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Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions - Part 5




A Report by Human Rights Watch

July 21, 2014

IV. Unfair Trials

Terrorism suspects, like all criminal defendants, have the right to a fair trial, guaranteed under both the US Constitution [327] and international human rights law.[328] A fair trial requires that defendants have access to competent counsel and adequate time and resources to prepare their defence. In a fair trial, if prosecutors seek to introduce evidence that would unfairly prejudice the jury, the judge will exclude the evidence. Defendants also have the right to challenge the basis for any warrant and to test whether law enforcement complied with the law during the investigation.

Terrorism cases in the US since September 11, 2001 have raised serious fair trial concerns. This is largely due to investigative and detention tactics that occur prior to trial including prolonged solitary confinement during pre-trial detention, as well as procedural impediments imposed by the US Congress or courts; use of prejudicial evidence such as evidence obtained through coercion; classified evidence obtained by warrantless wiretaps that cannot be fairly contested; and inflammatory evidence, including evidence about terrorism in non-terrorism cases that unfairly plays on jurors’ fears.

Prejudicial Evidence

Terrorism is by definition terrifying. While most crimes have specific victims, a major purpose of terrorism is to instil in the general population a fear that they themselves at any time could be victims of a terrorist attack. This means that jurors in terrorism trials may already be frightened or anxious about the crimes in question and the defendant’s role; these fears may be heightened by the introduction of certain forms of evidence at trial.

In a number of terrorism-related cases we examined, federal prosecutors have introduced, and federal judges have accepted, various types of evidence that should have been considered overly prejudicial—that is, evidence that might unfairly influence the jury. Such evidence may taint the jurors’ ability to judge objectively and deprive the defendant of a fair trial, which includes the absence of any influence on the judge or jury, regardless of motivation. [329]

Evidence that has been admitted in terrorism cases and that raises concerns includes statements obtained from the defendant by coercion, references to terrorism unrelated to the charges, and evidence that might be more prejudicial than probative. With the spectre of terrorism looming largely over the case, some judges allowed witnesses to testify anonymously (including by shielding their true identity from the defence), making it difficult for the defendant to challenge the veracity of witness testimony, and permitted other witnesses to testify when their personal circumstances suggested they were biased or unreliable.

Evidence Obtained by Coercion

Under international law, evidence obtained from defendants by coercion cannot be admitted against them.[330] Similarly, US law, following the 1966 Supreme Court ruling in Miranda v. Arizona,[331] requires law enforcement to give the defendant a series of advisories about his rights before the defendant’s confession can be admitted as evidence against him.

The Miranda requirements do not apply to evidence taken by foreign agents. Accordingly, US courts have adopted a separate “voluntariness” standard, which provides that for a confession obtained by foreign agents to be admitted in a US court, it must be the product of the defendant’s “essentially free and unconstrained choice.”[332] If the defendant’s “will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”[333]

However, in terrorism cases in the US, prosecutors have repeatedly introduced evidence that appears to have been the product of coercion, and courts have accepted it. For example:

Case of Muhammad Salah

In 1993, Israeli authorities arrested Salah at a checkpoint between Israel and Gaza.[334] The Israeli Security Agency interrogated him for about 50 days.[335] In federal court proceedings in 2006, Salah alleged that, while in interrogation, an Israeli interrogator stripped Salah naked and threatened that his family would be harmed or killed if he did not cooperate.[336]  Salah said the interrogator deprived him of sleep for 48 hours, and forced him to sit shackled on a slanted child-size chair while he interrogated Salah.[337] He then moved Salah to a 2 X 3 foot “refrigerator cell” with his hands handcuffed behind his back to a metal bar, all while wearing a hood reeking of vomit and urine.[338] Salah said he was subjected to loud music and the sound of people screaming in pain. Under these conditions, Salah signed two documents written in Hebrew—a language he did not speak or read. He wrote a third statement after being transferred to a cell where he was threatened by other inmates.[339]

When Salah challenged the admission of these statements against him at trial in the US, the judge found the testimony of his Israeli interrogators—who testified that they did not mistreat him, and in fact treated him “specially” because he was an American[340]—to be credible, despite Salah’s own testimony and that of two other Palestinians who had been interrogated by the same Israeli interrogator and described similar forms of abuse.[341] Much of the evidence from Israeli intelligence, including information about the security agencies’ typical interrogation procedures, was classified and withheld from the defense pursuant to the Classified Information Procedures Act (CIPA) (see discussion below). Salah was ultimately acquitted of terrorism charges in the federal case, though convicted of obstruction of justice and sentenced to 21 months in prison.[342]

Case of Ahmed Abu Ali

In September 2002, Abu Ali, a US citizen, traveled to Saudi Arabia to study at the Islamic University in Medina. In May 2003, three compounds primarily occupied by Westerners in the Saudi capital of Riyadh, were bombed. The Saudi authorities engaged in mass arrests in Riyadh, Mecca, Medina, and elsewhere. In June 2003 the Saudi security service, the Mabahith al-Amma (General Investigations), detained Abu Ali, holding him for 20 months without charge. Abu Ali later said Saudi agents subjected him to physical abuse, including slapping, whipping, and scarring; threatened him with amputation; and denied him food and access to a lawyer.[343] Abu Ali made statements that he later claimed were involuntary and the product of torture.[344] He alleged that after about one month in detention, a captain of the Mabahith had him copy in his own handwriting a “confession” that his Saudi interrogators had summarized.[345] While Abu Ali was in Saudi custody, FBI officials traveled to Saudi Arabia and watched from behind a two-way mirror while the Saudis interrogated him, including questions based on inquiries the FBI had provided.[346] The FBI also interrogated Abu Ali directly, with and without the presence of Saudi officials, though Abu Ali did not allege the FBI mistreated him.[347]

Nearly a year later, in May 2004, the FBI told a family friend of Abu Ali that the FBI had no further interest in his detention. Also that month, the US Embassy informed the Saudi government that there were no pending US legal proceedings against Abu Ali and that his detention should not continue at the behest of the US. Nevertheless, the Saudi authorities continued to hold Abu Ali. His parents filed a petition for his release in federal court in Washington, DC, arguing that he was in constructive US custody. In December 2004, District Judge John Bates ordered the US government to provide information regarding Abu Ali’s arrest and detention. [348] Instead, a federal grand jury issued an indictment against him in the Eastern District of Virginia. In February 2005, Abu Ali was handed over to US authorities and flown to Virginia. The indictment charged him with providing material support to and conspiring to provide material support to terrorists and designated terrorist groups.[349]

During the trial, the defense moved to suppress videotaped “confessions” of Abu Ali made while in Saudi custody on the grounds that they were involuntary and the product of torture. The government conducted an “investigation within an investigation,” to determine if his claims were credible.[350]Former prosecutor David Laufman told us that the prosecutors were aware of reports that Saudi Arabia had a record of torturing prisoners, including an annual US State Department country report on human rights.[351] Saudi officials testified via live video-feed that Abu Ali had not been tortured in Saudi custody, and other witnesses testified that Abu Ali’s behavior in the period after his arrest was not consistent with someone who had recently been tortured.[352] District Judge Gerald Bruce Lee found the testimony of Saudi intelligence officials that Abu Ali was not tortured to be credible, expressed doubts about Abu Ali’s own credibility during his cross-examination, denied the defendant’s motion to suppress his confessions, and permitted the prosecution to introduce at trial the inculpatory statements obtained from Abu Ali while in Saudi custody.[353] The case was highly politically charged.

 In opposing Abu Ali’s motion to suppress his statements, the prosecution brief began: “The defendant in this case represents one of the most dangerous terrorist threats that America faces in the perilous world after September 11, 2001: an Al-Qaeda operative born and raised in the United States, trained and committed to carry out deadly attacks on American soil.”[354] The government deemed Abu Ali’s allegations of torture “a fabrication” designed to “thwart justice” and relied heavily on the testimony of Saudi officials that they had treated Abu Ali humanely.[355] The judge did not allow the defense to introduce as evidence at trial the many reports by the US State Department and organizations like Amnesty International and Human Rights Watch that have documented torture in Saudi Arabia—including evidence of torture of two UK nationals in prison at the same time as Abu Ali.[356] The judge concluded that evidence of other individuals’ torture was not relevant to whether Abu Ali had been tortured.[357]

Abu Ali was convicted of conspiracy and providing material support to terrorists, as well as conspiracy to assassinate former President George W. Bush. He was sentenced to 30 years in prison, which was later revised to a life sentence.[358]

Inflammatory or Improper Evidence

Particularly in cases that are the result of an FBI “sting” operation, prosecutors wish to show the defendants’ state of mind and pre-existing interest in terrorism. To do so, prosecutors frequently display videos or show websites found on defendants’ computers. They seek to introduce evidence about the defendants’ views of Islam and certain religious words or phrases. In a number of cases, prosecutors have introduced as evidence statements that were mistranslated, and as a result were much more inflammatory than they would have been if correctly translated. And in some cases where the charges have nothing to do with terrorism, prosecutors seek—and judges have permitted—the introduction of inflammatory evidence of terrorist violence unrelated to the case that is highly prejudicial.

Inaccurate Translations

In many terrorism cases we reviewed, the prosecution’s expert asserted a singular, extreme and contested meaning of an Arabic word, which failed to accurately represent the subtleties of language. These translations often resulted in highly inflammatory—and inaccurate—evidence being presented against the defendant. For example:

Case of Adnan Mirza:

In this case, the judge allowed an FBI undercover employee involved in the sting operation who had no demonstrated expertise in Islam or Arabic to testify about the Arabic word “Shaheed,” which the undercover claimed Mirza had said he hoped he would get. According to the undercover employee, “‘Shaheed’ was, basically, the blessings that you would get if you lived a proper Muslim life and went out as a martyr, died as a martyr.”[359] The undercover employee did not explain—and probably did not have the expertise to even know—that the term has a broad meaning, which includes not only dying while fighting to defend Islam, but also dying because of religious persecution, or for the well-being of others. It was also problematic that, over the defense’s objection, the judge allowed the undercover employee, with no demonstrated expertise in Islam, to define for the jury an Islamic concept.[360] As with the repeated references to “jihad” in Mirza’s trial and many other terrorism trials, the prosecution presented a definition that was the most extreme, ignoring other interpretations of key words like Shaheed.[361]

Case of Barry Bujol:

Evidence introduced against Barry Bujol also raised concerns about language. When the informant talked to Bujol about traveling to Yemen and fighting with the “holy warriors,” Bujol often responded, “Insha Allah”—an Arabic term that literally means “God willing.” The prosecution presented this as demonstrating Bujol’s clear determination to fight with Al-Qaeda in the Arabian Peninsula (AQAP). But, Bujol was a recent convert to Islam, and the word Insha Allah may be used in many different ways—such as simply to signal “okay”—particularly by those who have recently acquired an Islamic vocabulary.[362] The government’s definition of other Arabic terms, including Hijrah, or emigration, was likewise controversial.[363] In Bujol’s case, because he chose to represent himself at trial, the government’s use of inaccurate or disputed phrases went largely uncontested until the sentencing phase.

In some cases, mistranslation of recorded conversations between the defendants and the informants, or misidentification by the government of the speaker, may have distorted their meaning in ways that had a negative impact on the defense. For example:

Case of Matin Siraj (see section II):

one part of the transcription of a conversation between the informant and Siraj, which was conducted in Urdu (a Pakistani language), refers to “SUB #1” who described concern for people’s lives. The speaker was Siraj, yet was not labeled as such.[364] Siraj described in a letter from prison that later in the transcript “I clearly state ‘We have to drop it!’ which the transcriber identifies with a (?) mark, as if I were asking a question, as I was clearly declaring dropping the 34th Street station scheme.”[365] Siraj felt that the transcription failed to present that he was attempting to back out of the plot.

Case of Yassin Aref (see section II):

During the trial, Aref became extremely agitated and the defense proposed that another translator double-check the accuracy of the translations.[366] Aref said the government distorted almost all the recordings they had, particularly when he spoke in Kurdish.[367] Aref alleges the government also manipulated his statements to make him sound dangerous, for example by playing over and over recordings of terms like “jihad” that he or the Islamic Movement of Kurdistan (IMK) used in the 1990s, to make it look like the IMK was calling for jihad against the West or that he was praising Mujahideen. “They knew very well that the jury took these words as though they were a call for using violence against civilians in the west, while they knew it was all about Kurdish Peshmerga and their struggle for freedom. They had nothing to do with any ‘global jihad’ activity.”[368]

Evidence of Unrelated Terrorism or Violence

The most frequent terrorism-related offenses—charges of providing material support to terrorism or terrorist organizations, or conspiracy—are extremely broad. A conspiracy charge in particular opens the door for the prosecution to introduce a range of disturbing evidence, including graphic images of terrorist attacks, about which the defendant may know nothing. Prosecutors in US terrorism cases have sought to establish knowing participation in a conspiracy by showing videos or websites found on defendants’ computers. Yet, often the videos have little relevance to the charges.

In the trial of Tarek Mehanna (see section III), the government presented a variety of inflammatory pictures to the jury: 28 different images of New York’s World Trade Center in flames, 33 video clips and 95 thumbnail photos, many of which were only found as cache files on Mehanna’s computer.[369] The prosecutors mentioned Osama Bin Laden 18 times before the close of the trial, even though there was no evidence presented of any relationship between Mehanna and Bin Laden.[370]

This tactic was particularly troubling in the case against the Fort Dix Five, where the prosecution showed numerous violent videos found on the defendants’ computers, alleging that defendants possessed and viewed the videos, without even attempting to show that the defendants intended to commit acts similar to those in the videos. A journalist observing the trial described the videos as follows:

The [sniper] video opens with several scenes of American troops in Iraq, moments before a sniper’s bullet cuts them down. Next comes a blaring air-raid siren, followed by still images of US troops lying on the ground or being dragged from the street, presumably dead or gravely wounded. Then Arabic singing fills the soundtrack as a montage of world leaders, including President Bush, former Secretary of Defense Donald Rumsfeld, and former British Prime Minister Tony Blair, appears on the screen. Crosshairs move across their faces, until gunshots are heard and a red dot appears on the forehead of each.[371]

The videos also depicted beheadings. In response to a defense motion, the judge ordered that the actual decapitations not be shown to jurors, for fear of unduly prejudicing them against the defendants.

Shain Duka, one of the defendants, described one juror reacting to a lengthy video of US soldiers being killed in battle by insurgent snipers. The juror “got up from her seat before exiting for the break, gave us all a stare of death, turned around and slammed the binder of transcripts… Her mind has shut down and she can’t judge correctly.”[372] Indeed, Juror No. 3 told the Philadelphia Inquirer that while she was watching the video of the sniper, “I thought I was seeing my son getting hit,” though she said jurors did not let their emotions affect their judgment.[373]

Selective Use of Informant Evidence

While most of the disturbing evidence introduced in the Fort Dix case came in through expert testimony, discussed below, another troubling aspect of the evidence adduced in the case involved the selective use of informant recordings. Informant Besnik Bakalli testified that after Dritan Duka watched a video of Anwar Al-Awlaki, the US-born Yemeni cleric who was killed by a US drone strike in September 2011, Dritan said he was “going to start something,” and that “we have enough people … you can do a lot [of damage] with seven people.”[374] But in later recordings, Dritan essentially retracted his statement, telling Bakalli that people are not allowed to train with terrorists, and that to him jihad meant not fighting, but spreading Islam. Dritan discussed the same Awlaki video mentioned above, and said “you listen to one [imam] and then you listen to another. You don’t know what to believe.”[375] The court refused to allow the additional recordings into evidence, reasoning that Dritan himself could testify if he wanted to rebut the initial recording. The ruling meant that if Dritan wanted to rebut the recording he would have to give up his right not to testify and expose himself to wide-ranging questioning from the government.[376]

Evidence Suggestive of Terrorism in Non-Terrorism Cases

Some of the most troubling evidence we examined was adduced in non-terrorism cases, where the government nevertheless sought to draw connections between the defendant and known terrorists or terrorist activities. The issue is closely tied to the government’s use of the Foreign Intelligence Surveillance Act (FISA) (see discussion below). For example:

Case of Pete Seda

In February 2005 the government charged Pete Seda (born Pirouz Sedaghaty) with conspiracy to defraud the US government and filing a false tax return, in connection with an investigation into Al-Haramain Islamic Foundation, a charity based in Saudi Arabia; in 2000, Seda had founded the Ashland, Oregon branch of Al-Haramain. Seda was living overseas at the time he was indicted 2005; he voluntarily returned to the US to face charges in August 2005. At the outset of the trial, the federal prosecutor stressed that the government was not seeking to hold Seda to account for any terrorism offenses.[377]

Yet the specter of terrorism permeated Seda’s trial. The government used as a demonstrative exhibit (it was never admitted into evidence) a 3 x 4 foot chart with photographs of Seda, his co-defendant Soliman al-Buthe, an Al-Haramain accountant from Saudi Arabia who was in Saudi Arabia at the time, and the Chechen mujahideen commander Ibn al Khattab, whom Seda had never met. [378] The government also elicited testimony about terrorism through the use of expert witness Evan Kohlmann (see below). The government’s theory was that Seda falsified his tax returns in order to funnel money to the Chechen Mujahideen.

One of Al-Haramain’s activities in the US was the distribution of Qurans and other religious material to US prisons. One version of the Quran that Al-Haramain distributed was called the Noble Quran and included a controversial appendix describing forms of jihad. The prosecutors argued that Seda shared the mindset of the authors of the index, which, the prosecutors claimed, called on prisoners to “Perform jihad against polytheists by wealth, body, and tongue.”[379] The judge did not permit Seda to introduce a volume of letters, articles, emails, and a book he had written about Islam that the defense argued would have countered the government’s portrayal of him “as a fundamentalist supporter of terrorism.”[380]

The Department of Justice touted Seda’s conviction as a success in the fight against terrorism. [381] In contrast, prominent local attorney and Muslim convert Tom Nelson described Seda’s trial as “Islamophobia on parade.” [382]

In August 2013, the Ninth Circuit Court of Appeals affirmed in part and reversed in part Seda’s conviction, ordering a new trial. [383] The opinion noted that Seda’s “tax fraud trial was transformed into a trial on terrorism.” [384] The court went on to note: “The appeal illustrates the fine line between the government’s use of relevant evidence to document motive for a cover up and its use of inflammatory, unrelated evidence about Osama Bin-Laden and terrorist activity that prejudices the jury.” [385]

Case of Mehrdad Yasrebi

Dr. Mehrdad Yasrebi, founder of Child Foundation, was charged with conspiring to defraud the Office of Foreign Assets Control (OFAC), the entity that enforces US economic and trade sanctions against other countries, including Iran. Yasrebi was initially charged with violations of the sanctions regime, as well as tax fraud and money laundering, though the indictment and superseding indictment remain sealed.[386] Though he was not charged with terrorism-related offenses, prosecutors attempted to draw connections between his charitable work and terrorism throughout the proceedings against him.

Child Foundation based in Portland, Oregon, provided education and assistance to impoverished children in Iran, and Yasrebi accordingly had significant communication with individuals in Iran. In September 2000, Yasrebi contacted OFAC to inform it of his work and request a determination that his work did not violate the sanctions regime. Yasrebi was aware of a similar charitable organization that received information from OFAC that its charitable donations to Iran did not violate OFAC regulations and was represented by the same attorney that had represented that organization.[387]

OFAC responded to Yasrebi’s correspondence by noting that filing a license application or requesting information—as Child Foundation had—did not excuse noncompliance, but did not tell Yasrebi or Child Foundation that a license was required. OFAC then transferred Child Foundation’s request to its Enforcement Division. While noting that the ordinary procedure would be to issue a demand letter, internal OFAC documents indicate that “[b]ecause of the criminal investigative interest by the US Attorney’s Office and US Customs Service in this matter, OFAC Enforcement will not proceed with the issuance of a demand letter.”[388] OFAC also found relevant that Child Foundation had submitted another request in October 2001. The government initiated surveillance of Yasrebi shortly after September 11—it is not clear whether his second letter triggered the surveillance.[389]

For eight years, US authorities amassed a mountain of evidence, none of which appears to have shown any support for terrorism. Yet the case was investigated by the Joint Terrorism Task Force and FISA was utilized (see below). Yasrebi ultimately pleaded guilty to conspiring to defraud OFAC and the Internal Revenue Service. Prosecutors repeatedly made reference to terrorism even though Yasrebi was never charged with any terrorism-related offense. The sentencing judge, District Judge Garr King, noted that even though the money Child Foundation sent to Iran was for humanitarian purposes, it “did violate the embargo in effect at that time.”[390] The prosecution sought a sentence of 30 months’ imprisonment in part because of the “national security” and “terrorism” implications of the case,[391]which the judge apparently rejected in imposing one year of home detention in which Yasrebi could go out in consultation with his probation officer.[392]

Yasrebi’s defense attorney, David Angeli, told us that he felt that once the government suspected terrorism it was unable to let go of the idea. Recognizing that the volume of money transferred to Iran ($10 million over several years) might reasonably arouse suspicion, he nevertheless felt that the government was unable to see the facts clearly:

[W]hen you commit to something like that, maybe it’s human nature that, even years later when [all the evidence shows otherwise,] that you just can’t back off, that you think, “We’ve got to get a return on our investment.” I really think that’s a lot of what’s going on here…. And the result is that these people’s lives are just being destroyed.[393]

Holy Land Foundation Case

In this case (see section III) the defendants were never accused of directly funding terrorist organizations or terrorist attacks, nor were the Palestinian charities they funded accused of doing so. Nonetheless, they were prosecuted on the notion that the social programs they financed help win the “hearts and minds” of Palestinian people for Hamas.

Former US Consul-General in Jerusalem Ed Abington told us that the United States Agency for International Development (USAID) had funded the same Zakat committees that the Holy Land Foundation (HLF) provided funding to, and that clearly the US government did not consider them fronts for Hamas. [394] Abington testified at both HLF trials. He testified about personally visiting Zakat committees, and noted that while some committees had members who were also members of Hamas, he did not believe the committees were controlled by Hamas. [395] Abington also testified that the Central Intelligence Agency (CIA) had assisted in the development of Palestinian security forces, and that Israel’s intelligence—on which much of the case was based—was not reliable. [396]

After the trial, the CIA sent Abington a letter saying he had spoken contrary to his obligation to keep information confidential, and that he could be prosecuted.[397] During the second trial, the CIA sent a lawyer to observe Abington’s testimony, and the judge provided less latitude, limiting the scope of his testimony about CIA involvement in Israel.[398]

Because the defendants were accused of ultimately supporting a structure that permitted Hamas’ military wing to engage in terrorist acts, the court admitted evidence pertaining to bombings committed by Hamas. It also admitted images of Palestinian school skits of suicide attacks with no relationship to the defendants, and images that were pulled from the defendants’ computers even though they were images that automatically download onto a user’s computer when viewing particular websites.[399]

Many US terrorism cases involve allegations that the defendant was either in contact with known terrorist groups (or believed he was when in fact he was communicating with an undercover agent or informant), or aspired to be associated with those groups. In order to prove a charge of providing material support for terrorism (discussed in section III), the prosecutors can introduce evidence of terrorist activities about which the defendant himself may have no knowledge.

They generally do so through the use of expert witnesses. Unlike eyewitnesses, expert witnesses have wide latitude to testify on matters about which they do not have firsthand knowledge. In particular with informant cases—in which the defendant may have believed he was in contact with a member of a terrorist group but actually was not—expert witnesses have provided evidence about terrorist groups about which the defendants themselves may have been entirely unaware.

One such expert witness who testified in nearly all the cases discussed in this report that went to trial is Evan Kohlmann. Kohlmann has testified as an expert in at least 24 federal cases and 2 military commissions. [400] While he wrote a thesis on Arab Afghans, Kohlmann does not speak fluent Arabic or any other language relevant to his research, meaning that his online research focuses on English-language material. [401] Nor does Kohlmann have an extensive history of travel to or field work in regions where Islamist armed groups operate. [402]

Yet Kohlmann’s testimony has been relatively wide-ranging, arguably far outside his areas of expertise. For example, while Kohlmann more typically testifies about Al-Qaeda, the district judge in Yassin Aref’s trial allowed him to testify about Jamaat-e-Islami (JEI) of Bangladesh, the Islamic Movement of Kurdistan, and other Kurdish groups. Kohlmann had 36 to 48 hours in which to prepare his written report, and during a deposition indicated that he did not know anything about the political situation in Bangladesh or the JEI of Bangladesh, including who its leaders were. [403] The Second Circuit Court of Appeals upheld the prosecution’s use of Kohlmann’s expert testimony, citing a “liberal standard for the admissibility of expert testimony.” [404] The appeals court reviewed the trial judge’s decision on an abuse of discretion standard, so Kohlmann’s testimony on JEI Bangladesh was admissible even despite his professed lack of knowledge about it.

Often, Kohlmann’s testimony reaches dramatic conclusions, suggesting that activities or materials linked to the defendants are characteristic of terrorism. When Kohlmann testified in the Seda case, which was later overturned and remanded for a new trial, he claimed that the former director of a Saudi charity had been an “old friend” of Osama Bin Laden’s in the 1980s. [405] The Ninth Circuit Court of Appeals noted that Kohlmann had no direct knowledge of the facts of the case. [406] In testifying at the Raleigh 7 case (discussed in section III), Kohlmann testified about the nature of homegrown terrorism without citation to any academic work or any known fieldwork analyzing the criteria for the development of homegrown terrorism. Nevertheless, he concluded that the defendants likely “fit the classic profile of contemporary violent extremists and that there is a high probability of the existence of a home-grown terrorist network.”[407]

Kohlmann believes that people overestimate the impact of his testimony and that his testimony is often useful to the defense as well as the prosecution. [408] Defense attorneys see it differently. Daphne Silverman, Barry Bujol’s attorney at sentencing, told Human Rights Watch:

Kohlmann is an expert in how to use the Internet, like my 12-year-old. He has found all the bad [stuff] about Islam, and testifies as if what he is reading on the Internet is fact. He was paid around $30,000 to look at websites, documents, and testify. [409]

She contrasted that with a judge’s denial of Bujol’s request to call a religious expert at trial, concluding, “The [imbalance] in expert testimony is an injustice that is really coloring these trials—you end up with just a government show.” [410]

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