July 21, 2014

Methodology

This report is primarily based on interviews conducted between April 2012 and February 2013, information obtained from Freedom of Information Act (FOIA) requests, court documents, and other publicly available sources.

Human Rights Watch and Columbia Law School’s Human Rights Institute conducted more than 215 interviews with individuals charged or convicted of terrorism-related crimes, members of their families and members of their communities, criminal defense attorneys, judges, current and former federal prosecutors, government officials, academics, and other experts.

In choosing which cases to investigate, we sought to explore cases that represented a cross-section of the post-September 11 terrorism prosecutions, ranging in time, geography, and type of investigation. We chose to examine cases that spanned the timeline from the months immediately after the September 11, 2001 attacks to those in which defendants were only recently indicted, in an effort to explore the broadest possible post-9/11 timeframe. Of the 27 cases we examined, 10 involved indictments before 2006, 10 involved indictments between 2006 and 2009, and 8 involved indictments since 2010. We sought cases from across the United States, in order to include the various narratives of Muslim communities and account for regional investigative and prosecutorial differences. Our cases generally fell into four regional clusters— northeast, midwest, south, and northwest—both for ease of research and to allow for in-depth examination of particular communities. We spoke with families and community members in 10 cities, frequently accounting for multiple Muslim communities within each city.

We closely reviewed 27 federal prosecutions that involved 77 total defendants by examining publicly available court documents recovered from public databases or defense counsel records. Of these 77 defendants, we examined in-depth the experiences of 42. We sought to speak with each individual, but were sometimes advised by defense counsel or families to refrain from corresponding with defendants due to ongoing litigation or for other reasons. In all 20 cases where litigation was no longer ongoing, or in which defense counsel or family assented to our requests for interviews, we sought access from the Bureau of Prisons to a confidential in-person interview with detained individuals. We were granted access to four individuals. In denying two of our access requests, the Bureau of Prisons advised us to submit new requests detailing our research protocols, which we did in March and June 2013. We received no response.

Where the Bureau of Prisons denied our request to interview detained individuals, we sought to correspond with them by letter, email or telephone, and corresponded with an additional 12 detainees in this way. We also continued correspondence with two detainees with whom we were able to speak in person. In addition to our communication with defendants currently in Bureau of Prisons facilities, we interviewed in person three defendants who had completed their sentences in federal prison or who were held at a detention facility other than a federal prison.

For the 42 individuals involved in cases examined in this report, we conducted in-depth interviews with a total of more than 123 people, including defense counsel, family members, friends, defense experts, and representatives from civil society organizations that work on issues directly related to these cases. In addition, we requested interviews with prosecutors in 22 cases: three current prosecutors and four former prosecutors agreed to speak with us. The remainder either turned down or did not respond to our request.

While we attempted to speak with community members in most cities, mosque attendees were often reluctant to speak for fear of surveillance or government scrutiny for any association with the cases we were examining. When necessary, we provided family members and congregants the opportunity to be interviewed by us without providing a last name.

In each of the 27 cases that form the basis of this report, we obtained publicly available court records from Public Access to Court Electronic Records (PACER); occasionally we received copies of publicly filed court records from defendants, family members or their counsel.

For information on detention conditions, we documented the experience of solitary confinement for 32 individuals charged with or convicted of terrorism offenses or alleged to be involved in terrorism. Twenty-four of those individuals were held in solitary confinement prior to their conviction; 8 were held in solitary post-conviction. We also documented the experiences of 14 current or former Communications Management Unit (CMU) detainees in person, or via email or by telephone, and 6 individuals subjected to Special Administrative Measures (SAMs).

To account for the almost 500 cases that the National Security Division of the Department of Justice (DOJ-NSD) considers “terrorism or terrorism-related” prosecutions, we also conducted a statistical analysis of these cases using publicly available government and court records. On June 6, 2012, pursuant to a FOIA request, the DOJ-NSD released its most updated version of its chart of terrorism or terrorism-related crimes, documenting basic criteria of these cases. Those 494 cases span from September 11, 2001 to December 31, 2011.[1] The chart only includes those cases resulting in convictions.[2] In order to gauge statistical correlations across criminal charge, sentence, and detention conditions, we disaggregated the information from the static chart and input it into a database for analysis with additional information obtained from a variety of primary sources including: each case’s docket, the indictment or superseding indictment in the case, and the judgment entry in the case, when those documents were available. Detention status and location for each defendant were cross-checked with the Bureau of Prison’s Inmate Locator service between the dates of July 23, 2013 and July 25, 2013. Where relevant, those statistics were integrated into this report. That data is also publicly available online at http://www.bop.gov/inmateloc/.

We pursued requests under the Freedom of Information Act from the Bureau of Prisons, the Federal Bureau of Investigation, and the Department of Justice National Security Division. We met with the FBI and DOJ-NSD in person, and conducted written correspondence. We submitted written questions to DOJ-NSD on February 25, 2013, which were answered in writing on May 23, 2013 (see Appendix - D). After an initial meeting with the FBI’s Office of General Counsel and Office of Public Affairs, we submitted written questions to the FBI on November 21, 2012 (see Appendix - D). Between November 2012 and May 2013, we followed up with the FBI General Counsel’s office eight times and received five emails assuring us that our questions were under review and that responses were being prepared or finalized. At time of writing, the FBI has not provided answers to our questions or formally declined to respond to our letter. We shared a copy of this report with DOJ-NSD and the FBI prior to publication.

All interviews were conducted in English when possible, with Arabic or Urdu used in four cases, via translator. All participants were informed of the purpose of the interview and consented orally or in writing. No interviewee received compensation for providing information. Where appropriate, Human Rights Watch and Columbia Law School's Human Rights Institute provided interviewees with contact information for organizations providing legal, counseling or social services.

[1] In 2012, Human Rights First received these updated statistics from the Department of Justice through a Freedom of Information Act request, “Let the Numbers do the Talking: Federal Courts Work [Infographic],” Human Rights First press release, July 12, 2012, http://www.humanrightsfirst.org/press-release/let-numbers-do-talking-federal-courts-work-infographic (accessed June 18, 2014) ; US Department of Justice, National Security Division, “Introduction to National Security Division Statistics on Unsealed International Terrorism and Terrorism-Related Convictions,” June 6, 2012, http://www.fas.org/irp/agency/doj/doj060612-stats.pdf (accessed June 18, 2014).

[2] DOJ-NSD makes a distinction between “international terrorism” and “domestic terrorism,” and crimes related solely to domestic terrorism are explicitly excluded from its chart. See US Department of Justice, National Security Division, “Introduction to National Security Division Statistics on Unsealed International Terrorism and Terrorism-Related Convictions,” http://www.fas.org/irp/agency/doj/doj060612-stats.pdf (accessed June 28, 2014), pp. 1-2.