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Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions - Part 2




A Report by Human Rights Watch

July 21, 2014

I. “Home-grown Terrorism” and the Preventive Approach to Investigations

Between 2002 and 2011, nearly 500 individuals were convicted of terrorism or terrorism-related offenses in the United States, with the federal government charging an average of about 40 individuals every year, according to Department of Justice data. [3]

Some of these cases resulted from what appear to have been deliberate attempts at terrorism or terrorism financing.[4] However, in most of the cases involving the use of informants we reviewed in depth for this report, the defendants do not appear to have been involved in terrorist plotting or financing at the time the government began to investigate them. Rather, in these cases, the government’s purpose appears to have been preventive: to root out and prosecute individuals the government believes might eventually plan and carry out acts of terrorism. To this end, the US government has substantially changed the way it conducts policing and investigations related to terrorism—loosening regulations and standards governing the conduct of investigations, and engaging in extensive surveillance and use of informants, particularly in American Muslim communities.

Post 9/11 Changes to Priorities and Rules Governing Federal Terrorism Investigations

Following the September 11, 2001 attacks, the FBI reorganized to make prevention of terrorism its top institutional priority, shifting resources from traditional crime investigations to counterterrorism. More than 40 percent of the FBI’s operating budget of $3.3 billion is now devoted to counterterrorism.[5]

In 2006, then-Deputy Attorney General Paul McNulty described the Department of Justice’s preventive approach as “doing everything in its power to identify risks to our nation’s security at the earliest stage possible and to respond with forward-leaning—preventative—prosecutions.”[6] Congress assisted by allocating significant funding to the FBI to further the goal of prevention.[7]

At the same time, the US government substantially downgraded legal restrictions on the Department of Justice and FBI in particular, which had been designed to protect civil liberties during investigations and some of which had been introduced in response to past abusive behaviour.[8] Instead of authorizing limited criminal investigations, the rules authorize and encourage the FBI to perform what amounts to expansive intelligence collection. These changes include:

        Increased surveillance of communications: Congress expanded the communications that may be subject to surveillance under the Foreign Intelligence Surveillance Act (FISA) (see section IV).

        Expansive information collection: The Department of Justice, under revised Attorney General Guidelines, gave the FBI expansive authority to conduct pre-investigation “assessments”—gathering information in the absence of suspicion of wrongdoing or threat to national security—for unlimited periods.[9] As a Brennan Centre study notes, the FBI can now “gather and store in their databases information about where individuals pray, what they read, and who they associate with.”[10] The FBI may also task and recruit informants from a particular community without any articulable suspicion of criminal activity, in contrast to previous limits.[11]

        Invasive investigation techniques: FBI agents can now use invasive investigation methods—attending religious services or political events,[12] or tracking an individual’s movements—without having a reasonable indication that anyone is breaking the law. This is due to substantial revisions of the Attorney General Guidelines and the FBI’s Domestic Investigations and Operations Guide (DIOG).[13] (Some state and local law enforcement also engage in these activities, but they are not a focus of this report.)[14]

Theories of “Home-grown Terrorism” and “Radicalization”

At the same time, the FBI—as well as state and local law enforcement—developed new theories about “home-grown terrorism” and “radicalisation.” The notion was that Al Qaeda would seek to recruit and radicalise American Muslims to conduct the next major terrorist attack, and use the US as a base for fundraising.[15] Over time, law enforcement also began to focus on the prospect of a “lone wolf” terrorist, who was inspired by Al Qaeda ideology but acted alone.[16]

According to “radicalisation” theories, “violent extremists”[17] progress through particular stages and adopt extremist beliefs that may lead them to take violent or illegal actions.[18] At least at the federal level, these theories appear to have driven actual federal terrorism investigations, with FBI behavioural analysts seeking to identify terrorism suspects at various stages of the process.[19] Some studies have debunked radicalisation theories, and even federal agencies have conflicting views on their validity.[20] The FBI now believes that the threat and activity of “home-grown violent extremists,” though growing, is also unpredictable.[21]

Fears of home-grown terrorism and radicalisation theories have driven federal agencies to treat American Muslim communities as uniquely susceptible to terrorist propaganda and to subject them to greater government scrutiny.[22] Yet this assumption is unsubstantiated. As a 2009 Pew study put it, “[v]iolent jihad is discordant with the values, outlook and attitudes of the vast majority of Muslim Americans, most of whom reject extremism.”[23]

Widespread Surveillance of American Muslims and Use of Informants

With expanded authorities, and based on radicalization theories, the FBI has conducted surveillance on communities based on their religious and ethnic make-up. It has created demographic profiles to map the racial, ethnic and religious composition of neighbourhoods, including the location of mosques and beliefs of congregants.[24] As we describe in section VII, the FBI has also used voluntary interviews and activities presented as “community outreach” to solicit information from American Muslims, which have fed fears of law enforcement and distrust within communities.

As part of the “assessments” that the FBI now has the authority to conduct, the FBI has utilized undercover agents or paid informants. Posing as newcomers or converts, informants infiltrate religious and cultural institutions in communities of which they are not already a part. As several journalists have documented, these informants secretly gather information on religious practices and political beliefs of community members attending mosques and participating in cultural events.[25] Informants may also pose as newcomers at coffee shops, delis, and other local hangouts, seeking to gather information or befriend and inform on locals they meet. It is not clear how often the FBI uses paid and unpaid informants generally, or in national security cases in particular, but in a budget request from 2008 the FBI stated it has over 15,000 paid informants.[26]

The FBI has repeatedly denied conducting surveillance solely based on race or ethnicity[27] or sending informants into mosques to “troll” for leads, although as we describe in the next chapter, it has clearly done the latter.[28]

The FBI has justified its “domain mapping” program, in which the FBI collects information on where ethnic and religious communities are located, by arguing that “terrorist and criminal groups target ethnic and geographic communities for victimization and/or recruitment.”[29] This approach to investigations is discriminatory and counterproductive, undermining trust in authorities in precisely the communities where law enforcement claims to want to build that trust.

[3] See Methodology. In analyzing the data, we relied on publicly available information released by the Department of Justice. In September 2013, a federal audit revealed that the Justice Department had overstated the number of terrorism convictions, as well as several other key indicators. Ellen Nakashima, “Audit: Justice Department office overstated terrorism conviction statistics,” Washington Post, September 17, 2013, (accessed June 18, 2014). It is not possible to determine how the audit’s findings relate to the information publicly released by the Justice Department because individual-level data were not provided, making it impossible to determine which inaccuracies, if any, were contained in the aggregated document.

[4] According to one study, since 9/11, terrorist attacks by American Muslims have caused 37 deaths within the US, spread over seven cases. Charles Kurzman, “Muslim-American Terrorism in 2013,” University of North Carolina, Chapel Hill, Department of Sociology, February 5, 2014, (accessed June 18, 2014). There is no single definition of terrorism under international law, and many of the definitions used by countries are overly broad. However, the United Nations (UN) special rapporteur on human rights and counterterrorism has argued that the concept of terrorism includes only those acts or attempted acts “intended to cause death or serious bodily injury” or “lethal or serious physical violence” against one or more members of the population, or that constitute “the intentional taking of hostages” for the purpose of “provoking a state of terror in the general public or a segment of it” or “compelling a Government or international organization to do or abstain from doing something.” See UN Human Rights Council, Report of the Special Rapporteur on promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, Ten areas of best practices in countering terrorism, A/HRC/16/51, December 22, 2010, (accessed June 18, 2014), Para. 28. Scheinin’s successor, Ben Emmerson, has stated he intends to “adopt and build” on these recommended practices. “Intervention,” UN Special Rapporteur on counter terrorism and human rights, Ben Emerson, speech before the Secretary-General’s Symposium on International Terrorism Cooperation, UN Headquarters New York, September 19, 2011, transcript at (accessed June 18, 2014). Similarly, the UN Secretary-General’s High Level Panel on Threats, Challenges and Change concluded that for a violent act to be deemed terrorist, its purpose must be “to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.” UN High Level Panel on Threats, Challenges and Change, “A More Secure World: Our Shared Responsibility,” December 2004, (accessed June 18, 2014), Para. 164(d). For more information, see Human Rights Watch, In the Name of Security: Counterterrorism Laws Worldwide since September 11 (New York: Human Rights Watch, 2012),, pp.17-25.

[5] See US Department of Justice, Federal Bureau of Investigation, “Report to the National Commission on Terrorist Attacks upon the United States: The FBI’s Counterterrorism Program Since September 2001,” April 14, 2004, (accessed June 18, 2014); US Department of Justice, Office of Inspector General, Audit Division, “The External Effects of the Federal Bureau of Investigation’s Reprioritization Efforts,” Audit Report no. 05-37 (September 2005), (accessed June 18, 2014); US Department of Justice, Federal Bureau of Investigation, FY 2013 Budget Request At A Glance, (accessed June 19, 2014).

[6] Deputy Attorney General Paul J. McNulty, “Prepared Remarks at the American Enterprise Institute,” Washington, DC, May 24, 2006, (accessed June 19, 2014)

[7] See US Department of Justice, Federal Bureau of Investigation, “Report to the National Commission on Terrorist Attacks upon the United States: The FBI’s Counterterrorism Program Since September 2001,” (accessed July 11, 2014).

[8] See Amna Akbar, “Policing ‘Radicalization,’” UC Irvine Law Review, vol. 3, no. 4 (December 2013). For a description of past abuses and recommended reforms, see Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, 94th Congress, 2nd Session, “Final Report on Intelligence Activities and the Rights of Americans,” Book II, Rep. No. 94-755, April 26, 1976, (accessed June 19, 2014), p. 5. Human Rights Watch has previously documented abuses related to relaxation of legal standards regarding national security law enforcement practices. See Human Rights Watch, Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11, vo.17, no. 2(G), June 2005, For an analysis and comparison of the changing rules, see Brenan Centre for Justice, Domestic Intelligence: New Powers, New Risks (New York: Brennan Centre for Justice, 2011), (accessed June 19, 2014), p. 2.

[9] See John Ashcroft, US Department of Justice, The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection § II.A (2003) (Ashcroft Guidelines), (accessed June 24, 2014) (authorizing “the proactive collection of information concerning threats to the national security, including information on individuals, groups, and organizations of possible investigative interest, and information on possible targets of international terrorist activities or other national security threats”).

[10] Brennan Centre for Justice, Domestic Intelligence: New Powers, New Risks, p. 2.

[11] See Michael B. Mukasey, US Department of Justice, The Attorney General’s Guidelines For Domestic FBI Operations § II.A.4.e, f, j (2008) (Mukasey Guidelines), (accessed June 24, 2014). Under previous guidelines, informants were only allowed in full investigations, and after 1983, in preliminary inquiries. FBI Domestic Security Guidelines, Oversight Hearings Before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 98th Cong. 67-85 (1983), § II.B.

[12] See Ashcroft Guidelines, § VI.A andB; see also, US Department of Justice, Federal Bureau of Investigations, Domestic Investigation and Operations Guide § (DIOG) (2011), (accessed June 24,2014).

[13] For example, the 1976 Levi Guidelines, the high watermark of restrictions on the FBI’s powers, permitted a preliminary investigation only where there were “allegations or other information that an individual or group may be engaged in activities which involve or will involve the use of force or violence and which involve or will involve the violation of federal law.” Edward H. Levi, US Department of Justice, Domestic Security Investigation Guidelines § II.C. (1976). In contrast, the Ashcroft Guidelines permitted the initiation of preliminary investigations, which involve intrusive investigative methods, merely where “information is received of such a nature that some follow-up as to the possibility of criminal activity is warranted.” John Ashcroft, US Department of Justice, The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations § II.A (2002); Mukasey Guidelines, § II.B.3.b; see also DIOG, § 18.6.

[14] A growing number of state and local law enforcement are part of Joint Terrorism Task Forces with the FBI, which exist in 103 US cities. See US Department of Justice, Federal Bureau of Investigation, “Protecting America from Terrorist Attack: Our Joint Terrorism Task Forces,” (accessed June 19, 2014).

[15] In its 2004-2009 Strategic Plan, the FBI noted: “The FBI’s greatest concern currently is the threat from Al-Qaeda attack cells” that “maintain strict operational and communications security” with “militant Islamic groups and mosques in the United States.” It warned of “an extensive militant Islamic presence in the United States” focused on “fund-raising, recruitment, and training.” US Department of Justice, Federal Bureau of Investigation, Office of Victim Assistance, “Federal Bureau of Investigation Strategic Plan: 2004 – 2009,” September 9, 2004, (accessed June 19, 2004), pp. 26-27. NCJRS Abstracts Database (206803) See also, Donald Van Duyn, Deputy Assistant Director, Federal Bureau of Investigation Counterterrorism Division, testimony before the House Homeland Security Committee Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, Washington, DC, September 20, 2006, transcript at (accessed June 19, 2014) (“Al-Qaeda is also attempting to broaden its appeal to English-speaking Western Muslims”).

[16] In August 2011 President Obama stated, “[T]he most likely scenario that we have to guard against right now ends up being more of a lone wolf operation than a large, well-coordinated terrorist attack.” CNN Anchor Wolf Blitzer interview with Barack Obama, “Obama: Biggest terror fear is the lone wolf,” post to “CNN Security Clearance” (blog),, August 16, 2011, (accessed June 19, 2014). This transition in focus was accelerated by the December 2008 Fort Hood shooting by US Army Major Nidal Malik Hasan, who had sought guidance from Al-Qaeda in the Arabian Peninsula figure Anwar Al Awlaki but ultimately acted alone. See William H. Webster Commission, “Final Report of the William H. Webster Commission on the Federal Bureau of Investigation, Counterterrorism Intelligence, and the Events at Fort Hood, Texas on November 5, 2009,” July 19, 2012, (accessed June 19, 2014).

[17] The government defines “violent extremists” as individuals who support or commit ideologically motivated violence to further political, social, or religious goals. Although the government recognizes that right-wing and other ideology-based violence is of concern, it “prioritise[s] preventing violent extremism and terrorism that is inspired by al-Qaida and its affiliates….” Executive Office of the President of the United States, “Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United States,” December 1, 2011, (accessed June 19, 2014), p.2.

[18] The government’s theories of radicalization are not uniform. The New York Police Department’s (NYPD) “conveyor belt” theory, described in a 2007 report, argues that predictable behaviours and patterns mark the journey of a terrorist, through various stages of extremist indoctrination and toward “jihadisation,” i.e., planning for a terrorist attack. New York Police Department Intelligence Division, “Radicalization in the West: The Home-grown Threat,” May 2, 2007, (accessed June 19, 2014). In 2009, the NYPD issued a revised version of the report that disavowed some aspects of the 2007 report, although Muslim and civil liberties groups criticized it as continuing to include “numerous errors and harmful stereotypes.” “NYPD Clarification of Radicalization Report a ‘Welcome First Step,’” Muslim Public Affairs Council, September 10, 2009, (accessed June 19, 2014). The FBI’s radicalization theory likewise described stages: pre-radicalization, identification, indoctrination, and action. Carol Dyer et al., “Countering Violent Islamic Extremism,” FBI Law Enforcement Bulletin, vol. 76, no. 12 (December 2007), (accessed June 19, 2014), pp. 3-9.

[19] The FBI’s Behavioural Analysis Unit is involved in “operational threat assessment” and terrorism investigations, although we were only able to learn of its role as a consultant on the level of threat posed by an individual in one of our cases: Hosam Smadi (see section II). “Foiled: Inside the Smadi Case,” US Department of Justice, Federal Bureau of Investigation press release, November 5, 2010, (accessed June 19, 2010). For a general description of the unit, see US Department of Justice, Federal Bureau of Investigation, “Report to the National Commission on Terrorist Attacks upon the United States: The FBI’s Counterterrorism Program Since September 2001,” April 14, 2004, (accessed June 28, 2014).

[20]For a discussion of divergent views of radicalization among US government agencies, see Faiza Patel, Rethinking Radicalization (New York: Brennan Centre for Justice 2011), (accessed July 11, 2014), pp.13-18.

[21] “These individuals have no typical profile; their experiences and motives are often distinct,” Director of the FBI Robert S. Mueller told a US Senate committee in September 2012. “But they are increasingly savvy and willing to act alone, which makes them difficult to find and to stop.” Robert S. Mueller, Director, Federal Bureau of Investigation, statement before the Senate Committee on Homeland Security and Governmental Affairs, Washington, DC, September 19, 2012. “Supporters of these groups and their associated ideologies come from different socioeconomic backgrounds, ethnic and religious communities, and areas of the country, making it difficult to predict where violent extremist narratives will resonate.” Office of the President, “Empowering Local Partners to Prevent Violent Extremism in the United States,” August 2011, (accessed July 10, 2014), p. 1.

[22] See section VII.

[23] The Pew Forum on Religion and Public Life, “Little Support for Terrorism Among Muslim Americans,” December 19, 2009, (accessed July 10, 2014).

[24] In 2003, Newsweek reported that top FBI officials had ordered each of the Bureau’s 56 field offices to develop “demographic” profiles of their localities that included tallies of the number of mosques, “to help set investigative goals.” Michael Isikoff, “Investigators: The FBI Says, Count the Mosques,” Newsweek, February 2, 2003, (accessed June 19, 2014). In October 2006, the New York Times reported the FBI’s adoption of a new program called Domain Management, a data-mining system used to “identify threats.” A high-level FBI officer reportedly put on a demonstration of Domain Management for other FBI agents, displaying a map of San Francisco “pocked with data showing where Iranian immigrants were clustered,” where, he said, “an F.B.I. squad was ‘hunting.’” Scott Shane and Lowell Bergman, “F.B.I. Struggling to Reinvent Itself to Fight Terror,” New York Times, October 10, 2006, (accessed June 19, 2014). Documents that the American Civil Liberties Union (ACLU) obtained through FOIA corroborate these reports. American Civil Liberties Union, “ACLU EYE on the FBI: The FBI is Engaged in Unconstitutional Racial Profiling and Racial ‘Mapping,’” October 20, 2011, (accessed June 19, 2014). For an analysis of this and related practices, see Akbar, “Policing ‘Radicalization,’” UC Irvine Law Review.

[25] For example, in February 2012, FBI informant Arvinder Singh alleged that the FBI asked him to infiltrate mosques throughout Iowa and particularly in Des Moines, giving him pictures of persons of interest and asking him to report on their conversations. Kiran Khalid, “Iowa Muslim Leader: Law enforcement betrayed us,” post to “In America” (blog),, January 3, 2012, (accessed June 19, 2014). In another case, paid informant Craig Monteilh alleged that the FBI directed him to “gather as much information on as many people in the Muslim community as possible” at an Irvine, California mosque in July 2006—only two months after reportedly assuring the local community that they were not under surveillance. See First Amended Complaint Class Action¶¶ 86-146, Fazaga v. FBI, 844 F.Supp.2d 1022 (C.D. Cal. 2012) (No. 8:11-cv-00301-CJC(VBKx)); “This American Life: The Convert,” Chicago Public Radio, August 10, 2012; see also generally, Trevor Aaronson, “The Informants,” Mother Jones magazine, September/October 2011, (accessed June 19, 2014); Petra Bartosiewicz, “To Catch a Terrorist: The FBI hunts for the enemy within,” Harper’s magazine, August 2011, (accessed June 19, 2014).

[26] Department of Justice, Federal Bureau of Investigation, “FY 2008 Authorization and Budget Request to Congress,” (accessed June 19, 2014), pp. 4-24.

[27] “The FBI does not investigate individuals, groups, or communities based on ethnicity or race.” “FBI Response to ACLU Report,” US Department of Justice, Federal Bureau of Investigation press release, October 20, 2011, (accessed June 19, 2014).

[28] Matt Apuzzo and Adam Goldman, “With CIA help, NYPD moves covertly in Muslim areas,” Associated Press, August 23, 2011, (accessed June 19, 2014) (quoting then-FBI General Counsel Valerie Caproni: "If you're sending an informant into a mosque when there is no evidence of wrongdoing, that's a very high risk thing to do. You're running right up against core constitutional rights. You're talking about freedom of religion.”).

[29] “FBI Response to ACLU Report,” US Department of Justice, Federal Bureau of Investigation press release, October 20, 2011, (accessed June 29, 2014).

II. Discriminatory and Overly Aggressive Investigations Using Informants

All of the high-profile domestic terrorism plots of the last decade, with four exceptions,[30] were actually FBI sting operations—plots conducted with the direct involvement of law enforcement informants or agents, including plots that were proposed or led by informants. According to multiple studies, nearly 50 percent of the more than 500 federal counterterrorism convictions resulted from informant-based cases; almost 30 percent of those cases were sting operations in which the informant played an active role in the underlying plot.[31]

For this report, we reviewed in-depth 13 law enforcement investigations where informants played an active and central role.[32] At least eight of the investigations we examined were sting operations in which government officials identified someone as a potential target, helped him plan a terrorist attack and subsequently arrested him for involvement in that plan.[33]

In a traditional sting operation, law enforcement officials, through an informant or undercover agent, give their target an opportunity to commit a crime he or she might not have committed otherwise. Traditional stings tend to take place when there is evidence of similar past criminal activity by the target, or a propensity towards committing a certain kind of criminal act. For example, a person suspected of buying drugs may be approached by an undercover agent pretending to be a drug dealer, or someone known to view child pornography online may be approached with an offer to meet a child in person. A prosecutor can bring charges against the target of an investigation when he or she seizes on the proffered opportunity, such as buying the drugs or agreeing to meet a child for illegal sexual conduct. Former FBI agent Michael German told us:

Today’s terrorism sting operations reflect a significant departure from past practice. When the FBI undercover agent or informant is the only purported link to a real terrorist group, supplies the motive, designs the plot and provides all the weapons, one has to question whether they are combatting terrorism or creating it. Aggrandizing the terrorist threat with these theatrical productions only spreads public fear and divides communities, which doesn’t make anyone safer.[34]

In many of the sting operations we examined, informants and undercover agents carefully laid out an ideological basis for a proposed terrorist attack, and then provided investigative targets with a range of options and the weapons necessary to carry out the attack. Instead of beginning a sting at the point where the target had expressed an interest in engaging in illegal conduct, many terrorism sting operations that we investigated facilitated or invented the target’s willingness to act before presenting the tangible opportunity to do so. In this way, the FBI may have created terrorists out of law-abiding individuals.

In these cases, the informants and agents often seemed to choose targets based on their religious or political beliefs. They often chose targets who were particularly vulnerable—whether because of mental disability, or because they were indigent and needed money that the government offered them. In some cases—which have been particularly troubling for American Muslim communities—targets were seeking spiritual guidance, and the government informants or agents guided them towards violence. Relevant aspects of these cases are described below.

Identifying Targets for Investigation Due to Religious or Political Views

As previously noted, the FBI’s “radicalization theory” appears to consider certain beliefs, sympathy with particular causes, and even certain forms of religious expression as likely precursors to terrorist activity.[35] While there seems to be little evidence to support this theory—and there is a great deal of disagreement among government agencies about the validity of “radicalization theories”—the FBI appears to have relied on it to such an extent that it has entirely subverted its traditional approach to investigations.

In the 13 sting cases we examined closely, paid informants and law enforcement officials relied on various political or religious indicators to determine the extent to which a target was a potential threat.

Some of the cases we reviewed appear to have begun as virtual fishing expeditions, where the FBI had no basis to suspect a particular individual of a propensity to commit terrorist acts. In those cases, the informant identified a specific target by randomly initiating conversations near a mosque. Assigned to raise controversial religious and political topics, these informants probed their targets’ opinions on politically sensitive and nuanced subjects, sometimes making comments that appeared designed to inflame the targets. If a target’s opinions were deemed sufficiently troubling, officials concerned with nascent radicalization pushed the sting operation forward. For example:

Case of the Newburgh Four:

In the “Newburgh Four” case, one of the defendants, James Cromitie, first met FBI informant Shahed Hussain in the parking lot of the Musjid Al-Iklhas mosque in Newburgh, New York in June 2008. At the FBI’s direction, the informant had been frequenting the mosque for months and trying to strike up conversations about jihad with people there.[36]

Case of Shawahar Matin Siraj:

In this case, Osama Eldawoody, a New York Police Department (NYPD) informant, first identified Siraj as part of an assignment, which began in August 2003, to monitor mosques in Brooklyn and Staten Island.[37]No publicly available reports indicate that Eldawoody’s surveillance was based on suspicion of criminal activity; on the contrary, Eldawoody’s reports to his handlers merely covered demographics and religious behaviors, such as the number of people at prayer services and the subject matter of sermons.[38] He met Siraj in September 2003 on one of his routine surveillance visits to Brooklyn. At the time, Siraj was working at his uncle’s bookstore next door to the Bay Ridge mosque to support his family after his father had become disabled.[39] Eldawoody, 50, posed as a terminally ill nuclear engineer with deep knowledge about Islam. He told Siraj that suicide bombings were forbidden in Islam, but “killing the killers” was not.[40]He also showed Siraj pictures of human rights abuses against Muslims. Siraj described them in a letter written from prison:

[H]e showed me grotesque abuses of the Muslim prisoners at Abu Ghraib and added his emotional voice as to not wanting to die without a purpose, of cancer. Then while I was inflamed with emotions at work, he would give me websites that I should visit when I got home to keep me insighted [sic] overnight. On one occasion I was given a site where a young Iraqi girl was being raped by an Amarican [sic] guard-dog. She was terrified and it was a very inciteful [sic] experience to see that before retiring at night. There were articles and photos of children mangled or decapitated or burnt alive.[41]

Multiple sting cases we examined were initiated on the basis of tips from citizens reporting Muslim religiosity as dangerous, or reports that later proved unreliable. For example:

Case of the Fort Dix Five:

The government claims that its case began on January 31, 2006, when a store clerk contacted the FBI. As he was converting a customer’s VHS tape to a DVD, the clerk saw men with beards, the brothers Dritan and Eljvir Duka, saying “Allahuakbar” (God is Greatest) in Arabic at a shooting range, and contacted the authorities.[42] But, Mohamed Shnewer, one of the other defendants, had been in touch with FBI informant Mahmoud Omar for months before the clerk called the police, suggesting the sting operation had begun months earlier.[43]

Case of Rezwan Ferdaus:

Ferdaus came to the attention of the FBI after an owner of a gun shop reported someone “acting suspiciously.” Ferdaus was not the person in the store, but the car’s license plate traced back to the Ferdaus family—leading to the FBI questioning him at home in October 2010.[44] On December 17, 2010, the FBI sent a confidential informant into a mosque Ferdaus was attending in Worcester, Massachusetts.[45]

Case of Yassin Aref

Aref was the Imam of Masjid As-Salam, a small storefront mosque in Albany, New York. Aref, originally from Kurdistan in northern Iraq, immigrated to the US in October 1999 as a refugee and settled in Albany.[46] He and his wife Zuhur have four children. Prior to his arrest in August 2004, Aref had no criminal record.[47] He had served as Imam of the Albany mosque for almost five years.[48] The FBI first took interest in Aref when it found his name, Albany address, and phone number listed in a notebook collected during a military raid in Rawah, Iraq in June 2003.[49] The notebook was written in Kurdish, but the FBI’s Arabic translator incorrectly translated the word Kak, a common word in Kurdish for “brother,” as “commander.”[50] Informant Shahed Hussain targeted Aref, as well as another Albany Muslim named Mohammed Hossain, and the Albany mosque, starting in August 2003.[51] The prosecutors claimed Aref was an Al-Qaeda operative throughout the trial and appeal, despite evidence suggesting that Aref was not the operative the FBI had believed him to be.[52]

In other cases, government agents identified vulnerable young men and individuals with mental or intellectual disabilities, and exploited their vulnerabilities. In some of those cases, informants met young men in online chat rooms and engaged them in discussions, sometimes urging them down the perceived path toward radicalization, as occurred in the cases of Adel Daoud and Hosam Smadi, described further below. While it is true that young men and individuals with mental or intellectual disabilities have, on occasion, been involved in terrorism, and therefore cannot be ruled out for investigation, there are special concerns when highly aggressive and invasive police tactics are used on such vulnerable people.

Vulnerable Targets: People with Mental, Intellectual Disabilities, Indigent People

The FBI appears to have frequently targeted particularly vulnerable individuals with mental or intellectual disabilities. At least eight of the defendants in cases we examined showed serious signs early on that they struggled with mental or intellectual disabilities—diagnosed mental health problems or significantly low intelligence or difficulty comprehending basic concepts. These included:

Case of Shawahar Matin Siraj:

According to his attorney, Siraj was more interested in cartoons than world affairs when NYPD informant Osama Eldawoody began visiting him.[53] Once Eldawoody showed Siraj grotesque pictures of abuses against Muslims, Siraj described himself as “blinded” by emotions; Eldawoody reported to his NYPD handlers that Siraj was “impressionable.”[54] A forensic psychologist who evaluated Siraj for sentencing on behalf of the defence described Siraj as having impaired critical thinking and analytical skills, and diminished judgment. “Based on his intellectual limitations” the expert said, “he is susceptible to the manipulations and demands of others.”[55]

Siraj’s sister Saniya described her brother’s juvenile interests, saying, “Every day he would watch cartoons [and] play video games, Pokémon in particular.”[56] Even after his conviction, when he was placed in the Communication Management Unit in Terre Haute, Indiana (see section VI), Siraj’s first request was access to Pokémon.[57] Siraj wanted to please Eldawoody, whose alleged terminal illness reminded him of his father’s disability.[58] In late June 2004, Siraj told Eldawoody that he was like a father to him. Eldawoody reciprocated, telling Siraj he was like his son.[59] The plot with which Siraj was eventually charged—to attack the 34th Street subway station at Herald Square in New York City—took shape as Eldawoody began planning with Siraj and Siraj’s friend, James Elshafay, a high school dropout with an alcohol and drug problem, who was ultimately diagnosed with paranoid schizophrenia with delusions.[60] Siraj never quite agreed to the attack, saying he first had to ask his mother.[61] Nonetheless, he was arrested on August 27, 2004 and eventually charged, in a superseding indictment, with four counts of conspiring to attack the station between June and August 2004.[62]

Case of Adel Daoud:

The son of immigrants, Daoud was a 19 year-old student at his neighborhood Islamic high-school at the time of his September 2012 arrest. His mother, Mona, said in an interview that Daoud required extra assistance in school, and was heavily dependent on her: “He's not the person with a complete mind. He didn't talk until five. He was the last one of my kids to talk. He doesn't even talk Arabic….like the rest of our family, because he's slow.”[63]

Without many friends at school, Daoud was socially isolated and took refuge in the Internet, his parents told us. According to the criminal complaint, Daoud came to the government’s attention when he posted on online message boards and emailed material relating to violent jihad.[64] In May 2012, less than six months after Daoud turned 18, two FBI online undercover employees began emailing with him.[65] In July, Daoud met with an undercover FBI employee.

In August, a member of Daoud’s mosque overheard him talking about jihad.[66] The leader of Daoud’s mosque and his father told Daoud to stop talking about these topics, and another local Imam told him that engaging in violent jihad was wrong.[67] Daoud even discussed the topic of jihad with his mother at home, who told us:

He asked “What [is] jihad?”… We tried to explain there is no jihad here. …. I told him when you give money to the poor, this [is] jihad. When you stay with your mother and father who need you, this is jihad. And he was so convinced, he said, “I’ll stay with you mom.”[68]

At this point, Daoud hesitated about what was religiously proper, and sought further religious guidance from the undercover employee, asking if his sheikh overseas could issue a Fatwah (religious decree) justifying attacks on Americans.[69] The undercover employee told him his sheikh could not provide the Fatwah and continued to plan the plot with Daoud.[70] On September 14, 2012, the undercover employee drove Daoud to downtown Chicago, to a green jeep loaded with fake explosives.[71] Daoud drove the jeep to the target location—a bar in downtown Chicago.[72] Daoud exited the jeep and attempted to detonate the device, after which he was taken into custody by the FBI.[73]

Mona Daoud expressed her confusion at the government’s pursuit of her son, contending that he would not have been capable of such a plot on his own:

They say that he went downtown. He's never been downtown in his life.…'Til now when I tell them how to go to Jewel [a grocery store less than a mile from the Daoud home], he gets lost. I have to tell his little sister to go with him.[74]

Case of Hosam Smadi:

The FBI first identified Smadi on a website promoting terrorism in January 2009.[75] Undercover FBI agents initiated correspondence with him, first online and then later in person. During their written correspondence, Smadi repeatedly emphasized that he did not know much about Islam, did not want to hurt innocents, and wanted to learn more about Islam before proceeding with any violence.[76] Yet rather than encourage these views, the FBI appears to have encouraged him to pursue violence.

Throughout the government’s correspondence with Smadi, an FBI behavioral analyst assessed his progress along the “radicalization spectrum.” For example, on April 28, 2009, the analyst noted that Smadi was “experiencing anger displacement” from his mother’s death, and that he was “motivated to please his father.”[77] The analyst further noted, “[h]is mother’s death places him at the first stage of the radicalization process known as pre-radicalization.”[78] The analyst also noted Smadi’s discussions on “jihadist” websites, noting that Smadi’s “singular nature of Internet use, affirms a hypothesis—SMADI is acting as a lone wolf exhibiting three of the four stages of the radicalization process 1) pre-radicalization, 2) identification and 3) indoctrination.”[79]

In May, after viewing a video tape of Smadi’s first in-person meeting with a government agent, the FBI analyst recommended that the government agent should act more like a facilitator than a leader, noting that the agent was dominating the interaction. The agents encouraged Smadi to select a target and make plans for an attack, and praised him any time there was a move toward violence.[80]

After months of correspondence and meetings with government agents, Smadi agreed to take an explosive device (built by the government agents) to a parking garage under Fountain Place in Dallas, a large building which contained five banks and was made of glass. Smadi drove what he believed to be an explosive to the parking garage and then met an undercover agent in a waiting car.[81] From the car, he dialed a number on his cell phone that he believed was a code to detonate the explosive.[82] Smadi was charged with attempted use of a weapon of mass destruction and bombing a place of public use.[83] In May 2010, he pleaded guilty to attempted use of a weapon of mass destruction, and the government dropped the bombing charge.[84] He was sentenced to 24 years in prison.[85]

Case of the Newburgh Four:

Two of the defendants in this case, James Cromitie and Laguerre Payen, had some history of mental disability. Cromitie was a former drug addict who had reportedly admitted to a psychiatrist that he heard and saw things that were not there.[86] Payen was diagnosed with schizophrenia[87] and after his arrest in May 2009, police found his apartment strewn with bottles full of urine.[88] He did not show the intellectual aptitude to conduct a terrorist attack, telling others that he could not join a trip to the state of Florida to plan for the attack because he did not have a passport.[89]

Case of Rezwan Ferdaus

On September 28, 2011, the FBI arrested Rezwan Ferdaus for a plot to attack the Pentagon and the Capitol building with remote-controlled airplanes packed with explosives. Yet he had severe mental health problems that even the FBI had acknowledged, raising questions about whether he would have been capable of following through with any plans on his own.

Ferdaus was born in 1985 to parents who had immigrated to the United States inspired by what they saw as its economic opportunity and political freedoms. [90] His father, a Muslim from Bangladesh, was a defence contractor. His mother, a Catholic of Portuguese descent raised in Angola, worked for the Massachusetts Department of Transitional Assistance. Ferdaus’ parents and high school classmates describe him as a good student, and as having a typical American childhood in which he played sports and the drums in a band called Goosepimp. [91]

Ferdaus’ parents told us that they began to have concerns about his mental health in late 2009. They suggested he see a psychiatrist beginning in early 2010, but he refused. [92] In October 2010, Ferdaus was questioned at home by FBI agents. An owner of a gun shop had reported someone acting suspiciously. Ferdaus was not the person in the store, but the car’s license plate traced back to the Ferdaus family —leading to the FBI questioning him. [93] Showket Ferdaus, Rezwan’s father, who was present for the questioning, said that at the end of the meeting an FBI agent “told me, standing in the garage of our house, ‘obviously [Rezwan] has mental issues.’” [94]

On December 17, 2010, the FBI sent a confidential informant into a mosque Ferdaus was attending in Worcester, Massachusetts. [95] Ferdaus and the confidential informant, a repeat criminal offender, communicated for several months. In March 2011, the informant introduced Ferdaus to two FBI undercover employees who posed as Al-Qaeda operatives. In May, Ferdaus travelled to Washington, DC, on a trip paid for with money from the informant —to perform surveillance of the targets in the “attack plan” on the Pentagon and Capitol building. [96]

Throughout the FBI operation, Ferdaus continued to manifest mental and physical health problems, including loss of control over his bladder, which began in December 2010. Showket Ferdaus described his son’s deterioration:

He had lost a lot of weight, his cheek bones were visible and eyes were always red. He was highly irritable and sometimes disoriented. We again, suggested him to go see a doctor but he refused…. By March 2011, he gave up, no matter how demeaning it was, and agreed to wear diapers. I started buying 28 packs man’s diapers, which he was using up in just four or five days. [97]

Ferdaus’ father recalled an incident on February 11, 2011, [98] in which a person called the police to report that “there was a man [Ferdaus] in the road who wouldn’t move and appeared to have wet his pants.” [99]In a previous police report from the same month, Ferdaus was described as “disheveled.” [100]

In April 2011, Ferdaus father retired from his job in order to look after his son; he told us that Ferdaus “never smiled for two years, he was so sick, so very depressed.” [101] Ferdaus’ father recalled a specific incident in July 2011 when Ferdaus started shaking, “almost like he was having a seizure”; Ferdaus reportedly told his father that he was having “intrusive thoughts and cannot get rid of them.” [102] The following month, Ferdaus finally agreed to go to a mental health professional, and began taking medication for diagnosed depression. [103] Two weeks before his arrest, Ferdaus began taking a double dosage of his medication, as recommended by several psychiatrists he was seeing. [104] Ferdaus’ father described his sense of hope at that time: “I could feel, he had started to believe that he would be better when he start[ed] to take medicine. Obviously, his mother and I were ecstatic.” [105]

The FBI arrested Ferdaus on September 28, 2011, after FBI undercover employees delivered weapons to him and photographed him holding a gun. [106]

On July 20, 2012, Ferdaus pleaded guilty to attempting to damage and destroy a federal building by means of an explosive and attempting to provide material support for terrorism. Pursuant to the plea deal, he was sentenced to 17 years in prison, with 10 years of supervised release. [107] Today he is at Terre Haute, a medium security facility in Indiana.

Case of the “Portland Seven”:

The case against the “Portland Seven” is different from other informant cases because the informant was introduced after most of the alleged criminal conduct had already occurred. In the immediate aftermath of the September 11 attacks, six men flew from Portland to Hong Kong; from there they traveled to western China in an attempt to get to Afghanistan. After several unsuccessful attempts to get into Afghanistan, the group dispersed.[108] While the men were abroad, October Lewis, wife of defendant Jeffrey Battle, wired money to the group (she was later charged as the seventh defendant).[109] Most of the men eventually returned to Portland.

After Battle returned to Portland, the FBI sent confidential informant Khalid Mustafa to befriend some of the men and obtain evidence of criminal conduct. Mustafa had previously been charged with drug and weapons offenses, but the charges were later dismissed due to his cooperation with the Portland Seven investigation.[110]

The primary focus of the case was the attempted travel to Afghanistan—allegedly to support the Taliban and Al-Qaeda—conduct that had long since been completed by the time the informant was introduced.[111] However, while the informant did talk to the men about details of the group’s travel to China, it is troubling that the informant seemed to hone in on Battle—who may have had a mental disability—in an effort to elicit inflammatory statements from him. During recorded conversations, Battle made several references to shooting up Jewish schools and synagogues, saying, “So if every time they hurt or harm a Muslim over there, you go into that synagogue and hurt one over here.”[112] Battle reportedly rejected those ideas in subsequently recorded conversations.[113]

John Ransom, lawyer for October Lewis, told Human Rights Watch:

What really bothered me about this case was that Battle is the one the informant went after. Battle is mentally ill.… The informant would say inflammatory things … and Battle would agree and then really get going. And then these are the statements that the prosecution [used] to paint a picture of Battle’s character. It seemed as if the informant had been put on [Battle] for the purpose of getting these outrageous statements.[114]

Prosecutors eventually used these statements against not only Battle, but also other members of the group—even though they had little bearing on the focus of the case, which was supposedly the travel to Afghanistan.

As one of the first wave of post-September 11 terrorism prosecutions, the case was politically charged from the beginning. On October 4, 2002, then-Attorney General John Ashcroft called a press conference and announced the arrest of the original co-defendants in the Portland Seven case, a guilty plea entered by Richard Reid, and the sentencing of John Walker Lindh:

Today is a defining day in America's war against terrorism. We have neutralized a suspected terrorist cell within our borders, convicted an attempted suicide bomber, and an American pledged, trained and captured in violent jihad is sentenced.[115]

There was no evidence that the defendants formed a terrorist “cell”—few had been in contact with each other after their return to the US. Kent Ford, the father of Patrice Lumumba Ford, recalled how the television and print news ran coverage of the Ashcroft press conference all weekend, showing “real fear-mongering stuff.”[116] The handling of the case was certainly influenced by the immediacy of terrorism concerns after 9/11 and the newness of federal terrorism-related prosecutions. Prosecutor Charles Gorder told Human Rights Watch, “There was little legal precedent that gave us guidance [at the time]. We had to anticipate where the law was going to move.”[117]

Between September 6 and October 16, 2003, the six defendants in detention [118] all pleaded guilty, to varying charges, resulting in sentences of three years for October Lewis, seven years for Maher Hawash, eight years for Muhammed Bilal, ten years for Ahmed Bilal, 18 years for Patrice Lumumba Ford and 18 years, later extended to twenty, for Jeffrey Battle (the latter two pleaded guilty to conspiracy to levy war against the United States).

In at least two cases that we examined, an informant—Shahed Hussain, the same in both cases—offered the defendants money to entice them to participate in the plot. These are:

The Newburgh Four:

Forty-five-year-old James Cromitie was struggling to make ends meet when, in 2009, FBI informant Hussain offered him as much as $250,000[119] to carry out a plot which Hussain—who also went by “Maqsood”—had constructed on his own.[120] The plot involved firing rocket-propelled grenades at Stewart Air Base and placing bombs at a synagogue in Riverdale, New York. Cromitie initially responded enthusiastically, slapping hands with the informant.[121] Still, Cromitie was wary of proceeding with the plot and refused to speak to the informant for several weeks. But Cromitie had lost his job at Walmart and his financial situation became dire. He eventually called the informant to tell him he was broke and needed to make money. The informant immediately reiterated his original offer: “I told you, I can make you $250,000, but you don’t want it brother. What can I tell you?” The transcript indicates that Cromitie agreed to see him.[122]

The promise of financial reward was also crucial to the recruitment of the other three members. Cromitie relayed the informant’s offer to David Williams, insisting that he would share the spoils with Williams to help with his sick brother’s medical costs.[123] Williams’ younger brother was sick with liver cancer and in need of a new liver. The pair drew in Laguerre Payen and Onta Williams with similar promises. The FBI also authorized the informant to separately offer money to the other men to participate in the plot, which he did, even distributing small amounts of cash for cell phones, rent, meals and groceries.[124] The informant frequently promised much more to come upon completion of their “mission.”[125]

Yassin Aref and Mohammed Hossain:

As in Newburgh, informant Shahed Hussain presented himself to the Albany community as a wealthy businessman.[126] Mohammed Hossain, a member of the Albany mosque, needed money to fix his properties and run his pizza shop, which Shahed Hussain—who went by the pseudonym “Malik”—readily offered.[127]

The informant proposed to lend Hossain $50,000 in cash so long as he paid him back $2,000 monthly until he had paid back $45,000.[128] He offered Hossain the remaining $5,000 as a gift. In keeping with Islamic religious requirements pertaining to borrowing money, Hossain would take the loan without interest, and proposed that Yassin Aref, then Imam of the mosque, serve as the witness to the loan transaction.[129]

The informant at times told Hossain that he had the $50,000 to lend from legitimate business deals.[130] But, on other occasions he also indicated that the money came from buying and selling a Chinese surface-to-air missile, which was to be given to a group called Jaish-e-Mohammed (JEM). FBI Agent Thomas Coll, who handled the informant during the investigation, explained that he suggested the informant talk about JEM because it was based in Pakistan and the informant was Pakistani, so “it would be a good cover story.”[131] Neither Hossain nor Aref had any pre-existing relationship with JEM.[132] The informant implied that giving these loans to Hossain was beneficial for business purposes and that he was involved on the side with the sale of ammunition.[133] The government argued that the informant thereby offered both Hossain and Aref the opportunity to engage in illegal money laundering, for the benefit of JEM. Yet the government itself argued that Hossain’s motive for participating in the loan transaction was money and that Aref was motivated by religious duty.[134] Aref's primary concern appeared to be in witnessing the loan transaction between Hossain and the informant, and ensuring there was proper documentation.[135] When the informant pulled out the missile's trigger—a rectangular metallic box—during a video-recorded meeting about the loan transaction in January 2004, Aref appeared preoccupied with counting the money the informant had handed him.[136] Aref argued that this was because he was not privy to the discussion about the missile transaction; the prosecution argued that it was because he was callous to it.[137] Throughout the sting operation, Aref appeared uninterested in Malik’s attempts to discuss terrorist organizations. In response, Aref would simply give his opinion, as an Imam, on whether Malik’s conduct was appropriate according to Islam.[138] Both men were convicted and sentenced to 15 years on charges of material support and money laundering.[139]

Indeed, in cases we examined, several defendants [140] were seeking money when the government approached them; some were extremely poor, others were even homeless. Their continued participation in the government plot ensured periodic payments and, for some, additional money upon accomplishment of the plot.

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