Darwin BondGraham / The East Bay Express – 2018-01-09 23:09:34
Terror or Entrapment?
Darwin BondGraham / The East Bay Express
OKLAND, Calif (January 3, 2018) — When news broke last July that a federal grand jury indicted an Oakland man on terrorism charges, the case had a familiar ring to it. The US Justice Department tipped news media to the case and reporters scrambled to obtain freshly unsealed court records in which prosecutors described a startling, if unlikely, plot: 22-year-old Berkeley High School graduate Amer Alhaggagi was accused of conspiring to bomb gay bars in San Francisco and UC Berkeley’s dorms, scheming to distribute strychnine-laced cocaine at nightclubs, and even planning to light fires in Tilden Regional Park.
The alarming story saturated local media for a day. The unmistakable message was that the FBI had prevented deadly attacks.
But then, like other Bay Area alleged terrorist plots, the story disappeared. So, too, did the defendant, locked away in Alameda County’s Glenn Dyer Jail in downtown Oakland awaiting trial. Was an attack really averted? Or is there more to the story?
Since Alhaggagi’s indictment was unsealed five months ago, there’s been no new information available. This is partly because his family and attorney are reticent to speak to the media (they declined interview requests from the Express). But it’s also because the government obtained a gag order to keep secret information about the FBI’s counterterrorism operations through the regional Joint Terrorism Task Force — a multi-agency effort that includes local police forces.
Information relevant to “ongoing national security investigations and prosecutions” might fall into the hands of foreign powers or terrorists, warned prosecutors in a gag order issued in December 2016, one month after the FBI first arrested Alhaggagi and seven months before his case would become known to the public. If anyone involved in Alhaggagi’s case divulges confidential materials, they could be criminally prosecuted.
A side effect of this secrecy is that the public is only presented with the government’s shocking allegations at the outset. More complicated questions about the FBI’s methods typically go unanswered.
But what is known about Alhaggagi’s case fits a pattern. His was one of five Bay Area terrorism prosecutions in the past five years, according to the Express’ search of federal court records. Like the defendants in the other four cases, Alhaggagi had not committed a violent crime prior to his arrest.
In fact, all of the Bay Area’s accused terrorists have been charged only with attempted crimes — four with attempting to provide “material support” to a terrorist organization and one with attempted use of a weapon of mass destruction. Three suspects were heavily assisted by undercover FBI agents posing as terrorists.
And all five of the Bay Area’s terror suspects share something else in common: They’re young and Muslim, and each of them had been struggling with mental health issues and family problems.
This has led civil rights groups to question whether the FBI is unfairly entrapping Muslim youths, especially those experiencing depression or psychosis. “These cases are built around the fact that they’re young, Muslim men,” said Lara Kiswani, executive director of the Arab Resource and Organizing Center in San Francisco. “And they’re literally getting charged and punished for something they’ve never done.”
“It’s a tactic that’s been aimed almost exclusively in recent years at the Muslim and South Asian communities,” said John Crew, a retired ACLU attorney from the Bay Area who spent years researching the FBI’s counterterrorism activities. “If you’re a mouthy, troubled young Muslim, you’re much more likely to be targeted, and you’ll end up dealing with FBI JTTF agents in an entrapment scenario.”
The San Francisco Joint Terrorism Task Force is one of more than 100 such task forces in the country. It’s led by counterterrorism agents in the FBI’s San Francisco field office, but local police departments, including Oakland, Hayward, Fremont, and BART, participate in it.
The JTTF’s most recent bust was of a 26-year-old Modesto man who, after a divorce, lost custody of two children in a series of events that his father described to reporters as having “crushed him.” He allegedly planned to attack San Francisco’s Pier 39 on Christmas.
The Bay Area’s terrorism cases are also similar in that after the initial frenzy of media coverage, the cases disappear from sight. Defendants face tough laws, mounting legal bills, and even a lack of access to the warrants used to implicate them. Courts routinely side with prosecutors and withhold government materials and evidence, ruling that they’re national security secrets.
But JTTF agents say they can’t afford to second-guess whether a person is simply joking or fantasizing about acts of violence they would otherwise never commit.
“Where there is an expressed intent, there is not a choice for the government,” said FBI Assistant Special Agent in Charge Craig Fair. That means using undercover agents, sophisticated ruses, local police resources, and powerful surveillance tools to keep close tabs on those who express support for using violent tactics against non-combatants to advance a political ideology.
“We are a law enforcement agency,” said Assistant Special Agent in Charge Marina Mayo, who directly oversees the FBI San Francisco Field Office’s counterterrorism team. She said it’s not her agents’ role to provide mental health counseling. The goal is to prevent another 9/11 or San Bernardino.
But in the process, is the FBI turning vulnerable young men grappling with mental health problems into a manufactured threat to justify the existence of a sweeping counterintelligence program — the Joint Terrorism Task Force — about which little is known?
Or, is the bureau making clutch early interventions before a person can take the next steps to carry out an attack here or overseas?
Since Donald Trump’s election, some civil rights groups have called for a reassessment of local police participation in the FBI’s counterterrorism investigations, especially since the president has promoted controversial policies, including racial profiling and travel bans based on nationality.
Last year, San Francisco pulled out of the JTTF. And Oakland officials voted to conduct a public review of their police department’s involvement in the task force — although the city has decided to remain in the JTTF, at least for now.
By all accounts, Matthew Llaneza suffered from a serious mental illness his entire life. In the fourth grade, he complained to his mother, Dora Tune, that his head “felt funny.” His teachers said he was constantly disruptive. His problems extended to a lack of functional motor skills.
For example, after a year of trying unsuccessfully to teach Matthew how to change a bicycle tire, his father, Steve Llaneza, gave up. His stepfather once observed him hopelessly trying to drill a hole in wood. Llaneza couldn’t grasp the fact that the drill was in reverse.
He hardly fit the profile of a sophisticated terrorist. Yet despite the fact that Llaneza had no criminal record, the FBI put him under surveillance in 2010 after he made statements online about “engaging in violent jihad.”
It’s unclear how the FBI intercepted these statements — the bureau has a large number of analysts, agents, and informants dedicated to ferreting out information from social media and other open sources that don’t require a search warrant — but, according to court records, a confidential informant later told the bureau that Llaneza expressed support for the Taliban.
In 2011, while he was living in a trailer in front of his father’s San Jose home, Llaneza had a mental health crisis. Concerned, his father convinced police and paramedics to put Llaneza under an involuntary psychiatric hold. During this hold, Llaneza’s father recovered an assault rifle from the trailer and turned it over to the San Jose Police Department, which is part of the FBI’s Joint Terrorism Task Force.
The weapon — which Llaneza legally acquired while living in Arizona and brought to California — increased the FBI’s interest. FBI agents monitored his probation check-ins. They also began paying Llaneza’s employer, a plumber, to work for them as a confidential informant. The plumber’s updates on Llaneza’s mental condition filled many pages of FBI reports, most of which remain sealed.
Some of these reports — excerpts of which were disclosed during his federal criminal case — detailed Llaneza’s mental disabilities. The informant “noted that Matthew had the ‘mind of a little child’ and was ‘slow and drooled, while his body often shook uncontrollably.'”
“Later on, in the course of their employment, the [informant] noted that Matthew had been medicated to the point that he could not hold a shovel,” an agent wrote in another report.
The plumber told the FBI that Llaneza “was no longer interested in collecting weapons and wanted to stay out of trouble,” and that while he would boast about being able to build bombs, he “always rebuts his boast by saying he wants to stay away from weapons and explosives in accordance with his probation.” By early 2012, the informant told the FBI that Llaneza seemed “harmless.”
But FBI agents, after gathering other information through an investigatory process known as an “assessment,” determined that Llaneza was a national security threat. What this information was, how it was gathered, and who made this determination remain unknown.
Assistant Federal Public Defender Jerome Matthews, who represented Llaneza, was unable to acquire these records. “The defense does not know what factors the FBI considered or how the assessment was performed,” Matthews explained in a court filing.
Regardless, the FBI assessment set in motion an undercover sting in which an FBI agent posing as a Taliban leader planned a bank bombing with Llaneza. The FBI purchased a vehicle, provided simulated bomb-making materials, and secured a storage locker.
Federal agents assembled the fake bomb, and the undercover agent who gained Llaneza’s confidence accompanied him to a Bank of America branch on Hegenberger Road in Oakland where, on February 7, 2013, Llaneza attempted to detonate the bogus weapon.
The following day, the feds issued press releases about Llaneza’s arrest. The FBI had foiled a bank bombing, newspapers and TV news reported.
“There’s a timeline for how these cases play out,” said Zahra Billoo, director of the Council on American-Islamic Relations San Francisco Chapter, in a recent interview. “There’s an initial flurry of media coverage, and then it goes dark. And in many cases, these suspects are in solitary confinement for long amounts of time.”
Llaneza was described in the press as a radicalized Muslim terrorist — he converted to Islam in 2004 at a San Jose mosque. Prosecutors said he wanted to spark a civil war by prompting a government crackdown after the bombing.
Sensing that media was missing crucial parts of the story, Billoo contacted religious leaders in San Jose to figure out what actual ties Llaneza had to the broader Muslim community. She couldn’t find much. “No one I reached out to knew who he was,” said Billoo. “This wasn’t a deeply religious kid who was going to the mosque and was radicalized at the mosque.”
Billoo pushed back against the narrative that this was an Islamic terrorist plot. Instead, it appeared to be a case in which a mentally disabled man was recruited by FBI agents posing as the Taliban. The real threat wasn’t Llaneza. It would have been the person or organization that had the influence and resources to recruit a person like Llaneza, provide him with a vehicle, a bomb, a storage locker, and other technical and logistical resources.
Llaneza’s attorney eventually had clinical psychologist Scott Lines conduct an evaluation. Llaneza exhibited a “high degree of suggestibility,” Lines wrote.
“An idea occurs to him, or in the case of his alleged offense conduct, is offered to him, and when he is manic, the irrational idea conforms to the idea to stimulate chaos and disorder,” wrote Lines. “This, in turn, makes him easily susceptible to financial or other compensatory manipulation.”
Llaneza’s case never went to trial, so details about the FBI’s investigatory methods were never disclosed. Lines, however, reported one significant thing: Undercover agents offered Llaneza food, clothing, and marijuana, among other rewards, if he would participate in the bomb plot.
Llaneza told Lines, “when [the FBI] asked me to meet the one to do the bombing, I felt more compelled because they helped me out.” Llaneza believed that his co-conspirator would send him to Afghanistan where he would be “given a field of weed,” a drug he’d previously used to treat the symptoms of his psychiatric disorder.
“In other words, it was the false promise of being gifted with a life of ease and ready access to marijuana, which he has found helpful in managing his mood swings, that influenced him to engage in the alleged offense conduct, rather than any deep-seated criminal or terrorist leanings,” concluded Lines.
But defeating the FBI and the DOJ in a federal counterterrorism case is exceedingly difficult. So, on Feb. 27, 2014, Llaneza pled guilty to attempted use of a weapon of mass destruction. During the sentencing phase, prosecutors justified their case and dismissed questions about whether the FBI had entrapped Llaneza.
“The public needs protection from mentally ill criminals at least as much as it needs it from any other criminal,” wrote Assistant US Attorney Andrew Caputo.
Llaneza was sentenced to 15 years in prison.
As with Llaneza, the FBI first zeroed in on Alhaggagi by monitoring social media. Assistant US Attorney Waqar Hasib told a judge during a December 2016 hearing — a month after Alhaggagi was arrested and seven months before his case would be unsealed — that “an individual who was working for the FBI” struck up an online conversation with Alhaggagi because they “shared an interest in ISIS.”
According to the FBI, Alhaggagi made threats of indiscriminate and politically motivated violence. He also disclosed to the FBI informant that he lived in the Bay Area and recently applied for a job with a local police department. The government claimed Alhaggagi wanted to become a cop in order to steal weapons, but his sister told his attorneys he was genuinely interested in a law enforcement career.
Using this information, the FBI canvassed Bay Area police agencies and eventually discovered Alhaggagi’s July 23, 2016 employment packet at the Oakland Police Department. That’s how the FBI identified him and launched an undercover sting operation.
Later, when FBI agents moved in to arrest Alhaggagi, they asked OPD to call him in for what he thought would be a job interview. “That was entirely a ruse by the Oakland Police Department,” Hasib explained to a federal judge shortly after Alhaggagi’s arrest.
He added that the Oakland police were only “aware in a limited sense” about why the FBI wanted them to carry out the job interview.
Even so, the FBI has forged a close partnership with Bay Area police agencies. The bureau says the law-enforcement relationships created in the JTTF are critical to preventing terrorism.
But the feds and local police are also tight-lipped about details. The FBI denied the Express’ FOIA request seeking records about the numbers of Bay Area police officers deputized as JTTF agents and how many cases the JTTF has investigated over the past decade in Northern California, among other information.
When asked about the JTTF, Oakland police have claimed over the years to have no records to disclose or that documents are confidential. In 2014, for example, OPD denied three Public Records Act requests for the memorandum of understanding between Oakland and the FBI that allows OPD cops to become deputized JTTF agents. The MOU was made public this year after the city’s privacy commission requested it, confirming OPD’s JTTF participation since 2007.
In a recent interview, FBI officials declined to say how many local police departments participate in the JTTF or how many local police officers work on federal counterterrorism cases. But they clarified that local police typically assign one officer to liaison through the JTTF.
Assistant Special Agent in Charge of the FBI’s San Francisco field office Craig Fair said there are more than 20 different officers assigned to the Bay Area’s JTTF. “Most of them are federal,” he said, adding that the bureau “would love more local participation.”
“We consider local law enforcement to be our partners,” said Assistant Special Agent in Charge Marina Mayo. “The expertise those agencies bring is priceless.” This includes the eyes and ears of patrol officers and detectives and street-level informants.
Fair used a hypothetical scenario to explain the JTTF’s value. In an active shooter situation, “if a task force officer is embedded in a squad, he can quickly provide us with information, such as if there is anyone else out there.”
But the JTTF’s activities have caused alarm in Muslim and Arab communities. Christina Sinha, an attorney with the Asian Law Caucus in San Francisco, said one of the biggest problems pertains to assessments.
“An assessment involves a range of information gathering about a person,” explained Sinha. “It can include surveillance, interviews, and reviews of public information that’s online.” But Sinha said assessments, unlike criminal investigations, don’t require a reasonable suspicion standard.
Anyone can become a target of a JTTF assessment based on a random tip. And local cops have frequently helped the FBI conduct assessments, even though local police in California aren’t supposed to pursue investigations unless they have, at minimum, a reasonable suspicion that a crime took place.
Sinha’s legal practice involves counseling people who are the subject of a JTTF assessment. “We’ve tried to figure out how many people they’re contacting and how many assessments are conducted annually,” said Sinha, who worries that the JTTF opens many cases on baseless grounds that might result in violations of people’s privacy, or worse.
“The majority start when people call on their neighbors who they’re annoyed with or about a Muslim tourist who is taking a picture of a bridge,” she said.
FBI officials acknowledged that most of the tips they receive don’t lead to the opening of a formal investigation. Fair said the FBI’s San Francisco field office got between 1,300 and 1,400 terror-related leads last year.
In an average year, the field office conducts about 1,000 assessments. These can range from a single interview with a witness to a lengthy program of surveillance and information gathering before the agency opens a formal case.
The FBI defends the use of assessments as a discrete way of weeding out bad tips without having to open a resource-consuming and potentially disruptive investigation that involves DOJ attorneys. “We have a principle of least intrusive means,” said Fair.
Mayo added that assessments aren’t conducted for every tip. It’s usually when a person expresses a willingness to commit violence. “We would conduct an assessment if somebody said, ‘I want to blow up an abortion clinic,'” she explained.
And the FBI is adamant that race and religion play no part in guiding its assessments. “Our focus is solely on behavior,” said Fair. “We are not looking at the Muslim community.”
But Billoo of the Council on American-Islamic Relations, who also counsels people who are contacted by local police and FBI agents working through the JTTF, said some of her clients — she’s had well over 100 in the past seven years — didn’t appear to have made statements that could be construed as a criminal threat before the JTTF requested an interview. Instead, some simply made a business trip or took a vacation.
“I had a client who went to Islamic school in Mauritania and told [customs officers] at the airport when they returned,” said Billoo. “They were visited by the FBI a few months later.” She advised several other people who did nothing more than travel to some of the countries that were roiled by the Arab Spring protests of 2010 to 2012 and were later contacted by JTTF agents.
“They’d say, ‘You’re not in trouble. We’re not investigating you. But we want to know if you can help us understand what is happening over there,'” said Billoo.
And when an FBI agent knocks on your door, many people aren’t aware of their right to not consent to an interview. People may also be unaware that what they say goes in a file and is considered national security intel and might be used later in a criminal case.
The JTTF’s files can be accessed by the FBI and other law enforcement agencies in the task force, including the Immigration and Customs Enforcement Agency (ICE). It’s unclear how long the FBI retains the information or whether, if any of it is inaccurate, a person can get it changed.
Billoo said it’s difficult not to notice that the FBI is paying special attention to Muslim communities and that other religious, racial, or ethnic groups rarely report being the subject of bureau assessments. “As far as I have seen, if a case gets filed against a white supremacist, it’s because they actually carried out what they say they’re going to do,” said Sinha. “It’s as though it’s not possible for a non-Muslim to be a terrorist.”
Fair and Mayo said that domestic terrorism investigations are carried out by a different team of agents than those who are focused on terror suspects with links to foreign organizations. They denied that domestic terrorists, which they said can include anarchists, sovereign citizens, and animal rights groups, are subjected to less scrutiny by the FBI. “The domestic terrorism squad is working on skinheads — things on the left and right,” said Fair. “We’re constantly inundated with the latest intel.”
But the perception that Muslims are subjected to heightened scrutiny was underscored in 2012 when the ACLU of Northern California, Asian Law Caucus, and San Francisco Bay Guardian obtained FBI records revealing that JTTF agents visited mosques under the premise of “community outreach” but ended up entering the information they gathered into assessment files.
Fair characterized the revelation as a misunderstanding that’s done lasting damage to the bureau’s ability to work alongside Arab and Muslim communities. He said JTTF agents who made the visits used a default option from a computer program’s dropdown menu to categorize the outreach efforts.
They picked “positive intel disseminated” because, according to Fair, they didn’t have another option like “community outreach.” But “positive intel disseminated” meant the FBI considered the information intelligence for national security and law enforcement purposes shared with members of the JTTF.
The FBI said it changed the community outreach program afterward to establish a clearer line between outreach and investigations.
But with the election of President Donald Trump — whose campaign speeches included the Islamophobic lie that he personally witnessed thousands of New Jersey Muslims cheering the 9/11 attacks and promises to create a “Muslim registry,” a travel ban from Muslim-majority nations, and other racially motivated policies — the JTTF’s activities came under greater scrutiny in San Francisco.
The city’s police commission opted last February not to renew the city’s agreement with the FBI, and so SFPD officers are no longer members of the terrorism task force. Civil rights groups explained in a letter to the city’s police commission that SFPD officers working through the JTTF would be assisting in FBI investigations under the authority of the Trump administration.
Also last year, Oakland’s privacy commission recommended, and the city council adopted, oversight measures that will require city officials to review their police department’s JTTF participation to ensure OPD officers don’t violate state and local privacy and civil rights laws. Oakland, however, didn’t move to end its participation in the JTTF.
The FBI didn’t oppose either city’s actions, but in a nod to how his agency has struggled recently to gain trust in the Bay Area, Fair said, “the national political narrative has not helped us.”
During the past decade, the FBI changed its playbook for counterterrorism cases. After 9/11, FBI looked for Al Qaeda-type criminal groups dependent on the finances and direction of foreign leadership. But in the mid-2000s, and especially following the rise of the Islamic State in 2014, FBI agents started targeting people they defined as self-recruited threats who, without direction, are inspired to assist foreign terrorist groups.
Most newer cases involve young Muslim men accused of attempting to join ISIS overseas or attempting to attack a US target, according to a recent report by Karen Greenberg of Fordham University’s Center on National Security.
The government charged 95 of these ISIS-related cases between March 2014 and June 2016, the report added. “Most were attracted at least in part by social media, and many had expressed some form of social alienation, loneliness, or identity issues,” wrote Greenberg.
Two of the Bay Area’s recent terrorism cases illustrate this trend in terrorism prosecutions: Islam Natsheh and Adam Shafi.
After Natsheh’s parents separated when he was young, he became estranged from his mother, and by age 18, was experiencing severe depression, according to court records. In a letter submitted to a federal judge after Natsheh was arrested in late 2015, a family friend recalled an incident in which Natsheh locked himself inside his bedroom for one week without food and water. The friend called to help. “I can still hear him sobbing over the phone about how depressed and hopeless he was feeling. He didn’t want to feel this way and didn’t know what to do.”
Natsheh medicated himself with marijuana and prescription opioids. “He became dependent on drugs in order to escape the pain of reality,” his father wrote in a letter to the court.
His attorney, Assistant Federal Public Defender Candis Mitchell, wrote in a memo that, in a search for meaning and while despairing over his personal life and the plight of Arab civilians being killed in multiple wars from Syria to the Palestinian territories, Natsheh sought a way to intervene. But Mitchell added, “despite his interest, Mr. Natsheh never took the step to acquire any weapons training or combat skills.” She called him an impetuous and vulnerable young man “searching for greater purpose.”
The FBI called him a self-recruited terrorist. In August 2015, JTTF agents interviewed Natsheh after they identified him through social media posts in which he shared ISIS propaganda. He voluntarily, and without an attorney, answered their questions.
He acknowledged sharing controversial videos, including the execution of a Jordanian bomber pilot by ISIL, but he also “denounced holding any radical beliefs” and “denied having any intention to commit an act of violence against the United States or other government,” according to federal prosecutors’ summary of the case.
Shortly after, the Spanish Guardia Civil national police provided the FBI with information that allegedly tied Natsheh to a Spanish woman who had been arrested while attempting to travel to Syria to join ISIL. The woman’s phone held Natsheh’s contact information. A few months later, after Natsheh purchased round-trip tickets from San Francisco to Turkey, the FBI intercepted him at San Francisco International Airport.
According to prosecutors, Natsheh admitted to JTTF agents that he intended to “fight with ISIL to help the people” of Syria. He was arrested the next day and charged with attempting to provide material support to a foreign terrorist organization.
Unlike other Bay Area terrorism cases, Natsheh’s arrest and prosecution received little media attention. He pleaded guilty in December 2016 and was sentence to five years in prison.
Adam Shafi, a 24-year-old Fremont resident, was charged in 2015 with attempting to provide material support to a terrorist organization after he allegedly made statements praising the Al-Nusra Front, a lesser-known rebel group in the Syrian Civil War. Shafi traveled to Turkey, allegedly in order to cross into Syria. The material he was accused of trying to provide was himself.
The FBI first began surveilling Shafi after his father reported him missing while the family was vacationing in Egypt in August 2014. According to court records and FBI files, Shafi’s father told US Embassy officials that he was worried his son might have been “recruited” by “extreme imams.” But he didn’t mention any specific terrorist organizations.
What had actually happened, according to Shafi’s attorneys and prosecutors in the case, is that Shafi and a friend, Abdul Niazi, flew to Turkey for two days to check on the Syrian refugee situation at the Istanbul airport. While there, Shafi handed out money and food before returning to Cairo. The government maintained it was a trial run that Shafi didn’t go through with, while his attorneys maintained it was a humanitarian trip.
After Shafi returned to Cairo, his father wrote the embassy that all was resolved and requested that the government close any case it may have opened. In response, the FBI opened a full investigation. Two agents interviewed Shafi’s parents upon their return to Fremont. Agents also interviewed Shafi and Niazi. The two young men maintained they went to Turkey to see the condition of refugees.
Then came an anonymous phone call to the FBI’s Los Angeles field office. The caller claimed to be a friend of Yusuf Niazi, Abdul’s older brother. Yusuf allegedly told the anonymous tipster in a phone conversation that his younger brother had tried to travel to Jordan to join ISIS.
Yusuf, according to law enforcement records, had a criminal history and had been subjected to multiple restraining orders taken out by his father, whom Yusuf abused. He also was known to threaten violence against Abdul Niazi, so his motives in telling his friend that his younger brother and Shafi attempted to join ISIS were questionable.
Even so, JTTF agents hid near Shafi’s house in Fremont and observed him exercising with his younger brothers in a park near his family’s home. They described his exercise regimen as “paramilitary style” and surmised that he was training for combat after they saw him doing calisthenics and crawling on the ground. Shafi’s lawyers say it was an innocent exercise routine and pointed out that boot camp-style workouts are very popular.
Meanwhile, sometime after Shafi’s father reported him missing, the FBI obtained a Foreign Intelligence Surveillance Act warrant to intercept phone calls and search through text and email messages sent and received by Shafi.
The warrant is a source of controversy because FISA was created by Congress to provide the FBI with a means of obtaining foreign intelligence that can’t reasonably be obtained by normal investigative techniques.
In other words, it wasn’t meant to be used in criminal investigations involving US citizens, such as in the case of Shafi and his friend Niazi, where, if law enforcement had probable cause to think a crime had been committed, or was about to be, it could have obtained a regular search warrant. FISA is a national security tool designed for use on non-US citizens.
But the FBI used a FISA warrant to gather Shafi’s communications. Later, the bureau obtained a standard criminal search warrant for Shafi’s phone, computer, and email account. Contained in the intercepted communications was a conversation in which Shafi talked about wanting to join the Al-Nusra Front and live in Syria and condemning America as an “enemy,” according to prosecutors.
Use of FISA to obtain some of this evidence makes defending his case difficult, say Shafi’s attorneys. Neither he nor his counsel are allowed to view the warrant application and information contained in it, making it extremely difficult to challenge the admissibility of evidence obtained through it.
They moved to have the FISA materials disclosed, but the government responded by obtaining a letter from US Attorney Jeff Sessions stating that allowing Shafi and his attorneys just to see the warrant application would “harm the national security of the United States.”
After reviewing the FISA materials without Shafi or his attorneys present, US District Judge William Orrick, who oversees the case, decided in favor of the government. According to Orrick, the FBI had probable cause to believe Shafi was working as an agent of a foreign power when he traveled to Turkey, allegedly with the goal of entering Syria.
Complicating Shafi’s case even further is his imprisonment under conditions his attorneys say constitute “solitary confinement.” Prosecutors and Orrick call it “administrative segregation.” Whatever the phrase for it, Shafi has been held alone, in a small cell in Oakland’s Glenn Dyer Jail for approximately a year awaiting trial. He is allowed out of the cell for only one hour every two days and has very limited human contact.
Orrick acknowledged in a hearing more than a year ago that administrative segregation is “not at first blush something that seems tenable for a very long period of time,” but Alameda County officials say it’s for Shafi’s own safety. Assistant US Attorney Candace Kelly told Orrick that Shafi’s isolation was due to a possible threat overheard by a sheriff’s deputy: “Not all prisoners are patriots.”
Shafi’s attorneys have also accused Alameda County sheriff’s jail guards of illegally searching his cell and confiscating materials for his case, including notes that Shafi prepared for his attorneys regarding phone calls that were intercepted by the FBI using the FISA warrant. Sheriff’s deputies then handed the materials over to FBI agents who provided copies to prosecutors in the case, according to court records.
The FBI’s pre-Christmas sting operation targeting Everitt Jameson also resembled the typical script for a counterterrorism case. FBI agents first noticed Jameson on social media after an informant said he allegedly made statements in support of ISIS. Undercover agents later met with him and offered to provide ammunition and bomb making materials.
His family members said the allegations took them by surprise and that Jameson had been suffering from depression related to his recent divorce and the loss of his children in a custody battle.
Just before Jameson was arrested, he told undercover JTTF agents posing as ISIS leaders, “I don’t think I can do this after all. I’ve reconsidered.”
But the FBI says they recovered firearms and a notarized will from his home.
Jameson’s arrest, and the unsealing of his indictment in Fresno, became a major news story with headlines like “Pier 39 Christmas terror plot defused by undercover sting” and “Man planned Christmas attack on San Francisco’s Pier 39, was inspired by Islamic State.”
And like other terrorism cases, much of the evidence in Jameson’s case will likely be sealed. His case has entered the dark phase where things move slowly, and new information is scarce.
At his last court hearing on Dec. 14, Shafi was escorted by federal marshals into a San Francisco federal courtroom wearing a red and white striped jumpsuit. Sitting in the audience were his parents, brother, and sister, along with several family friends and supporters.
The hearing was short. Shafi had already lost his motion to dismiss and motions challenging evidence obtained through the FISA warrant, as well as a motion against his solitary confinement and denial of bail that was appealed to the Ninth Circuit.
But those failed legal motions had done more to shine light on the FBI’s investigatory tactics than virtually anything else in recent years. And his defense attorneys have provided a record that, when compared to his initial media portrayal as an insidious terrorist, has at least resulted in a more balanced account of a shy, if troubled, young Muslim man.
The hearing lasted just a few minutes while his attorneys and prosecutors talked about a trial timeline. Shafi was only able to glance at his family on the way into and out of the court before heading back to solitary.
Alhaggagi’s last hearing in October was similar. He was led into court in shackles. About a dozen of his family members were present. The defense and prosecution talked about a possible trial timeline.
Alhaggagi’s attorney, Mary McNamara, told US District Court Judge Charles Breyer that the case presents many of the same problems as that of Shafi, and Alhaggagi intends to go through with a trial, if necessary, to defend himself.
Unlike suspects in many other terrorism cases, Shafi and Alhaggagi haven’t pled guilty. Both men maintain that the government has taken their emails, texts, and statements and then pieced these intercepts together to imply guilt where there is only, at worst, what one of Alhaggagi’s previous attorneys, Assistant Federal Public Defender Hanni Meena Fakhoury, called “very stupid, inappropriate, and disturbing puffery” that is not criminal.
But mounting a criminal defense against FBI accusations of terrorism is expensive and complex.
It’s also one of the only ways that previously secret or rarely disclosed details about the JTTF’s methods — whether they’re nick-of-time prevention tools or webs of entrapment — can be examined by the broader public.
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