I have been studying the prosecution of Muslims in the “war on terror” since 2006, and the courts have been consistently and resoundingly unfair. Constitutional protections under the First Amendment; Fourth Amendment (illegal wiretapping); Fifth Amendment (tortured confessions); Sixth Amendment (secret evidencegiven to the judge but not the defense, anonymous witnesses), and Eighth Amendment (long term solitary confinement and torture) have been eviscerated, held not to apply under “these circumstances.”
We in CCF call these cases “preemptive prosecutions” because they are not generally based on anything the defendant has actually done, but rather on a fear of what s/he might do in the future. This is the purported justification for sting operations, where even severely mentally ill young men are manipulated by a government agent into agreeing to a crime. It is also the rationale for criminalizing “material support” to particular groups, even when the aid is completely non-violent. It is rooted in extreme Islamophobia, as it is Muslims who are targeted in this way, not, for example, right-wing extremists, who are responsible for a far greater number of attacks in the US.
There have been life sentences for ridiculously unfair sting operations where the Muslim defendants were not even aware of the “conspiracy” for which they were found guilty, and for completely non-violent humanitarian aid to those desperately in need.
99% of the defendants were found guilty, even in cases where there was compelling evidence of their innocence. An even higher proportion of cases were upheld on appeal, and none of the cases were accepted by the Supreme Court. Hoped-for reforms under Obama completely failed to materialize. Our data shows an even higher rate of prosecutions between 2011-2018 than from 2001-2010. Things looked extremely bleak.
However, in the past couple months, a few judges – and one jury – have started to look at some of these cases differently, for some reason no longer under the spell of the “preemptive” model which was based essentially on irrational fear. This has happened in three newer cases and in a few of the old ones which ended up before the courts again. In four cases, Muslim “terrorism” defendants have been recently released from prison because the judges sentenced them to time already served, something which never used to happen in these cases. A fifth defendant was granted a new trial, something else which never happened before in one of these cases.
Virginia Paintball case – Seifullah Chapman and Masoud Khan Were Sentenced to Life in Prison –They Have Now Been Released
In 2001, there was a group of Virginia Muslims who played paintball and engaged in some military-like training, with the idea that fighting might be necessary at some point in order to defend fellow Muslims. A few of them[1]traveled to Pakistan to receive training with Lashkar-i-Taiba (LeT) – a group fighting for Kashmiri independence.[2]Seifullah Chapman went just before 9/11 and Masoud Khan just after. On October 20, 2001, after Chapman had returned to the US and while Khan was still overseas, American forces invaded Afghanistan and the Taliban’s control of that country rapidly collapsed, inducing Khan to return home.
Both Chapman and Khan were convicted of material support to LeT and some firearms charges – the most serious being the firing of weapons while training with LeT. Both Chapman and Khan had returned home without having fired a shot at anyone, and without having done anything to fight in Kashmir, Afghanistan or anywhere else.
The firearms law they were convicted under (18 USC 924[c]) said that if the firearms were used “in connection with a crime of violence” the sentence was much hasher. At the time of the sentencing the judge found that the material support to LeT constituted a “crime of violence.” This was based on a definition of “crime of violence” that included a finding that there was a “substantial risk that physical force against a person or property may be used in the course of committing the offense.” At the time the law required that this definition apply. They were both sentenced to life in prison based on having fired weapons while at the training camp.
In April 2018, the Supreme Court decided the case of Sessions v.Dimaya which involved the samedefinitionof “crime of violence.” The Supreme Court ruled that wherever a court used this definition, and applied it based on an “ordinary case” without regard to the specific facts, it was unconstitutional because it was too vague—too hard for the judge to know whether it applied or not. Both this definition and the “ordinary case” standard were used in the cases of Chapman and Khan and resulted in their life sentences, so they filed motions to be resentenced as a result of Dimaya.
Judge Leonie Brinkema decided that based on Dimayashe would not use the “ordinary case” standard (this had formerly been required) and instead looked at the particular facts of Chapman’s and Khan’s case. Very significantly, she found that there was no “substantial risk” of their use of forcewith respect to the material support charge. She vacated the firearms counts and resentenced both of them to 10 years. Since they had already served much longer than that, the two men were released. The government is appealing and it is possible Brinkema’s decision could be reversed – but because she based the decision on the particular factsof the case, that makes it less likely to be overturned since judges are given a lot of leeway to find facts.
To the prosecution’s great surprise, the judge wasn’t blinded by the specter of “terrorism” – instead she looked carefully at the facts and found that there was not a substantial risk that they would have actually ended up using force against anyone. This shows a weakening of the preemptive model, which is entirely based on the idea that thereis a “substantial risk”that the defendant will become violent in the future.
While there are only a handful of Muslim preemptive prosecution cases where the Dimaya case applies directly, the broader concept of not allowing Islamophobic fear to supplant the law will hopefully spread.
Bakhtiyor Jumaev – Colorado – Sentenced to Time Served in July, 2018
A similar hopeful sign is the July 2018 sentencing of Bakhtiyor Jumaev in federal court in Colorado. Jumaev was convicted after trial of material support for sending a single check for $300 to a co-defendant, knowing it was to go to a designated terrorist group (the Islamic Jihad Union or IJU.) The government was asking for fifteen years, which would have been fairly typical in such a case. However, Judge John Kane sentenced him to time served (unfortunately, this amounted to just over 6 years, since the case had been pending for a long time due to wrangling over illegal wiretapping.) A well-known legal blogger recently discussed this, titling the post, “Terrorism’ isn’t what it used to be.”
Judge Kane called the government request for fifteen years “absurd,” and stated that the defendant should not receive a harsher sentence because he went to trial, stating:
“In over forty years of judging I have never imposed a harsher sentence because a defendant asserted his right to trial by jury or to testify at that trial. I am not about to do so now or in the future. I consider any trial “tax” or penalty to be contrary to the ages-long values and standards of our legal system. It is more closely associated with the jurisprudence of Russia, as described by Dostoyevsky, than our own tradition as described by Benjamin Cardozo.
A just sentence is an act for which a judge is morally responsible. That responsibility can neither be shunned nor relinquished based on the nature of the crime. We must recognize that a human being is the focal point of the sentencing process and should not be ignored or dismissed because of the inflamed rhetoric of the war on terror. I am reminded of Judge Learned Hand‘s wise comment: ―If we are to keep our democracy, there must be but one commandment: Thou Shalt Not Ration Justice.”
While sentiments like that are not unheard of in federal courts, they have been rare for many years, and they had never before been uttered in a Muslim “terrorism” case. We can only hope this is part of a trend toward treating applying the law equally in these cases, which would result in much fewer convictions and much lower sentences.
United States v. John Doe – New York – Sentenced to Time Served in August, 2018
In this case, 93 year-old Judge Jack Weinstein issued one of his lengthy, very thoughtful decisions in the case of a young man who, deluded by ISIS propaganda proclaiming an Islamic paradise, had traveled to Syria in 2014 and spent several months working for that group before managing to escape. Judge Weinstein even went so far as to redact the defendant’s name, in order to protect him, and while I know the name, I will not state it here.
The opinion began like this, situating current events within a historical context:
“Terrorism in support of ideology is not unknown in American history. See, e.g., David S. Reynolds, John Brown, Abolitionist 11 (Alfred A. Knopf 2005) … Nor is the history of export of American volunteer fighters to foreign wars unusual: we need only recall American individuals’ aid to civil wars in Greece, Israel, Italy, Spain, Sri Lanka, the Soviets, and Nazi Germany.”
Judge Weinstein noted that the “terrorism enhancement” applied as a matter of law in the case, making the Sentencing Guidelines range 30 years to life, but also noting that the maximum sentence for the statute under which the defendant was convicted was 25 years, so that became the maximum possible sentence. The judge also noted that the defendant had been cooperating extensively with the government[3] since his return, and took that into consideration, even though the government did not recommend a particular sentence.
The judge also looked at other cases where people joined ISIS and then returned to the US, noting that the average sentence in such cases was 10 years. (Ironically, this is much shorter than sentences have tended to be in purely preemptive cases, such as sting operations.) He also looked at how European countries have treated their citizens when they return home after spending time with ISIS, and noted that those sentences have been much shorter than in the US. (See Opinion, at 31-34)
When explaining the reason for his sentence of 21 months (time served – the defendant had been incarcerated for 21 months before being released on bond prior to sentencing) Judge Weinstein said something which could be said of hundreds of Muslim terrorism defendants, especially those entrapped in sting operations:
“At a particularly vulnerable time, he immersed himself in the internet, falling prey to terrorist propaganda and eventually finding himself drifting towards radicalization….Doe’s decision to travel to Syria was primarily motivated by a desire to live in a utopian Islamic environment, rather than a desire to commit violence on the group’s behalf” (P 36-37)
Likewise, he stated, in what could be termed a rebuke of the preemptive prosecution model, “While no one can ever be sure, the court believes that defendant has recognized the severity of his crimes and is not likely to move towards violent extremist behavior.” (p 39)
Uzair Paracha – New York – New Trial Granted in July, 2018
In 2003, Uzair Paracha was charged with several counts of material support to Al Qaeda, all based on his having helped Guantanamo detainee Majid Khanfraudulently obtain legal status in the US. The question was whether he did so believing that Khan was a member of Al Qaeda. If not, he could have only faced minor immigration fraud charges, or would not have prosecuted at all. He was found guilty at trial of knowingly having supported Al Qaeda by helping Khan, and was sentenced to 30 years in prison in 2006.
In 2008, Paracha filed a motion for a new trial, based on new evidence, which consisted of statements by Majid Khan and two other Guantanamo detainees, indicating that Paracha did not knowingly aid Al Qaeda.(Apparently, some previous unclassified summaries of alleged statements from them, likely obtained under torture, had provided the chief evidence against Paracha at trial.) This motion was never decided until 2018. It is not clear why the motion was pending for 10 years with no decision. In February, 2018, Paracha filed a handwritten “mandamus” motion from prison, requesting that the court issue a decision on the motion for a new trial.
In July, 2018, the court granted this motion, stating that the new statements go to the heart of the case against Paracha, and set the case down for a new trial. Again, we see a judge reexamining old fear-filled assumptions and granting relief to a defendant who was unfairly treated. (As with the cases of Chapman and Khan, the government is appealing this decision, so we will have to see what the appeal court says and, if the decision is upheld, what happens with the new trial.)
Adam Shafi – Granted Bail in October, 2018 After Mistrial – Jury Voted 8-4 to Acquit
On October 4, 2018, Adam Shafi, who is charged with attempted material support based on allegations he was seeking to join the Al Nusra Front in Syria, was released on bail after spending three years in pre-trial detention. After a trial in September, the jury had been deadlocked, voting 8-4 to acquit him. The defense argued he did not actually take steps to travel to Syria, and was suffering from depression. In the past, defendants in similar situations have been convicted, but this jury didn’t do that, and the judge then granted bail pending a retrial, something else which almost never happened in the past.
Conclusion
It may be too early to tell if these cases represent a real trend toward fairness in Muslim so-called terrorism cases, but there could be a growing recognition that injustice has been done in many of these cases, and should be remedied.
Kathy Manley is the Legal Director of the Coalition for Civil Freedoms (CCF).
Notes.
[1] Several others were also charged but got shorter sentences except for one, Ali Al-Timimi, who is still serving a life sentence even though all he did was advise the group that under Islamic law, jihad in support of the Taliban was permitted.
[2] LeT at that time was training fighters to liberate Kashmir from India and was not directly involved in the Afghan civil war. However, because of its activities in Kashmir LeT had been designated a terrorist organization by the US in order to support its ally, India. In Muslim countries, LeT fighters were often regarded as freedom fighters trying to liberate a mostly Muslim Kashmiri population from rule by Hindu India.
[3] While the defendant did provide information about what he learned while in Syria, and did a lot of work trying to dissuade others from following in his footsteps, it does not appear that he did any undercover work in any domestic case (he does appear to have had undercover conversations with some ISIS members in Syria), or that he testified against any other defendants.