and told Terry (his main trial attorney) what was happening. There followed a side bar with the attorneys and the judge in which they discussed the possibility of recording the testimony to have it translated later. They ended up going forward, but there was a marked improvement in the translation after that point, and Mr. Aziz, though he was a prosecution witness, ended up helping Yassin. But not enough, given all the other unfair government maneuvers.
The Urdu translators were called to deal with the many recorded conversations between the informant (Malik) and Mohammed Hossain, which were mostly in Urdu, not Mohammed’s first language. Mohammed’s lawyer. Kevin Luibrand, challenged many of the government translations, hiring his own Urdu translator. The Court ended up appointing a referee to look at the two different translations, and in many cases the referee simply substituted the defense translations for those of the prosecution. In other cases the Court referee ended up testifying himself to various conversations. Holy Land case
– A government translator was prepared to testify that the common Arabic phrase “peace be with you” was actually somehow an expression of support for terrorism! Luckily the court eventually said this was too prejudicial. As of this writing, the jury in the re-trial of that case had been deliberating for 8 days. (The first case ended in a mistrial.) Charging defendants with lying to the government based on unrecorded interviews
, often conducted under extreme pressure, where it is essentially the agent’s word against the defendant’s.
The cases where this happened are many, including those of Sabri Benkhala, Yassin Aref and Sami Al-Arian
Aref – In Yassin’s case, the government showed up at his house on the night of August 4, 2004, taking him to the FBI Office, while other agents searched his home and the mosque, as well as Mohammed’s home. They questioned Yassin all night long, at times threatening him but making moves to punch him, yelling at him, and telling him he would never see his family again. They questioned him about everything connected to the sting operation, as well as other things from his life in Syria and Iraq. His honesty seemed to disconcert them, and they could get nothing they could use regarding the sting operation, because he was telling the truth when he said he did not know anything about the FBI plot. But they also said that he was a member of the IMK, which he denied, though stating truthfully that he did work for the organization in 1999. They also accused him of knowing Mullah Krekar “personally”Incarcerating Muslims in prisons designed to restrict their interaction with the outside world
and to restrict their religious practices while in prison. Also SAMS (Special Administrative Measures) can be even more restrictive.Communications Management Unit
(CMU) in Terre Haute, Indiana
This is a special prison unit made up almost exclusively of Muslims which started operating with a handful of inmates, including Dr. Dhafir, in December, 2007. Since then it has grown to hold approximately 47 men, with probably fewer than 5 non-Muslims. Unlike regular inmates, these men, even if they are considered “minimum security,” cannot have contact visits with anyone except their attorney, not even their wives and children. They must see their families through glass with only one telephone for the whole family to use to speak to their husband or father. They are limited to one 15 minute phone call each week. All correspondence must be read and censored at two different locations, often delaying letters for weeks or even months. Often letters simply disappear. They must write and speak in English unless they receive special permission to communicate in their native language, which may be the only language spoken by some family members.
One of Yassin Aref’s attorneys, Stephen Downs, drove Aref’s two young sons two days to see their father at the CMU in 2007, but they were kicked out quickly after the guards claimed Downs had an unauthorized “recording device” which consisted of an ordinary pen he was using to take notes.
CMU inmates are not allowed to participate in group prayer (except on Friday) and are not allowed to lead or participate in anything that can be construed as a religious class. So the men may get together to eat, play cards or basketball, etc, but if even two of them sit down together with a copy of the Qoran or other Islamic religious book, they will be written up for violating this rule. The ACLU is currently representing Enaam Arnaout in a possible challenge to this illegal and unconstitutional regulation.
We do not know the names of all the CMU inmates, but they include: Mukhtar Al-Bakri, Shafal Mosed, (both from the Lakawanna case); Ibrahim Ahmed Al-Hamdi, Sabri Benkahla, Seifullah Chapman, Masoud Ahmed Khan, Randall “Ismail” Royer (all from or related to the Virginia “paintball” case); Ahmed Ibrahim Bilal, Mohammed Ibrahim Bilal, Ali Khaled Steitiye (all from or related to the “Portland 7” case); Ahmed Al-Uqaily, Yassin Aref, Enaam Arnaout, Khalid Ahwan, Mahmud Brent, Rafil Dhafir, Hatem Fariz, Mohamad Yousef Hammoud, Mokhtar Haouari, Hamid Hayat, Kifah Jayyousi, Naji Khalil, Daniel Maldonado, and Shahawar Matin Siraj.Extensive surveillance, including illegal warrantless wiretapping
, to monitor targets and their associates, including their attorneys.Ali Al-Timimi
– His attorneys filed a post-conviction motion alleging that the NSA warrantless wiretapping program had been used to monitor him. The government refused to provide any information about this to the security-cleared defense attorneys or even to the local prosecutor. Finally, Judge Leonie Brinkema ruled that the relevant classified information must be provided to the prosecution and, finally, at least some material was shown to the defense. That dispute is still ongoing as of November, 2008.
Aref/Hossain – In December, 2005 the NYT broke the story of the NSA warrantless wiretapping program. The defense wrote letters to the prosecution requesting that they confirm or deny whether this program was used in the case. There was no response. Then, on January 17, 2006, the NYT published an article with interviews of government officials who, in an attempt at damage control, claimed that the NSA program was necessary and successful because it had resulted in the arrest of… Yassin Aref. At that point Aref’s attorneys filed a lengthy motion asking that all evidence in the case be suppressed as the “poisonous fruit” of the illegal surveillance which had clearly occurred. The motion stated, “The government engaged in illegal electronic surveillance of thousands of US persons, including Yassin Aref, then instigated a sting operation to attempt to entrap Mr. Aref into supporting a non-existent terrorist plot, then dared to claim that the illegal NSA operation was justified because it was the only way to catch Mr. Aref.” In March, 2006 the defense finally received a “response” to the motion from the government. Unfortunately, the actual response was entirely classified and none of the defense attorneys have ever seen it, even though lead attorneys Terry Kindlon and Kevin Luibrand subjected themselves to the cumbersome and invasive process of obtaining security clearances. A couple of hours later, while Yassin’s attorneys were frantically preparing a motion to get access to the response, and consulting with the NYCLU, where experts told them this was unheard of, they received a decision, saying that the motion was “DENIED, IN A CLASSIFIED ORDER.” This was even worse and the defense, as well as the NYCLU, was shocked. There followed the unusual step of a mandamus petition to the Second Circuit Court of Appeals in an attempt to challenge this egregious violation of the Fourth Amendment, FISA, and the Sixth Amendment right to confront evidence. But the Second Circuit said that this issue could not be dealt with at this time and the trial would have to go forward.
During trial some more evidence came out about the NSA program. During the cross-examination of FBI case agent Tim Cole, the defense asked whether Yassin was under 24 hour surveillance on a particular date during the sting operation. The prosecution asked for a sidebar away from the jury, and said that “if the agent were to answer truthfully it would implicate classified evidence.” Eventually the judge and the defense figured out what was going on, and, when the question was changed to “24 hour physical surveillance,” the agent could say “no” and classified evidence was not implicated. The obvious implication was that there was 24 hour nonphysical surveillance (ie warrantless wiretapping) which was classified. Several lessons can be learned from this: 1) the NSA program illegally monitored Yassin not only before the sting operation, but during it as well; 2) this was clearly 24 hour illegal surveillance of Mr. Aref in Albany, NY – thus, it was domestic surveillance, putting the lie to Administration claims that it only involved overseas conversations; 3) everything related to the program was classified – almost certainly because it was known to be illegal and the secrecy was intended to protect the guilty government officials. (In fact, the time period of the sting operation included March, 2004 – the time of the mad rush to the hospital bedside of the gravely ill Attorney General Ashcroft, who, despite pressure from Andrew Card and Alberto Gonzales, and a phone call from President Bush, refused, for a while, to recertify the legality of the program.) On appeal, all these arguments were made, and were denied, with no real explanation, after the appeals court received the classified evidence the defense has still never seen…Extremely complex or vague charges and legal instructions that confuse the jury.
The use of charges of “material support for terrorism” which the government has said can be used against anyone who donated to or did anything for a particular group, even if the donor had no knowledge that the group was considered terrorist by anyone
The excessive and inappropriate use of Conspiracy charges and the use of guilt by association
to smear those who have innocent contacts with known or suspected terrorists, and to link innocent people with each other in an alleged criminal association, using one against the other. The use of pending immigration applications to coerce Muslims into giving false testimony
against members of their community. http://www.dhafirtrial.net/2008/12/12/tactics-and-cases/