Image has not been found. URL: /wp-content/uploads/2008/12/fort-dix-gate-eflot1.jpgA gate to Fort Dix. (Flickr: eflot)
The trouble started for Mohamad Shnewer and his old high school buddies from Cherry Hill, NJ in a Circuit City store in Mount Laurel in January 2006. When a store clerk saw the videotape that a customer wanted transferred to DVD –- showing men shooting assault weapons into the woods while shouting in Arabic –- he called the police. Police called in the FBI, which in turn recruited Mahmoud Omar, an Egyptian-born used-car salesman who had entered the United States illegally and was on probation for bank fraud. Omar, 39, was hired to befriend the five men in their 20s and find out what they were up to. In return, he’d not only get to stay in the country, but he’d be paid hundreds of thousands of dollars.
Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/09/law.jpgIllustration by: Matt Mahurin
Over the course of the next 17 months, Omar, sometimes wearing a wire, hung around and talked tough with the men about their commitment to Islam, their negative views of the United States military, the need for holy war, and how to get weapons and train for an attack. Omar also accompanied Shnewer, a 23-year-old cab driver of Jordanian descent living in Philadelphia, on drives to Fort Dix, Dover Air Force Base and other places that prosecutors say were potential targets of violence. (See the criminal complaint here — PDF.)
But transcripts of dozens of recorded conversations, many of which were played at the eight-week trial of the Fort Dix Five in Camden, NJ, that concluded earlier this week, leave a central question unclear: were these disgruntled young men actually plotting an attack, or were they just talking? That’s what the anonymous, sequestered jury, which began deliberations on Wednesday, will have to decide. (Update-the jury on Monday reached a split verdict.)
While the national media has focused on whether president-elect Barack Obama needs to create a special court to try suspected terrorists held at Guantanamo Bay, it’s largely overlooked the prosecutions of suspected terrorists already going on in US federal courts. The problem, say many legal experts, is that since September 11, in the Justice Department’s zeal to be tough on terrorism, prosecutors are using questionable tactics that could land innocent people – mainly Muslims – behind bars for a very long time. In particular, prosecutors are relying heavily on paid undercover informants, many of whom are themselves shady characters trying to reduce a felony sentence or prevent deportation and have an incentive to encourage or even incite a criminal plot. And since the primary charge against most suspected terrorists is conspiracy — essentially, planning to commit a crime — aggressive prosecutors can end up indicting angry young foreigners for combining unseemly political opinions with an active fantasy life.
“It seems to be the particular MO of the Bush Administration to get the informants to go in there and be driving the truck,” said Paul Halligan, a former lawyer for the Dept. of Homeland Security and now chief public defender for Newark, NJ. “Everybody uses informants, but this case doesn’t seem to be the strongest. It looks like the informant was trying to push the individuals into either taking action or making plans for an action, and repeatedly was returning to saying, ‘hey we’ve gotta do something, let’s do this or that,’ and they were kind of lukewarm.”
It’s a problem that comes up in many terrorism cases. Earlier this year, a jury deadlocked for the second time in the Miami trial of the “Liberty City Seven,” a group of impoverished Miami laborers accused of planning to blow up the Sears Tower in Chicago. When they were indicted in 2006, Attorney General Gonzales declared the government had just thwarted “a full ground war against the United States.”
But at trial, the leader of the group testified that he’d never planned on blowing anything up, he was just trying to get some money out of the informant who was egging them on.
“In that case I think many on the jury took the view of the defense that the whole thing was basically concocted by the government, a manufactured conspiracy by an informant who had something to sell,” says Peter Margulies, a law professor and expert on national security law at Roger Williams University. “That’s always the problem with informants of this kind.”
In 2005, prosecutors accused a prominent Yemeni sheik living in Brooklyn and his assistant of raising money for al Qaeda and Hamas, based on conversations taped by two informants. (The sheik claimed he was raising money for charities.) One of the informants later set himself on fire outside the White House, and later told reporters that the government hadn’t followed through on its promises to give him permanent US residency and enough money to make him a millionaire. (At trial he admitted he’d been paid $100,000 by the FBI and had pleaded guilty to bank fraud.) The sheik was sentenced to 75 years in prison; the conviction was reversed on appeal in October because the judge had allowed the prosecutors to introduce inflammatory evidence at trial about terrorist attacks that had no connection to the sheik or his assistant.
“In that case, the informant seemed like a highly unstable individual, yet the defendant was convicted based in part on the informant’s testimony,” said Margulies. Then again, “just because he’s unstable doesn’t mean he’s not telling the truth. You have to look at what other evidence is present.”
In the case of the Fort Dix Five, the bulk of the evidence consists of recordings made by two paid informants – one a bankrupt convicted felon, the other a man who boasted of murdering someone back home in Albania and bragged that he was not afraid to die in a suicide bombing. In addition to their conversations over the course of more than a year with the men — Shnewer plus three Albanian brothers who worked for their father as roofers in Cherry Hill, and a 25-year-old Turk who worked at a Philadelphia convenience store (plus a sixth defendant who eventually pleaded guilty to a lesser charge) -– one of the informants recorded trips he made with his new friends to a Pocono Mountains firing range, and their regular games of paintball, all allegedly part of training to attack US forces.
The FBI also produced videos from Shnewer’s computer that he’d downloaded from the internet depicting violent attacks on US troops. Finally, there was the weapons sale: the men were arrested as soon as they handed Mahmoud Omar $1400 for four M-16s and three AK-47s rifles in May 2007. They are charged with conspiring to kill US soldiers.
The defense has countered that the target practice, paintball and videos were all legal and just part of an elaborate fantasy of Shnewer’s, rather than anything the men actually planned to do. It was the informant that tried to make that fantasy real, they argue, by providing the friends with weapons they could never otherwise have obtained.
These are typical arguments in a conspiracy case relying on an informer, legal experts say, because the reality is that informants have an incentive to develop and further whatever plot the government suspects.
Under federal sentencing guidelines, an informant can get a more lenient sentence if he provides “substantial assistance in the investigation or prosecution of another person who has committed an offense.”
Although assistance doesn’t have to lead to a conviction, most informants believe it’s better for them if it does. “Psychologically, is the judge influenced and is the prosecutor influenced by whether the prosecutor won the case?” asked Anthony Barkow, a former federal prosecutor and now executive director of the Center on the Administration of Criminal Law at New York University School of Law. “Maybe. The reality is they’re human beings. And they’re getting credit for substantial assistance. And that standard counts victory, it just does.”
Informants who are paid can also earn more the longer they can draw out the case and help hatch the plan. In the Fort Dix case, Mahmoud Omar will have been paid $238,000 by the FBI by the end of this year.
Some defense lawyers say that the government capitalizes on those incentives to bring cases that should never be brought.
“The government has used an extraordinary amount of resources to find people who have an antipathy to US policies as it relates to the Middle East and see which ones can get motivated, or angry enough, to follow the leadership of a confidential informant,” says Sam Schmidt, a lawyer who represented one of the men accused in the 1998 bombings of US embassies in Africa.
“Many of these cases appear to be the informant who is either working off a case to avoid going to jail or being deported or is seeking remuneration, approaching some people and getting them excited, getting them angry and persuading them to join in what has been described as terrorism conspiracies.”
To prove conspiracy, the government only has to show that the defendants agreed to commit a crime, and did one act to further it. No substantive crime needs to have actually been committed, or even planned in any detail. In the Fort Dix case, the government doesn’t even need to prove the men agreed to attack Fort Dix – just that they had an agreement to attack US soldiers somewhere, at some point.
In such cases, “the virtue of using informants is you can get at criminality you might otherwise not be able to get at,” said Margulies. “You can incapacitate people, instead of waiting for them to do something illegal and dangerous. After 9-11, the government has clearly said we want to err on the side of preventing violence. So there have been a number of cases like this.”
Indeed, the government has compiled an impressive record in prosecuting alleged terrorists since September 11, 2001, with 145 defendants convicted by the end of 2007.
But is the government going too far? Is this legitimate prosecution of dangerous criminals, or entrapment of swaggering political malcontents?
At closing arguments earlier this week at the trial in Camden, Shnewer’s lawyer argued the latter.
“Omar led and led and pushed and pushed Mohamad as far as he could,” said Rocco Cipparone, as reported by the Newark Star-Ledger. “But at the end of the day, all Mohamad did was talk and talk and talk,” Cipparone said. “His actions — and inactions — speak more volumes than his words.”
As the transcripts reveal, the conversations, which took place in a mixture of English, Albanian and Arabic, were filled with miscommunications, bravado, ambiguity and apparent nonsense. At some points the defendants seem far too scared to really do anything at all.
When the men are supposedly shopping for weapons, for example, one of the defendants worries that if someone is caught with his machine gun, he’ll “be in deep shit.” And if someone gets killed, “As Muslim, if we get caught, we all get sent away to fucking Guantanamo Bay for 10, for 10 years with no court date…. Bro they come to you in the fucking morning when you are sleeping. And they don’t fucking play.”
Even the government’s indictment suggests that the men weren’t necessarily committed to turning their tough talk into action. Although they told the informer they’d talked vaguely about committing violence against Americans, it was the informer who promised to get them high-powered weapons to carry it out, apparently frightening one of the men, who said, “gotta be cautious.”
Still, under the unusually broad arm of US conspiracy law, even if the informant was the one who actually developed and advanced the plot, anyone else who said or even implied that he would go along with it can be convicted of conspiracy.
“A person is entrapped when he has no previous intention to violate the law and is persuaded to commit the crime by government agents,” said Barkow. “But if he’s already willing to commit the crime, it’s not entrapment if government agents convince him to do it.”
As Margulies explained: “A virtue of American conspiracy law is it allows you to show conspiracy with relatively thin evidence. In Britain, recently, they couldn’t convict people in an airport bombing plot because they had to show that action was imminent. American law is more expansive than most other democracies in that respect.”
But there’s a big problem that goes along with that. Supreme Court Justice Robert Jackson wrote in a famous 1949 case that prosecutors’ growing dependence on the elusive American conspiracy law ultimately “constitutes a serious threat to fairness in our administration of justice.”
Margulies puts it more simply: “It allows the government to basically target the people it doesn’t like.”