To catch a terrorist:
The FBI hunts for the enemy within
By Petra Bartosiewicz
Petra Bartosiewicz also wrote "The Intelligence Factory: How America
makes its enemies disappear" for Harper's Magazine.
To fear and dehumanize alien Others, to ruthlessly hunt them down, is
truly American.—Carroll Smith-Rosenberg, This Violent Empire
In June 2008, I attended a meeting in Albany organized by the FBI and
designed to quell the growing fury over the arrest and prosecution of
two local Muslim immigrants, Yassin Aref and Mohammed Hossain. The
previous year Aref and Hossain, both leaders at a local mosque, had
been sentenced to fifteen years in federal prison in connection with
their role in a terrorism scheme that the press had dubbed the Albany
"missile plot." According to the FBI complaint, the pair had agreed to
"make money through jihad" by laundering the proceeds from the sale of
a shoulder-launched missile that a Pakistani militant group, Jaish-e-
Mohammed, intended to use to assassinate a Pakistani diplomat in New
York City. Yet in announcing the arrest of Aref and Hossain, the FBI
allowed that their crimes were "not real" and that the public had
never actually been in jeopardy. The plot had been a sting operation
wherein the FBI concocted the assassination plan and furnished the
weapon. Though much of the evidence against the two men remained
classified, it was unclear that either man even knew he was involved
in a terrorist plot.
When these details emerged, both Muslims and non-Muslims in Albany
were outraged. The investigation had targeted two well-known members
of the community, men with no prior criminal record and no history of
violence. To allay the community's concerns, the FBI embarked on a
kind of public-relations initiative by organizing a series of meetings
with local leaders. At the meeting I went to with half a dozen
activists, we were told we could take notes but not record the
proceedings, though one of the attendees, in what she considered an
act of civil disobedience, surreptitiously taped them anyway. After
some opening statements from FBI spokesman Paul Holstein, who told us
that the point of the meeting was to prove that the FBI "did the right
thing," we watched a Power Point presentation that began with ominous
chanting, which I found out later was an Islamic prayer song. The
first image identified the sting operation by its code name, Green
Grail, and showed a photograph of the defendants with glowering
expressions as guards led them in shackles from Albany's federal
courthouse.
Following the presentation, the agent in charge of the case, Tim Coll,
explained how the FBI had built its investigation, which began shortly
after the 9/11 attacks when one of the founders of Aref and Hossain's
mosque, a man named Ali Yaghi, was "observed celebrating the 9/11
attacks on the streets." Yaghi, though never charged with any
terrorism-related crime, was arrested and deported soon after, but the
mosque remained under surveillance. The FBI subsequently learned Aref
had called a "hot" telephone that investigators believed was a
possible Al Qaeda contact number in Syria, where Aref had once lived.
Coll also recounted how in a "dumpster dive" conducted by agents in a
separate case in Syracuse, Aref's name had turned up in a letter that
described him as a "loyal representative" of a group believed to have
offshoots connected to Al Qaeda.
Over the course of the eight-month sting operation, beginning in July
2003, the government's informant, posing as a wealthy Pakistani
businessman, befriended Hossain, a pizzeria owner and father of six.
The informant visited Hossain regularly, eventually offering to loan
him $50,000 to bolster his struggling business. FBI agents would later
acknowledge that Hossain was nothing more than "a way to get in," a
means to catch Aref, who, in keeping with Islamic tradition, was
brought in to witness the handover.
What made the deal illegal, according to prosecutors, occurred four
months into the operation during a meeting in the informant's office.
Pulling back a tarp in his stockroom to reveal a shoulder-launched
surface-to-air missile, the informant told Hossain, "I also do this
business for my Muslim brothers." Prosecutors claimed that Hossain
should have been able to deduce that the loan he was receiving might
be drawn from proceeds of an illegal weapons sale, and that by
accepting the loan he had opened himself to charges of money
laundering. Aref himself never saw the weapon. During one of the
exchanges of cash—all of which were documented on grainy black-and-
white surveillance footage—the missile's trigger system, which looked
not unlike a staple gun, was visible on a table. Prosecutors alleged
Aref had seen the trigger and thereby had entered the conspiracy to
"assist in money-laundering."
It's difficult not to make the FBI's case sound contrived in this
recounting, but the agents I spoke with seemed to genuinely believe
that Aref was a potential terrorist. Whatever the peculiarities of the
plot they used to ensnare him, Aref was an extremist at heart. Their
belief was supported by materials they'd found at his apartment after
his arrest, including poetry he'd written with phrases like "raise the
jihad sword," in a diary he'd kept before coming to the United States,
in which he also chronicled meetings with individuals who were known
to have discussed attacking the United States.
At the time of Aref and Hossain's arrest, U.S. Deputy Attorney General
James Comey admitted it was "not the case of the century."
Nevertheless, the Albany missile plot became one of the government's
more lauded victories in the fight against domestic terrorism—even
though, by the government's own acknowledgment, it involved no
terrorists, no terrorism plot, and a missile provided by the FBI. When
asked at a press conference following the sentencing whether there was
anything connecting the defendants, particularly Aref, to terrorism,
the prosecuting attorney answered, "Well, we didn't have the evidence
of that, but he had the ideology."
In the months after 9/11, the FBI deployed its investigative apparatus
as a blunt weapon. In November 2001, the Department of Justice began
conducting "voluntary interviews" with 5,000 Middle Eastern non-
citizens. Hundreds of FBI agents were dispatched across the country to
conduct the interviews, with standard questions like "Are you aware of
anybody who reacted in a surprising way about the terrorist attacks?
Maybe you got to work and maybe a coworker said, 'Good, I'm glad that
happened'?"11. When the Michigan chapter of the American Civil
Liberties Union offered free legal counsel to the men being
interviewed, the ACLU's hotline was overwhelmed with vitriolic
messages. "When are you going to concern yourself with Americans?"
asked one caller to the ACLU's office. "You seem to be more concerned
about a bunch of people who would just as soon kill us as look at us."
Another caller, an African American, said she didn't approve of racial
profiling, "but this is different. I think the government should go
door to door and question every one of these Arabs." At the same time,
Attorney General John Ashcroft instituted a "Responsible Cooperators
Program" that offered U.S. citizenship to undocumented and out-of-
status immigrants who could provide useful information about the 9/11
attacks.
The Justice Department's Office of the Inspector General later
described the bureau's efforts as "indiscriminate," noting that "no
distinction was generally made between the subjects of the lead and
any other individuals encountered at the scene 'incidentally.'" One
paper told of five Arab-American Boy Scouts from Michigan detained
with "fudge bags in hand" by FBI agents after they were spotted taking
photographs while on a scenic ferry ride. Law enforcement detained
more than 1,200 individuals, mostly men of Middle Eastern descent, on
immigration or other low-level violations. Detainees were often held
in solitary confinement, and under the DOJ's "hold until cleared"
policy they could be incarcerated indefinitely. The arrests were
carried out largely in secret, protected from scrutiny by an order
barring the press and the public from detention hearings to prevent
"irreparable harm to public safety."
These mass roundups, of course, echoed earlier moments in our history.
In the run-up to World War I, President Woodrow Wilson decried the
danger of "hyphenated Americans," pointing specifically to Irish and
German immigrants. During World War II, 110,000 Japanese Americans
were interned without cause. These reactions were obviously
hysterical, but were also temporary; the more recent emergency
measures, however, have been institutionalized as a permanent law-
enforcement priority. This new precedent began within days of 9/11
when, amid the finger-pointing over missed clues and intelligence
failures, FBI director Robert Mueller issued a memo to his field
offices describing a new policy of "forward-leaning—preventative—
prosecutions." Mueller wrote that "while every office will have
different crime problems that will require varying levels of
resources," the FBI's "one set of priorities" is to stop the next
terrorist attack.
This memo, which detailed policies for "preemptive" operations,
explains how, nearly a decade into our "war on terror," Justice
Department officials can claim we've caught hundreds of people
domestically whom we call terrorists, while at the same time,
according to the DOJ's own statistics, only one person—an Egyptian
immigrant who opened fire on an El Al ticket line at Los Angeles
International Airport in 2002—has actually committed an act of
terrorism on American soil. Instead, the U.S. government has amassed
more than 1,000 federal "terrorism-associated" prosecutions by
expanding its investigative purview beyond actual attacks, or even
"ticking time bomb" threats, to focus almost exclusively on a
theoretically unlimited array of potential threats. To catch a
successful terrorist under this system would constitute a failure of
law enforcement, because the perpetrators would have already committed
the act. Rather, these agents are seeking "pre-terrorists,"
individuals whose intentions, rather than actions, constitute the
primary threat.
The pursuit of hypothetical enemies has long been considered illegal
in the international arena. (Recall, for example, the labeling of
political dissidents as "intellectual terrorists" under various CIA-
backed regimes in Latin America during the 1970s.) But while such
questions have been debated in relation to foreign interventions, the
preemptive model of law enforcement has unfolded domestically with
little dissent. The FBI's own storied practice of spying on
"subversive" Americans, including civil rights leaders, socialists,
and antiwar protesters, was supposed to have ended in the 1970s with
the disbandment of J. Edgar Hoover's COINTELPRO. The Church Committee,
which investigated domestic spying by the FBI and CIA after Watergate,
found that during the fifteen years that COINTELPRO was active, the
FBI "had conducted a sophisticated vigilante operation" that included
"secret informants … wiretaps, microphone 'bugs,' surreptitious mail
opening, and break-ins." After the committee's report, Congress passed
restrictions designed to prevent such "forward-leaning" investigations
by putting a wall between intelligence gathering and law enforcement.
22. The revelation of illegal surveillance presented another practical
problem for the FBI; court cases that relied on domestic spying for
evidence were thrown out, including those against the Weathermen, who
carried out dozens of bombings during the late 1960s and early 1970s.
The Patriot Act removed that wall, enhancing the FBI's surveillance
capabilities through new powers such as roving wiretaps, "sneak and
peek" search warrants—which allow agents to search a suspected
terrorist's home without prior notice—and the expanded use of
"national security letters," which give agents access to personal
records without requiring a court order. Where once the FBI's chief
work product, and a chief metric by which agents were judged, was
arrests that could withstand the scrutiny of prosecution in federal
court, a new set of metrics has been instituted to reflect an agency
retrofitted as an intelligence-gathering organization. Evidence of
this shift can be seen in FBI director Mueller's periodic
"accountability" videoconferences, known as "Strategy Performance
Sessions," which are patterned after the NYPD's CompStat initiative.
Top officials in each FBI field office brief Mueller on a series of
intelligence-driven "performance indicators," such as the number of
"sophisticated investigations" employing wiretaps or surveillance, the
number of informants deployed in the field, and the number of
terrorist threats disrupted. The FBI has also adopted the intelligence
community's practice of compiling raw field data into "information
reports," which are disseminated to law enforcement and are based on
unvetted information that can amount to nothing more than speculation
or rumor.
Whereas the new intelligence apparatus has increased the scope of the
FBI's work, other regulations have lowered the burden of proof
necessary to launch an investigation. In 2008, the DOJ's Guidelines
for Domestic FBI Operations was revised under Attorney General Michael
Mukasey. In this new version the FBI no longer has to demonstrate a
"predicate" to an investigation, effectively giving the agency the
power to spy on whomever it wishes, for however long it wishes, even
if that individual has never committed a crime or, more important, is
not even suspected of one. According to data released by the DOJ, in
the first four months after these rules were instituted, agents
launched 11,667 such low-level inquiries, known as "assessments." (The
Justice Department is currently working on another revision of the
FBI's internal guidelines, and the rules governing assessments are
expected to be loosened further.)
Although the FBI's operational rules explicitly ban profiling solely
on the basis of race, they do not forbid using religion or national
origin to target suspects. Agents can spy on anyone "reasonably
believed to be associated with a particular criminal or terrorist
element of an ethnic community," to track "ethnic-oriented businesses
and other facilities" if "members of certain terrorist organizations
live within a certain concentrated community of the same ethnicity."
The Brennan Center for Justice at New York University's law school
summed up the practices by saying that the guidelines "envision an FBI
that vacuums up all the information made available to it by permissive
investigative rules, disseminates the information to other government
agencies, and retains it indefinitely."
Yassin Aref, a Kurdish refugee from Iraq, was first interviewed by the
FBI during their initial post-9/11 sweep. The agent's notes from the
meeting are unremarkable. Aref arrived in the United States in 1999
and was soon thereafter hired as the imam of the Central Avenue
mosque, where he earned $500 a week. Still, after the interview agents
kept an eye on Aref's mosque, installing cameras aimed at the front
and rear entrances. (When I asked Tim Coll whether he had also bugged
the mosque, his face turned red and he wouldn't answer.)
Aref was interviewed again in April 2003, when, in the first weeks of
the Iraq invasion, the FBI began to question some 11,000 individuals
who had ties to the country. In this meeting, the two agents spoke
with him at greater length, and he told them how he and his wife had
fled Iraq in 1995 to escape the persecution of the Ba'athist regime.
According to one of the investigating agents' notes, Aref offered that
"the FBI could keep a close eye on him and watch everything he does,"
and that "due to his lack of familiarity with the American language
and legal system," he asked that the FBI "let him know if he does or
says anything illegal or wrong."
In the spring of 2003, U.S. forces raided suspected insurgent camps
throughout Iraq. Soldiers found Aref's name and Albany phone number in
the course of three such raids, including one outside the town of
Rawah at what was believed to be a training camp for the extremist
group Ansar-al-Islam, where his name turned up amid "pocket litter"
scattered on the ground at the site. Next to his name was a word that
U.S. military intelligence officers translated as the Arabic term for
"commander." Shortly after the raid, the FBI launched its sting
operation.
To get closer to Aref, the FBI turned to an Albany man they'd arrested
more than a year earlier: Shahed Hussain, a Pakistani immigrant who
went by the nickname Malik and who had been busted helping immigrants
fraudulently obtain driver's licenses, feeding them answers on the
test while working as their translator. Malik was facing prison time
and possible deportation to Pakistan, where, Coll believed, he was
wanted for rape or murder. So Malik was receptive when the FBI offered
him a cooperation deal. Coll explained that Malik's mission, in
exchange for "consideration" at his sentencing, was to root out
possible terrorist threats. "I told him that he has to produce," Coll
said. "I explained it's like playing pinball. Keep scoring as many
points as you can without people knowing your identity."
Malik first approached Mohammed Hossain at his pizzeria, presenting
himself as a wealthy businessman in need of spiritual counseling. For
months he met with Hossain, bringing toys for Hossain's children and
talking about his own religious education. The conversations
frequently turned to politics, but Hossain proved not to have
extremist leanings. Typical of these exchanges, Malik asked Hossain
about the World Trade Center attacks. "Was it good or bad?" Malik
asked, and Hossain answered, "Of course, this was bad." When asked how
he defined the word "jihad," Hossain answered, "You stopped all your
considerable worldly business to come here and engage in a few words
about God. This is called jihad." But he proved more pliable on the
issue of money, admitting to Malik that he was having "a little bit"
of cash-flow trouble on a couple of rental properties he owned. At the
behest of the FBI, Malik offered Hossain a loan.
In November 2003, five months into the operation, Malik showed Hossain
the missile. In the FBI's surveillance footage, Malik can be heard
describing his business importing merchandise from China. He then
tells Hossain, almost offhandedly, that "we also import weapons." He
draws back the tarp to reveal the missile and asks Hossain whether he
knows what it is. "No," says Hossain. Malik tells him, "This is for
destroying airplanes." Hossain says, "But it's not legal." Malik
laughs, "What is legal in the world?"
The link to Aref was a stroke of luck for the FBI. Hossain himself
suggested the imam be brought in to witness the loan, which was made
in installments. The handovers of cash were themselves prosaic, but
Malik soon turned to the young imam for spiritual guidance, and the
two began meeting, occasionally sitting at a local Dunkin' Donuts,
where Malik increasingly brought up controversial topics. Aref didn't
speak Malik's native Urdu, so the two conversed in broken English. The
prosecution would later point to a handful of conversations
incriminating Aref, including one at his house in February 2004 during
which Malik mentioned that Aref and Hossain should not go to New York
City the following week because there would be a missile attack. The
transcript of this, the most damning conversation in the eight-month
sting, is not available because Malik's hidden tape recorder
supposedly fell off him. Nevertheless, according to the FBI, Aref
responded by asking Malik to leave his home. Aref later claimed that
he thought Malik was joking and warned him not to make such comments,
which prosecutors said meant that Aref was aware of the missile
conspiracy. Several months later, Malik once again discussed his other
business in front of Aref and made references to New York, but he
referred to the missile by the code word "chaudry," which Malik never
explained to Aref. During that same conversation, Malik mentioned that
he was afraid he'd have to hide out from the FBI. Aref said that he
had no such qualms because he wasn't doing anything wrong.
Informants have been deployed by law enforcement for centuries, but in
these recent terrorism investigations they have been given a more
active role in shaping cases, often encouraging or even coercing
individuals to commit violent acts toward which the individuals have
otherwise shown no predisposition. Such sting operations present a
disturbing kind of theater: the government provides the script, the
arms, the cash, and other props, and offers logistical support.
In at least one instance, in Chicago last year, the FBI instructed
informants to pay a suspect so he could quit his day job and focus on
jihad. In the case of Hemant Lakhani, a British businessman who was
convicted in 2005 of providing material support to terrorists for
brokering the sale of a surface-to-air missile, law enforcement ended
up on both sides of the arms deal, as buyer and seller, after the
informant discovered that Lakhani simply didn't have the connections
to procure the missile. The informant in that case, pivotal in
shepherding Lakhani through the sale, had previously worked with the
DEA, but after he incriminated an innocent man in the course of a drug
sting, his handler had given him the equivalent of a "burn notice." In
the desperate post-9/11 environment, the FBI hired him anyway.
Other informants have had equally dubious qualifications. The
informant in a 2007 plot to blow up jet fuel tanks at JFK Airport was
a former New York drug kingpin who had conspired to murder a rival
dealer and been busted with $2 million in cocaine. The Miami Seven,
arrested in 2006 for plotting an attack on the Sears Tower in Chicago,
had their plot concocted for them entirely by a pair of FBI
informants, one of whom had a history of assault; the other sneaked
tokes off-camera during the surveilled meetings. In 2004 an informant
was deployed against a Yemeni sheikh in Brooklyn, but after becoming
disgruntled when the FBI's promises of riches never came to fruition,
he set himself on fire in front of the White House in protest.
Informants in some cases have been so heavy-handed that they were
dismissed by the people they targeted. At a California mosque last
year an informant talked about jihad so aggressively that the mosque's
members took out a restraining order to have him barred from the
premises. (The informant, Craig Monteilh, who was paid $177,000 for
fifteen months of service, was later convicted of grand larceny in an
unrelated incident and subsequently sued the FBI, alleging that the
agency had revealed his informant status, leading to an attack by a
fellow prisoner during his incarceration.)
The informants in these sting operations were deployed to supply not
just opportunities for criminal acts but also the inflammatory
rhetoric that would justify terrorism charges. In a supposed plot to
attack the United States Army Base in Fort Dix, New Jersey, the FBI
sent two informants to infiltrate a group of suspected terrorists
after a nearby Circuit City reported a suspicious video the five men
had brought in to be copied. (The tape showed footage of what the men
later claimed was a vacation in the Poconos, where they can be seen
riding horseback, snowmobiling, and firing guns at a rifle range,
while shouting "Allahu Akbar." The government would later claim that
this was a training mission.)
During the fifteen-month sting operation that followed, one of the
informants urged the suspects to join their Muslim brothers overseas.
"Don't you want to go and die with them, man?" he said. The other,
Mahmoud Omar, an Egyptian who had agreed to work for the FBI after
facing deportation for a bank-fraud conviction, initially suggested
the plot to kill American soldiers at the army base. Omar told the men
that if they appointed him as their leader he would be the "brain" of
the operation. It was Omar who got them talking about the use of
Molotov cocktails, grenade launchers, remote-controlled detonators,
and roadside nail bombs. They also discussed purchasing a house near
the base as a sniper station, but when the men failed to follow
through with the plans, Omar grew frustrated. "You talk, but you don't
do nothing," he told one of the suspects. The five men were arrested
before they could devise a specific plan or set a date for the attack.
Four of the defendants received life sentences, and the fifth was
sentenced to thirty-three years in prison.
John Pikus, the agent who ran Albany's branch during Aref and
Hossain's trial (and has since retired), told me that given the
intelligence the agency had at the time, they believed Aref was "a bad
person." When I pressed him on whether he felt his informant had
ultimately flushed out a terrorist, he hedged. "Well, you're not going
to get me to say he was absolutely guilty," he told me. Still, Pikus
insisted that the FBI had to pursue the sting against Aref. Otherwise,
he said, "he would have walked around with an intelligence case on him
forever."
In August 2004, Aref was arrested on his way home from evening prayers
at the Central Avenue mosque. Hossain was plucked from his car by
heavily armed agents. Later that same night the FBI conducted searches
of both men's homes and of the mosque, where they wore sterile white
booties over their shoes out of respect for Islamic custom. They found
nothing notable at the mosque, but at Aref's house they discovered his
diary with the poetry about raising the "jihad sword." Agents also
found the phrase "plan in America" in the diary, along with lists of
meetings with individuals including one with Mullah Krekar, who had
been a leader in the Islamic Movement for Kurdistan, where Aref had
worked while living as a refugee in Syria. Coll told me the agents
felt "vindicated" at the find.
Not long into the discovery process, however, lawyers for Aref and
Hossain found a stunning mistake in the evidence arrayed against their
clients: the word on the mysterious scrap of paper retrieved in Rawah,
which had been key to launching the investigation, had been
misunderstood by U.S. intelligence. The word kak, translated as the
Arabic for "commander," was in fact Kurdish for "brother." After this
mix-up came to light, prosecutors sought top-secret protection for
other documents in the case, while also refusing to confirm, even to
the presiding judge, that any additional classified material existed.
Prosecutors also demanded that defense attorneys review evidence only
in the presence of a Justice Department specialist, a request the
judge eventually denied. "I think they are trying to render
meaningless the right to counsel, the right to present a defense,"
Aref's attorney, Terence Kindlon, told the New York Law Journal.
Hossain's lead attorney, Kevin Lui brand, who had been a U.S. Army
captain and worked in the JAG Corps at Walter Reed Army Medical
Center, where he had top-secret security clearance, told me he was
forced to undergo an eight-month security check before he could view
any classified evidence. Between the intelligence gathered overseas
and the months of domestic surveillance, the attorneys believed the
prosecution possessed more incriminating information that the defense
had yet to see. "They kept making it sound like they had all these
supersecret documents," said Luibrand. The day he and Kindlon were
finally granted clearance, they headed to two secure evidence rooms at
the federal courthouse in Albany that had been set up specifically for
their use. "A key was given to me, and a key was given to Kindlon.
There was a safe in each room," Luibrand told me. "We expected to view
voluminous documents. Instead, there was one piece of paper in the
safe, and it had nothing to do with my guy." The single document that
they'd been shown, which remains classified, was never presented in
court.
With the evidence they did have, the defense teams were faced with the
task of proving that the seemingly damning intelligence gathered
against their clients was not what the FBI thought it was. The
prosecution argued that "cryptic notes" from Aref's diary suggested he
was an agent of the Islamic Movement of Kurdistan sent to the United
States by one of its leaders, Krekar, a wanted terrorist, in order to
carry out a "plan in America." But the United States had classified
Krekar as a terrorist only in 2003, after he founded Ansar al-Islam, a
radical offshoot of the IMK. Aref left Syria in 1999, when the IMK was
still considered a U.S. ally. At the time Aref worked there, the group
supported the U.S. effort to overthrow Saddam Hussein, and the group's
primary goal was to establish an independent Kurdish state. When the
defense finally got their hands on the diary, over a year into the
case, they discovered that the "plan in America," was a mistranslation
of "America's plan," which additional diary entries made clear was
actually the U.S. effort to topple Saddam's regime.
When I later met with the lead prosecutor in the case, William
Pericak, I asked about the diary translation, and about the other
intelligence the government had, like Aref's numerous phone calls from
Albany to the IMK offices in Syria, which the government found
suspicious but Aref said were his only way to get news about his
friends and family back in Kurdistan. "I'm the first to say that any
individual piece of information here is capable of innocent
explanation," Pericak told me. "It's also capable of very sinister
inference."
At the trial, Pericak showed no such ambivalence, though he made clear
to the jury that "we are not proving that Mr. Aref is a terrorist,"
only that Aref "intended to help Malik disguise where the money came
from." (During the proceedings, the rooftop of the federal courthouse
was lined with sharpshooters, a precaution that could not but give
jurors the impression that the men on trial were very dangerous.)
Just as the law-enforcement community has been retrofitted with
enhanced intelligence-gathering capabilities, the prosecution of
terrorism cases in the federal courts has been subject to a series of
new security measures reminiscent of those employed against enemy
combatants in military tribunals. The government regularly asks for
and receives sweeping protective orders that bar from public view even
benign information like high school transcripts. The Classified
Information Procedures Act, whose original intent was to keep
witnesses from exposing government secrets in court, is now used to
shield "sensitive" information not only from defendants and their
counsel but sometimes from the prosecution as well. Syed Hashmi, a
U.S. citizen, pleaded guilty to knowingly hosting an Al Qaeda
operative at his apartment. His attorney, Sean Maher, told me that the
expansive security restrictions placed on evidence make it difficult
for defendants like Hashmi to assist in their own defense. As an
example—which, because of those same restrictions, he could not
confirm actually applied to Hashmi—he said a defense attorney could be
prevented from showing his client something as basic as photos of a
potential witness.
The use of secret intelligence gathered both domestically and overseas
to build cases also allows for the possibility that the evidence may
have been elicited under torture. In 2005, jurors were shown a
videotaped confession during the trial of Abu Ali, a U.S. citizen
accused of plotting to assassinate President Bush. Ali's confession
was extracted by Saudi Arabian secret police, who, his lawyer claimed,
whipped him and threatened him with dismemberment over the course of
forty-seven days of interrogation. Defense attorneys were not
permitted to present evidence that supported the allegations of
torture during the trial because of national-security restrictions. In
a statement that seems more applicable to the courts of Iran or Syria,
Amnesty International declared that such an omission had "cast a dark
shadow over the fairness of the trial."
Despite these troubling cases, the domestic prosecution of terrorists
has largely managed to avoid the censure that has befallen the United
States' international "war on terror," with its "enhanced
interrogations" of prisoners overseas and other human rights
violations. Instead, the number of domestic terror cases is likely to
grow, especially as more Guantánamo detainees are tried in the United
States, where, at least theoretically, defendants will enjoy due
process and impartial judgment.
A racketeer, writes the historian Charles Tilly, is one who "creates a
threat and then charges for its reduction." When governments, which
Tilly describes as "specialists in coercion," create threats and then
offer citizens protection from those threats, the state is running a
protection racket. The prosecutions that have emerged under the
preemptive model evince just such a quality. Through these conjured
threats, the public is treated to a simulation of a real terrorist
attack, yet at each post-arrest press conference is reassured that the
police were there every step of the way, and that, as was made clear
in the Albany case, "there was never any danger."
In December of last year, Attorney General Eric Holder spoke before a
gathering of Muslim leaders and described preemptive operations as an
"essential law-enforcement tool." He made, he said, "no apologies for
how the FBI agents handled their work." Yet while these cases
certainly demonstrate that the right enticements can persuade some
individuals to break the law, there's little evidence that they make
us safer. On the contrary, in every instance since 9/11 when an actual
terrorist attack has been attempted, it failed not because of enhanced
law-enforcement initiatives but as a result of the perpetrator's
incompetence. The 2002 "Shoe Bomber," Richard Reid, was thwarted by an
alert stewardess in his attempt to light homemade explosives hidden in
his sneakers midway through a flight from Paris to Miami; the 2009
"Underwear Bomber," Umar Farouk Abdul mu tallab, failed to ignite the
plastic explosives sewn into his underwear, in the end only scorching
himself; and the 2010 "Times Square Bomber" Faisal Shahzad's homemade
explosive device, left in the back of a parked SUV, simply didn't
detonate.
The fortunate inability of these individuals to carry out their
attacks was interpreted not as a failure of law enforcement but as
evidence of a need for further increases in security, surveillance,
and intelligence-gathering authority. Although Shahzad was questioned
under the existing "public safety exception" to the Miranda rule (and,
according to the FBI, continued to cooperate after being read his
rights), lawmakers, led by Senator Joseph Lieberman, used his arrest
to call for the suspension of Miranda warnings for all terrorism
suspects.
The terrorism-protection racket, however, has not troubled most
Americans, in part because it has been leveled almost entirely against
the nation's already marginalized Muslim population. This is no
accident, given that for the past decade the "war on terror" has been
marketed as a fight against radical Islam. Despite the Obama
Administration's assertions that it is not targeting Muslims, and
despite cosmetic changes to the official language with which terrorist
threats are discussed by the government—the National Counterterrorism
Center, for example, urges law enforcement to "avoid labeling
everything 'Muslim'"—the current administration has not only
maintained the previous administration's policies but has, in fact,
institutionalized and expanded them. The pace of informant-led stings
has picked up, with alleged "pre-terrorists" ensnared in Oregon,
Texas, and Washington, D.C., in recent months. In a revealing moment
before a congressional Homeland Security committee last September, FBI
director Mueller, one of the few holdovers from the Bush presidency,
admitted that terrorism in the United States is really a Muslim
problem, saying that his "message to the Muslim community is, the
worst thing that could happen to the Muslim community is another
attack."
Even as the FBI focuses on stopping attacks perpetrated by radical
Muslims, law enforcement has avoided branding violence from other
extremist groups as terrorism. Members of the Hutaree Christian
militia, who were arrested in March 2010 for plotting to kill police
officers with explosives, were never referred to by the FBI as
terrorists, despite being indicted on charges almost identical to
those brought against the Times Square bomber. According to a recent
Washington Post article, Homeland Security all but stopped
investigating violent radicalization threats unrelated to Islam in
2009, after a Homeland Security report on right-wing extremism, which
concluded that "white supremacist lone wolves posed the most
significant domestic terrorist threats," drew the ire of conservative
groups. The agency responded to the criticism by gutting the office
that analyzed domestic extremism. This year, Representative Peter King
of New York, chairman of the House Homeland Security Committee, held
hearings on the "radicalization" of American Muslims, rejecting
requests from fellow lawmakers to include other types of homegrown
threats, this despite the fact that since 2001, more American deaths
have been caused by non-Muslim extremists than by Muslims.
And while right-wing radicals and white supremacists have been given
less attention, the Homeland Security apparatus has been wielded in
full force against others deemed enemies of the state, particularly
those who undermine the interests of Congress's chief lobbyists. The
expanding category of national-security threats includes animal- and
environmental-rights activists as well as left-leaning political
protesters, whether antiglobalist, anticapitalist, or antiwar.
Enhanced surveillance and wiretapping powers initially passed under
the Patriot Act can now be used against citizens who are merely
"suspected of associating with radical activists." So, for example, an
NGO whose offices were raided last year by the FBI in connection with
a "domestic terrorism" investigation turned out to be working on a
humanitarian mission to Palestine, where, unbeknownst to the
activists, they'd been accompanied by an undercover FBI agent. And, as
the New York Times recently reported, the FBI targeted a self-
described anarchist, Scott Crow, in Austin, Texas, who was reportedly
attending meetings at which environmental issues were discussed. "Al
Qaeda and real terrorists are hard to find," mused Crow. "We're easy
to find."
The Animal Enterprise Terrorism Act, passed in 2006, expanded the
scope of "domestic terrorism" to include any "interference" with such
entities as medical researchers, grocery stores, zoos, and clothing
stores. The measure, which was promoted by lobbyists working for the
biomedical industry, covers, along with acts of vandalism, virtually
anything that can affect a company's bottom line. Another bill, the
Violent Radicalization and Homegrown Terrorism Act, introduced in 2007
and passed in the House but not the Senate, called for a national
commission to investigate potential domestic extremism. The bill was
reportedly ghostwritten by the RAND Corporation, which had previously
warned that the danger of "homegrown terrorism" is not merely from
jihadist sleeper cells but from "anti-globalists" and "radical
environmentalists" who "challenge the intrinsic qualities of
capitalism."
One of the outcomes of these preemptive policies has been an
unprecedented integration of all levels of law enforcement. Beginning
in 2003, the Department of Homeland Security established a nationwide
network of "fusion centers," staffed by a combination of federal,
state, and local law enforcement, which act as intelligence-data
repositories. Under the rubric of "intelligence-led policing," these
centers are intended to bring the beat cop to the front lines of
domestic intelligence-gathering. The fusion centers represent a
consolidation of data-gathering on American citizens. While the intent
is ostensibly to disrupt another terrorist attack, the majority of
resources have been devoted to solving common crimes. According to
statistics reported by the federal courts, the Patriot Act's "sneak
and peek" warrants were issued 2,332 times between October 2006 and
October 2009. Only 1 percent of sneak-and-peeks were used in terrorism-
related cases; 69 percent were for drug-related investigations.
The chief work products in this effort are Suspicious Activity
Reports, whereby local law-enforcement agencies catalog certain
"observed behaviors" that presume to make suspects of us all. At a
congressional hearing last year, Department of Homeland Security
secretary Janet Napolitano said she hoped that by the end of the year
the SARs, which are already in use in twenty-nine cities, would be
implemented nationwide. The Los Angeles Police Department was the
first to introduce SARs. Among the "suspicious activities" listed on
its website are joggers stretching "for an inordinate amount of time"
and people carrying on "long conversations on pay or cellular phones."
After the federal court in Albany sentenced Yassin Aref and Mohammed
Hossain to fifteen years in prison, the city's Muslim community was so
outraged that the FBI moved Malik, the informant, to an undisclosed
location. In January 2010 various Muslim community listservs
circulated a photo and video of Malik in an email titled "Vid & Pic of
snitch," which included a warning that he was not to be trusted. A few
months later the Albany city council passed a resolution urging the
DOJ to review its policies on "preemptive prosecutions" of terrorism
cases, saying that they unfairly targeted Muslims. But by then it was
too late. In June 2008, Malik had been dispatched to a mosque in
nearby Newburgh, New York, where he befriended an ex-convict named
James Cromitie, who had converted to Islam in prison. Over a period of
several months, posing again as a wealthy Pakistani businessman, but
this time named Maqsood, Malik treated Cromitie to free meals and
offered him a BMW while drawing his attention to a plan to attack two
synagogues in the Bronx. Malik promised Cromitie $250,000 if they
pulled off the scheme. The government had again devised the plot and
again provided the incriminating material, designing and constructing
a fake bomb complete with inert explosives and hundreds of ball
bearings.
In announcing the arrest of the Newburgh Four in May 2009, the police
once again assured the public that the operation had been "fully
controlled at all times." For much of the sting, it was unclear
whether Cromitie, who worked the night shift at Walmart, was serious
about engaging in terrorism or was just desperate for cash. On one
occasion, Cromitie was taped asking Malik for money to buy groceries.
When Malik gave him a camera to photograph potential bomb targets,
Cromitie immediately sold it to a neighbor for $50. The remaining
defendants, whom Cromitie recruited a month before the bombing was to
take place, included a schizophrenic who lived in a crack house,
surrounded by bottles of his own urine. Another said Malik promised to
give him money to help his uncle pay for a liver transplant.
At the trial in August 2010 that found all four men guilty of
attempting to use weapons of mass destruction, the presiding judge,
who had referred to the proceedings as the "un-terrorism case,"
described the government's behavior in creating the crime as
"decidedly troubling." Indeed, the plot was so staged that the police
had blocked off the street where the bust would take place. When they
pulled over the defendants' car moments after they had placed the two
fake bombs outside synagogues in the Bronx, the FBI found Malik right
where they'd scripted him to be: at the wheel of the getaway car.
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