Spencer Ackerman / The Guardian & Human Rights Watch – 2014-07-25 01:26:35
Human Rights Watch
(July 21, 2014) — The US Justice Department and the Federal Bureau of Investigation (FBI) have targeted American Muslims in abusive counterterrorism “sting operations” based on religious and ethnic identity. Many of the more than 500 terrorism-related cases prosecuted in US federal courts since September 11, 2001 have alienated the very communities that can help prevent terrorist crimes.
Government Agents ‘Directly Involved’
In Most High-profile US Terror Plots
Spencer Ackerman / The Guardian
New York (July 21, 2014) — Nearly all of the highest-profile domestic terrorism plots in the United States since 9/11 featured the “direct involvement” of government agents or informants, a new report says.
Some of the controversial “sting” operations “were proposed or led by informants”, bordering on entrapment by law enforcement. Yet the courtroom obstacles to proving entrapment are significant, one of the reasons the stings persist.
The lengthy report, released on Monday by Human Rights Watch, raises questions about the US criminal justice system’s ability to respect civil rights and due process in post-9/11 terrorism cases. It portrays a system that features not just the sting operations but secret evidence, anonymous juries, extensive pretrial detentions and convictions significantly removed from actual plots.
“In some cases the FBI may have created terrorists out of law-abiding individuals by suggesting the idea of taking terrorist action or encouraging the target to act,” the report alleges.
Out of the 494 cases related to terrorism the US has tried since 9/11, the plurality of convictions — 18% overall — are not for thwarted plots but for “material support” charges, a broad category expanded further by the 2001 Patriot Act that permits prosecutors to pursue charges with tenuous connections to a terrorist act or group.
In one such incident, the initial basis for a material-support case alleging a man provided “military gear” to al-Qaida turned out to be waterproof socks in his luggage.
Several cases featured years-long solitary confinement for accused terrorists before their trials. Some defendants displayed signs of mental incapacity. Jurors for the 2007 plot to attack the Fort Dix army base, itself influenced by government informants, were anonymous, limiting defense counsel’s ability to screen out bias.
Human Rights Watch’s findings call into question the post-9/11 shift taken by the FBI and other law enforcement agencies toward stopping terrorist plots before they occur. While the vast majority of counterterrorism tactics involved are legally authorized, particularly after Congress and successive administrations relaxed restrictions on law enforcement and intelligence agencies for counterterrorism, they suggest that the government’s zeal to protect Americans has in some cases morphed into manufacturing threats.
The report focuses primarily on 27 cases and accordingly stops short of drawing systemic conclusions. It also finds several trials and convictions for “deliberate attempts at terrorism or terrorism financing” that it does not challenge.
The four high-profile domestic plots it found free of government involvement were the 2013 Boston Marathon bombing; Najibullah Zazi’s 2009 plot to bomb the New York subway; the attempted Times Square carbombing of 2010; and the 2002 shooting at Los Angeles International Airport’s El Al counter.
But the report is a rare attempt at a critical overview of a system often touted by the Obama administration and civil libertarian groups as a rigorous, capable and just alternative to the military tribunals and indefinite detention advocated by conservative critics. It comes as new pressure mounts on a variety of counterterrorism practices, from the courtroom use of warrantless surveillance to the no-fly list and law enforcement’s “suspicious activity reports” database.
In particular, Human Rights Watch examines the extent and impact of law enforcement’s use of terrorism informants, who can both steer people into attempted acts of violence and chill religious or civic behaviour in the communities they penetrate.
Linda Sarsour, the executive director of the Arab American Association of New York, a social services agency, told the Guardian she almost has a “radar for informants” sent to infiltrate her Brooklyn community.
While the FBI has long relied on confidential informants to alert them to criminal activity, for terrorism cases informants insert themselves into Muslim mosques, businesses and community gatherings and can cajole people toward a plot “who perhaps would never have participated in a terrorist act on their own initiative”, the study found.
Many trade information for cash. The FBI in 2008 estimated it had 15,000 paid informants. About 30% of post-9/11 terrorism cases are considered sting operations in which informants played an “active role” in incubating plots leading to arrest, according to studies cited in the Human Rights Watch report. Among those roles are making comments “that appeared designed to inflame the targets” on “politically sensitive” subjects, and pushing operations forward if a target’s “opinions were deemed sufficiently troubling”.
Entrapment, the subject of much FBI criticism over the years, is difficult to prove in court. The burden is on a defendant to show he or she was not “predisposed” to commit a violent act, even if induced by a government agent. Human Rights Watch observes that standard focuses attention “not on the crime, but on the nature of the subject”, often against a backdrop where “inflammatory stereotypes and highly charged characterizations of Islam and foreigners often prevail”.
Among the informants themselves there is less ambiguity. “It is all about entrapment,” Craig Monteilh, one such former FBI informant tasked with mosque infiltration, told the Guardian in 2012.
Informants, the study found, sometimes overcome their targets’ stated objections to engage in terrorism. A man convicted in 2006 of attempting to bomb the Herald Square subway station in Manhattan told an informant who concocted the plot he would have to check with his mother and was uncomfortable planting the bombs himself. One member of the “Newburgh Four” plot to attack synagogues and military planes — whose case is the subject of an HBO documentary airing on Monday — told his informant “maybe my mission hasn’t come yet”.
Once in court, terrorism cases receive evidentiary and pre-trial leeway rarely afforded to non-terrorism cases. A federal judge in Virginia permitted into evidence statements made by a defendant while in a Saudi jail in which the defendant, Amed Omar Abu Ali, alleged torture, a longstanding practice in Saudi Arabia. The evidence formed the basis for a conviction, and eventually a life sentence, for conspiracy to assassinate George W Bush. Mohammed Warsame, who pleaded guilty to conspiracy to provide material support to a foreign terrorist organization, was held in solitary confinement for five years before his trial.
Another implication of the law-enforcement tactics cited the report is a deepening alienation of American Muslims from a government that publicly insists it needs their support to head off extremism but secretly deploys informants to infiltrate mosques and community centers.
“The best way to prevent violent extremism inspired by violent jihadists is to work with the Muslim American community — which has consistently rejected terrorism — to identify signs of radicalization and partner with law enforcement when an individual is drifting towards violence. And these partnerships can only work when we recognize that Muslims are a fundamental part of the American family,” Obama said in a high-profile 2013 speech.
Yet the Obama administration has needed to purge Islamophobic training materials from FBI counterterrorism, which sparked deep suspicion in US Muslim communities. It is now conducting a review of similar material in the intelligence community after a document leaked by Edward Snowden used the slur “Mohammed Raghead” as a placeholder for Muslims.
US: Terrorism Prosecutions Often An Illusion
Investigations, Trials of American Muslims Rife with Abuse
Human Rights Watch
Washington, DC (July 21, 2014) — The US Justice Department and the Federal Bureau of Investigation (FBI) have targeted American Muslims in abusive counterterrorism “sting operations” based on religious and ethnic identity, Human Rights Watch and Columbia Law School’s Human Rights Institute said in a report released today. Many of the more than 500 terrorism-related cases prosecuted in US federal courts since September 11, 2001, have alienated the very communities that can help prevent terrorist crimes.
The 214-page report, “Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions,” examines 27 federal terrorism cases from initiation of the investigations to sentencing and post-conviction conditions of confinement. It documents the significant human cost of certain counterterrorism practices, such as overly aggressive sting operations and unnecessarily restrictive conditions of confinement.
“Americans have been told that their government is keeping them safe by preventing and prosecuting terrorism inside the US,” said Andrea Prasow, deputy Washington director at Human Rights Watch and one of the authors of the report. “But take a closer look and you realize that many of these people would never have committed a crime if not for law enforcement encouraging, pressuring, and sometimes paying them to commit terrorist acts.”
Many prosecutions have properly targeted individuals engaged in planning or financing terror attacks, the groups found. But many others have targeted people who do not appear to have been involved in terrorist plotting or financing at the time the government began to investigate them. And many of the cases involve due process violations and abusive conditions of confinement that have resulted in excessively long prison sentences.
The report is based on more than 215 interviews with people charged with or convicted of terrorism-related crimes, members of their families and their communities, criminal defense attorneys, judges, current and former federal prosecutors, government officials, academics, and other experts.
In some cases the FBI may have created terrorists out of law-abiding individuals by suggesting the idea of taking terrorist action or encouraging the target to act. Multiple studies have found that nearly 50 percent of the federal counterterrorism convictions since September 11, 2001, resulted from informant-based cases. Almost 30 percent were sting operations in which the informant played an active role in the underlying plot.
In the case of the “Newburgh Four,” for example, who were accused of planning to blow up synagogues and attack a US military base, a judge said the government “came up with the crime, provided the means, and removed all relevant obstacles,” and had, in the process, made a terrorist out of a man “whose buffoonery is positively Shakespearean in scope.”
The FBI often targeted particularly vulnerable people, including those with intellectual and mental disabilities and the indigent. The government, often acting through informants, then actively developed the plot, persuading and sometimes pressuring the targets to participate, and provided the resources to carry it out.
“The US government should stop treating American Muslims as terrorists-in-waiting,” Prasow said. “The bar on entrapment in US law is so high that it’s almost impossible for a terrorism suspect to prove. Add that to law enforcement preying on the particularly vulnerable, such as those with mental or intellectual disabilities, and the very poor, and you have a recipe for rampant human rights abuses.”
Rezwan Ferdaus, for example, pled guilty to attempting to blow up a federal building and was sentenced to 17 years in prison. Although an FBI agent even told Ferdaus’ father that his son “obviously” had mental health problems, the FBI targeted him for a sting operation, sending an informant into Ferdaus’ mosque. Together, the FBI informant and Ferdaus devised a plan to attack the Pentagon and US Capitol, with the FBI providing fake weaponry and funding Ferdaus’ travel. Yet Ferdaus was mentally and physically deteriorating as the fake plot unfolded, suffering depression and seizures so bad his father quit his job to care for him.
The US has also made overly broad use of material support charges, punishing behavior that did not demonstrate an intent to support terrorism. The courts have accepted prosecutorial tactics that may violate fair trial rights, such as introducing evidence obtained by coercion, classified evidence that cannot be fairly contested, and inflammatory evidence about terrorism in which defendants played no part — and asserting government secrecy claims to limit challenges to surveillance warrants.
Ahmed Omar Abu Ali is a US citizen who alleged that he was whipped and threatened with amputation while detained without charge in Saudi Arabia — after a roundup following the 2003 bombings of Western compounds in the Saudi capital of Riyadh — until he provided a confession to Saudi interrogators that he says was false. Later, when Ali went to trial in Virginia, the judge rejected Ali’s claims of torture and admitted his confession into evidence. He was convicted of conspiracy, providing material support to terrorists, and conspiracy to assassinate the president. He received a life sentence, which he is serving in solitary confinement at the federal supermax prison in Florence, Colorado.
The US has in terrorism cases used harsh and at times abusive conditions of confinement, which often appear excessive in relation to the security risk posed. This includes prolonged solitary confinement and severe restrictions on communicating in pretrial detention, possibly impeding defendants’ ability to assist in their own defense and contributing to their decisions to plead guilty. Judges have imposed excessively lengthy sentences, and some prisoners suffer draconian conditions post-conviction, including prolonged solitary confinement and severe restrictions on contact with families or others, sometimes without explanation or recourse.
Nine months after his arrest on charges of material support for terrorism and while he was refusing a plea deal, Uzair Paracha was moved to a harsh regime of solitary confinement. Special Administrative Measures (SAMs) — national security restrictions on his contact with others — permitted Paracha to speak only to prison guards.
“You could spend days to weeks without uttering anything significant beyond â€˜Please cut my lights,’ â€˜Can I get a legal call/toilet paper/a razor,’ etc., or just thanking them for shutting our light,” he wrote to the report’s researchers. After he was convicted, the SAMs were modified to permit him to communicate with other inmates. “I faced the harshest part of the SAMs while I was innocent in the eyes of American law,” he wrote.
These abuses have had an adverse impact on American Muslim communities. The government’s tactics to seek out terrorism suspects, at times before the target has demonstrated any intention to use violence, has undercut parallel efforts to build relationships with American Muslim community leaders and groups that may be critical sources of information to prevent terrorist attacks.
In some communities, these practices have deterred interaction with law enforcement. Some Muslim community members said that fears of government surveillance and informant infiltration have meant they must watch what they say, to whom, and how often they attend services.
“Far from protecting Americans, including American Muslims, from the threat of terrorism, the policies documented in this report have diverted law enforcement from pursuing real threats,” Prasow said. “It is possible to protect people’s rights and also prosecute terrorists, which increases the chances of catching genuine criminals.”
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