July 21, 2014

Summary

Muslims are a fundamental part of the American family. In fact, the success of American Muslims and our determination to guard against any encroachments on their civil liberties is the ultimate rebuke to those who say that we’re at war with Islam.
—US President Barack Obama, May 23, 2013
This community is under siege. And even if they’re not under siege, they think they are.
—Tom Nelson, attorney, Portland, Oregon, August 13, 2012

Terrorism entails horrifying acts, often resulting in terrible losses of human life. Governments have a duty under international human rights law to take reasonable measures to protect people within their jurisdictions from acts of violence. When crimes are committed, governments also have a duty to carry out impartial investigations, to identify those responsible, and to prosecute suspects before independent courts. These obligations require ensuring fairness and due process in investigations and prosecutions, as well as humane treatment of those in custody.

However, since the September 11, 2001 attacks on New York and Washington, DC, the United States government has failed to meet its international legal obligations with respect to its investigations and prosecutions of terrorism suspects, as well as its treatment of terrorism suspects in custory.

This has been true with regard to foreign terrorism suspects detained at the US military detention center at Guantanamo Bay, Cuba, most of whom are being held indefinitely without charge. And, as this report documents, it is also too often true with regard to American Muslim defendants investigated, tried, and convicted of terrorism or terrorism-related offenses in the US criminal justice system.

This report examines 27 such cases—from initiation of the investigations to sentencing and post-conviction conditions of confinement—and documents the significant human cost of certain counterterrorism practices, such as aggressive sting operations and unnecessarily restrictive conditions of confinement. Since the September 11 attacks, more than 500 individuals have been prosecuted in US federal courts for terrorism or related offenses—40 cases per year on average. Many prosecutions have properly targeted individuals engaged in planning or financing terror attacks. But many others have targeted individuals who do not appear to have been involved in terrorist plotting or financing at the time the government began to investigate them.

Indeed, in some cases the Federal Bureau of Investigation may have created terrorists out of law-abiding individuals by conducting sting operations that facilitated or invented the target’s willingness to act. 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. In the case of the “Newburgh Four,” for example, a judge said the government “came up with the crime, provided the means, and removed all relevant obstacles,” and had, in the process, made a terrorist out of a man “whose buffoonery is positively Shakespearean in scope.”

In such instances, the government’s purpose appears to have been preventive: to root out and prosecute individuals it believes might eventually plan and carry out terrorism. To this end, it has substantially changed its approach, loosening regulations and standards governing the conduct of terrorism investigations.

While some of these cases involved foreign nationals and conduct overseas, or individuals who are not Muslim, many of the most high-profile terrorism prosecutions have focused on “homegrown” terrorist threats allegedly posed by American Muslims.

Human Rights Watch and Columbia Law School’s Human Rights Institute found that at times, in aggressively pursuing terrorism threats before they even materialize, US law enforcement overstepped its role by effectively participating in developing terrorism plots—in at least two cases even offering the defendants money to entice them to participate in the plot.

In theory, the defendants in these cases should be able to avoid criminal liability by making a claim of “entrapment.” However, US law requires that to prove entrapment a defendant show both that the government induced him to commit the act in question and that he was not “predisposed” to commit it. This predisposition inquiry focuses attention on the defendant’s background, opinions, beliefs, and reputation—in other words, not on the crime, but on the nature of the defendant. This character inquiry makes it exceptionally difficult for a defendant to succeed in raising the entrapment defense, particularly in the terrorism context, where inflammatory stereotypes and highly charged characterizations of Islam and foreigners often prevail. Indeed, no claim of entrapment has been successful in a US federal terrorism case to date. European human rights law—instructive for interpreting internationally recognized fair trial rights—suggests that the current formulation of the US defense of entrapment may not comport with fair trial standards.

Meanwhile, the law enforcement practices described in this report have alienated the very communities the government relies on most to report possible terrorist threats and diverted resources from other, more effective ways, of responding to the threat of terrorism. Its proclaimed success in convicting alleged terrorist conspirators has come with serious and unnecessary costs to the rights of many of those prosecuted and convicted, to their families and communities, to the public, and to the rule of law. Ultimately, these costs threaten to undermine the goal of preventing and effectively prosecuting and sanctioning terrorism crimes.

Our research explored cases from a chronological and geographic cross-section of the post-September 11 terrorism prosecutions. Cases spanned the months immediately after the September 11 attacks to more recent indictments, in order to explore which trends, if any, persisted or developed over time. We also sought cases from across the United States to examine the impact of such prosecutions on various American Muslim communities and to account for regional investigative and prosecutorial differences. Cases include prosecutions for material support and conspiracy, some resulting in sentences of more than 15 years or life imprisonment.

These cases do not constitute a representative sample that would allow us to generalize about all federal prosecutions, but they raise troubling questions about the fairness and effectiveness of many of the policies, practices, and tactics employed by the Federal Bureau of Investigation (FBI), the Justice Department, and the Bureau of Prisons in terrorism cases.

In some cases, the unfairness arises from the application of certain laws, some of which Congress greatly expanded after September 11, including material support laws, the Foreign Intelligence Surveillance Act, and the Classified Information Procedures Act.

Human Rights Concerns

We documented the following patterns that raise serious human rights concerns:

  • Discriminatory investigations, often targeting particularly vulnerable individuals (including people with intellectual and mental disabilities and the indigent), in which the government—often acting through informants—is actively involved in developing the plot, persuading and sometimes pressuring the target to participate, and providing the resources to carry it out.
    • Use of overly broad material support charges, punishing behavior that did not demonstrate intent to support terrorism.
    • Prosecutorial tactics that may violate fair trial rights, such as introducing prejudicial evidence—including evidence obtained by coercion, classified evidence that cannot be fairly contested, and inflammatory evidence about terrorism in which defendants played no part; and limited ability to challenge surveillance warrants due to excessive government secrecy.
    • Harsh and at times abusive conditions of confinement, which often appear excessive in relation to the security risk posed. These include:
      • Prolonged solitary confinement and severe restrictions on communicating in pretrial detention, possibly impeding defendants’ ability to assist in their own defense and contributing to their pleading guilty.
      • Excessive lengthening of sentences and draconian conditions post-conviction, including prolonged solitary confinement and severe restrictions on contact with families or others, sometimes without explanation or recourse. One detainee called it “a touch of hell”: “My children… could see, but not touch me as though I had some sort of contagious disease.”

Taken together, these patterns have contributed to cases in which individuals who perhaps would never have participated in a terrorist act on their own initiative and might not even had the capacity to do so, were prosecuted for serious, yet government-created, terrorism plots.

In other cases, people who contributed to charities in the Middle East ended up convicted of “material support” based on flimsy connections to alleged terrorism.

Illustrative examples of the cases documented in this report include:

  • Targeting People with Mental or Intellectual Disabilities in Stings— Rezwan Ferdaus: Although an FBI agent even told Ferdaus’ father his son “obviously” had mental health problems, the FBI targeted him for a sting operation, sending an informant into Ferdaus’ mosque. Together, the FBI informant and Ferdaus devised a plan to attack the Pentagon and US Capitol, with the FBI providing fake weaponry and funding Ferdaus’ travel. Yet Ferdaus was mentally and physically deteriorating as the fake plot unfolded, suffering weight loss so severe his cheek bones protruded, loss of bladder control that left him wearing diapers, and depression and seizures so bad his father quit his job to care for Ferdaus. He was eventually sentenced on material support for terrorism and explosives charges to 17 years in prison with an additional 10 years of supervised release.
  • Use of Evidence Obtained by Coercion—Ahmed Omar Abu Ali: Abu Ali, a US citizen, was swept up in a mass arrest campaign in Saudi Arabia in 2003. Ali alleged being whipped, denied food, and threatened with amputation, and ultimately provided a confession he says was false to Saudi interrogators. Later on trial in Virginia, the judge rejected Ali’s claims of torture and admitted his confession into evidence. He was convicted of conspiracy, providing material support to terrorists, and conspiracy to assassinate the president. He received a life sentence, which he is serving in solitary confinement at the supermax prison in Florence, Colorado.
  • Abusive Detention Conditions—Uzair Paracha: Uzair Paracha was held in solitary confinement for nearly two years before he was convicted on charges of material support. Nine months after his arrest and while he was refusing to take a plea deal, the federal government moved Paracha to a harsh regime of solitary confinement pursuant to Special Administrative Measures (SAMs)—special restrictions on his contact with others imposed on the grounds of protecting national security or preventing disclosure of classified material—ostensibly due to ties with Al-Qaeda. For a time, Paracha was only permitted to speak to prison guards. “You could spend days to weeks without uttering anything significant beyond ‘please cut my lights,’ ‘can I get a legal call/toilet paper/a razor,’ etc., or just thanking them for shutting our light,” he wrote to us. After he was convicted, the SAMs were modified to permit him to communicate with other inmates. “I faced the harshest part of the SAMs while I was innocent in the eyes of American law,” he wrote.
  • Ignoring Alternative Solutions and Adverse Impact on American Muslim Communities—Adel Daoud: Adel Daoud was 17 years old when undercover FBI employees began communicating with him through an online Islamic forum. At the time, Daoud was a reclusive student at an Islamic high school in a Chicago suburb, spending most of his time on the computer in his parents’ basement. He sought guidance from his parents about terms like jihad that he was reading about online; they told him jihad meant the struggle to be supportive of your parents. Yet online, undercover FBI employees slowly cultivated a fake plot with Daoud to attack a bar in downtown Chicago. Daoud’s arrest in fall 2013 shocked his community and others in the Chicago area, prompting speculation about why the FBI deployed undercover agents to ensnare the teenager, rather than contact his parents or community leaders. “These kids don’t wake up one day and decide, ‘I’m going to blow society up,’” a Muslim community advocate in Chicago told us, pointing out that just as some teenagers begin to turn to drugs, others may go online and start exploring extremist websites. Daoud’s trial is scheduled for November 2014.

While we examined more than two dozen specific cases in-depth, we also conducted a statistical analysis of the 494 cases the Justice Department identified as relating to international terrorism for the period from September 11, 2001 to December 31, 2011. Among the 494 cases examined, there were 917 separate convictions. The two most frequent offenses, “Providing Material Support” and “Conspiracy,” account for more than 1 in 4 of the convictions. The analysis examines the numbers and percentages of convictions secured through pleas or trials as well as the sentences that were meted out for certain offenses or combinations of offenses. While we documented problematic practices in 27 specific cases, others of the 494 raise similar concerns.

Adverse Impact on American Muslim Communities, Law Enforcement

The cases we examined—and the hundreds of other terrorism prosecutions in the US since the September 11 attacks—have not occurred in a vacuum. At the same time as the government has aggressively sought out terrorism suspects, sometimes before the individual concerned has expressed any intention to use violence, it has sought to build relationships with American Muslim community leaders and groups, believing they are critical sources of information to prevent terrorist attacks.

It has also sought to build American Muslim communities’ sense of cohesion and trust in law enforcement, as part of a strategy for what it calls “Countering Violent Extremism.” However, many of the practices described in this report are counter to the goals of these policies: in some communities, they have led to anxiety and a fear of interacting with law enforcement.

Some Muslim community members said that fears of government surveillance and informant infiltration had negatively transformed the quality of the mosque from a place of spiritual sanctuary and togetherness to one of vigilance. Now, they said, they must watch what they say, to whom, and how often they attend services.

The impact on communities and individuals is not uniform. Many advocates and community leaders said they continue to have strong relationships with local law enforcement. But with some American Muslims less willing to reach out to law enforcement, the FBI’s goal of learning of potential terrorist plots before they progress may have been thwarted by its own abusive investigation tactics.

There are significant changes that the US government can implement immediately to reduce the rate of people being prosecuted with little or no evidence of intent to engage in terrorism, and to improve their relationships with American Muslim communities. These include:

Key Recommendations to the US Federal Government

  • Restrict the use of informants and ensure the practice is subject to robust oversight. Informants should not be sent into community or religious institutions in pre-investigation stages before there is particularized suspicion of wrongdoing.
  • Develop rights-respecting partnerships with local community groups and support community-driven programs as an alternative to aggressive investigations that can lead to abuses and end up doing more harm than good.
  • Ensure that prosecutors do not charge individuals or groups for providing material support based on activity protected under freedom of expression principles of international human rights law.
  • Ensure humane prison conditions, and do not subject prisoners to prolonged solitary confinement.