July 21, 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 defense 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 defense 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 traveled 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 preexisting 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.

Vulnerable Targets: Individuals Seeking Religious Guidance

In some cases we examined, a government agent appears to have taken on the role of a religious authority figure for a target who was searching for guidance about Islam because he was young, a recent convert, or socially outside the mainstream Muslim community due to race or ethnicity.

These cases are particularly troubling to many in American Muslim communities, where members feel law enforcement is exploiting the very paranoia described in detail in section VII. In some cases, the FBI employed versions of Islam when interacting with the target that led targets towards specific mindsets and actions. For example:

Case of the Fort Dix Five:

According to his family and friends, Mohammed Shnewer, who was 19 years old when informant Mahmoud Omar first approached him, was a loner.[141] Omar was 40 years old and exerted a powerful influence over Shnewer as the two became friends. He hounded Shnewer to collect and burn to DVD videos depicting jihad-oriented violence; he even purchased, with FBI funding, a DVD burner for Shnewer.[142]

The fact that Shnewer watched these videos with the informant, and the existence of some of the violent videos themselves, was used against Shnewer at trial. Omar also regularly initiated conversation about politics, and encouraged Shnewer to turn from non-violent actions, like prayer, to action. In an August 1, 2006 recorded discussion between Shnewer and Omar, Shnewer brought up the conflict in Chechnya. Omar said, “Well then, what shall we do?” Shnewer, suggesting prayer, replied, “Call upon our lord.” Omar replied, “Should we pray only, Mohamed?” Omar also rejected Shnewer’s suggestion to provide charity and continued to push Shnewer to suggest something more tangible. Under Omar’s persistent pressure, Shnewer suggested a potential target to the informant: “If you want to do anything, there is Fort Dix.”[143]

Eventually, Mohamed Shnewer and four others were indicted in 2008 for conspiracy to murder members of the US military and possession of firearms.[144] On December 22, 2008, all five men were convicted; Shnewer was sentenced life in prison.[145]

Case of Barry Bujol:

Bujol was raised in a devout Baptist family in Louisiana. He converted to Islam as a student at Prairie View A & M. Tariq Ahmed, a lawyer with the Muslim Civil Liberties Union (MCLU) in Houston, told us that “Bujol was sincerely thinking about Islam and his obligations when he came about the topic of jihad,” but he couldn’t get answers from the local community, which feared that the African-American convert might be an informant (another member of their community, Adnan Mirza, had been recently investigated and prosecuted—his case is also discussed in this report).[146]

In mid-2008, FBI agents pursuing a tip about someone else came across Bujol’s email address and found that he had been in contact with Anwar Al-Awlaki—an alleged leader of Al-Qaeda in the Arabian Peninsula (AQAP), which is based in Yemen, and an American citizen, killed by a US drone strike in 2011.[147] Bujol had reached out to Al-Awlaki after listening to one of his earlier recorded CD sermons. Al-Awlaki forwarded to Bujol his book 42 Ways of Supporting Jihad.[148] Bujol responded at least three times seeking further guidance.[149]

After placing Bujol under extensive surveillance for more than a year,[150] in about November 2009 the FBI planted a Muslim of Arab descent as a confidential informant (CI) in a jail cell alongside Bujol, who had been picked up for outstanding traffic tickets.[151] Bujol and the informant stayed in contact, and the informant told Bujol he was an operative for AQAP. MCLU attorney Ahmed raised concerns about the informant’s profile and his relationship with Bujol:

From the very first recording you hear the CI asking questions about Islam, and you have Barry giving perfectly acceptable [non-violent]… responses. And the CI’s instinct is to correct Barry. You can almost see Barry’s face, he doesn’t resist, he just accepts it and tries to justify or accept what the CI said was the correct answer.… The effect on Barry was profound. Someone was finally willing to answer his questions.[152]

Daphne Silverman, Bujol’s attorney at sentencing, said the informant encouraged Bujol to turn from “defensive jihad,” related to the self or community, to “offensive jihad,” marked by proactive violence. “Barry had always believed he had to participate in defensive jihad, but the CI told him he has to do this,” she said.[153] Also, despite the FBI’s instructions, the informant offered Bujol a job and gave money to his wife, telling him that “people” would support her while Barry was overseas.[154]

Mark Wells White, a federal prosecutor on the Bujol case during the investigation and original plea negotiations, disputed any concern about the FBI’s investigative tactics: “Why did your guy get a bunch of stuff from [someone who said he was] an AQAP operative? Why did he get on a boat?”[155] White also defended the informant’s conduct as “rapport-building.”[156] White explained, “Barry was asking him questions [about religion, jihad], and the CI has to answer. He can’t blow his cover.”[157] But several defense advocates told us that the CI’s responses did not accurately represent the mainstream Muslim advice that Bujol would have gotten had community members been available and willing to talk.[158]

With the encouragement of the government informant, Bujol eventually agreed to participate in a plot. A SWAT team arrested Bujol in May 2010 when, using a false ID provided by the informant, Bujol tried to board a ship with money, army manuals, phone cards, and GPS units that the informant told him to carry to an AQAP contact in Algeria.[159] Bujol was arrested, and, after a bench trial, sentenced to 20 years in prison for attempting to provide material support to AQAP and aggravated identity theft.[160]

Informants Ignoring Targets’ Reluctance to Engage in Terrorism

In several of the cases we examined, after identifying their targets and cultivating them over months of close, intimate interaction, government agents proposed new theories, ideas or—eventually—plots to see if their targets might take the bait. If they did, the government appears to have considered itself vindicated in its early assessment of the individual’s underlying threat.

The government appears unconcerned with whether these individuals would have actually had the interest, commitment, and ability to plan terrorist attacks without informants’ aggressive recruitment or cultivation. On the contrary, in some cases where the defendant initially or repeatedly expressed a reluctance to engage in violence generally or even, in a planning stage, to go through with the plot, informants ignored those statements and instead pressed them to stay with the plot. For example:

Case of Shawahar Matin Siraj:

There are many indications that Siraj was hesitant to carry out the bombing in the days immediately leading up to it. When Eldawoody drove Siraj toward the 34th Street subway station where he would instruct Siraj to place false explosives in garbage cans, Eldawoody asked Siraj if he was committed to their plan. Siraj said he would not participate if the situation seemed dangerous.[161] “I have to, you know, ask my mom’s permission. Every single thing matters, you know?”[162] said Siraj (who, as previously noted, was found to have impaired critical thinking skills and diminished judgment). Siraj also emphasized that he would prefer to be a lookout to placing what he believed to be explosives in the subway.[163] When the informant asked, “You willing to do it?” Siraj responded: “I will work with those brothers, that’s it. As a planner or whatever. But to putting them there? I’m not sure. I have to think about it.”[164]He was arrested a week later.

Case of the Newburgh Four

Early in their relationship, James Cromitie was quick to engage the informant, Hussain, in hateful rhetoric and to fabricate lofty stories of past violence, including tall tales that involved shooting a drug-dealer’s son and firebombing NYPD stations.[165] Still, the informant had to expend considerable efforts to overcome Cromitie’s resistance to using violence.[166] For months, the informant encouraged Cromitie to turn his tough talk into action, but Cromitie refused,[167] even, initially, upon the offer of valuable incentives.[168] In many of their conversations, the informant responded to Cromitie’s expressions of anger by urging him toward violence in the name of Islam.[169] Cromitie, however, repeatedly explained that it was not for him to act since “Allah will take care of it.”[170] At one point, when the informant continued to insistent on jihad, Cromitie responded that dying like martyrs is “not gonna change anything.”[171] As the trial judge, District Judge Colleen McMahon, noted in her decision:

Hussain tried to coax Cromitie into participating in a jihadist event by suggesting that he would be rewarded in the afterlife. But the promise of Paradise proved insufficient to get Cromitie to take any affirmative steps toward planning a jihadist attack. On December 10, Hussain pointed this out to Cromitie; defendant responded, “Maybe it’s not my mission then. Maybe my mission hasn’t come yet.”[172]

Even after the informant offered Cromitie $250,000 to carry out an attack, Cromitie appeared hesitant and disappeared for six weeks, refusing to speak to the informant, despite the informant’s constant efforts to contact him. Cromitie sold a $200 camera that the informant had bought him for surveillance of Stewart Air Base for around $60.[173] But he had lost his job at Walmart, and eventually returned to the informant, who reiterated his offer. In the same conversation, the informant told Cromitie that he was concerned for his own safety, and hinted that harm could come to Cromitie as well if he failed to engage in a terrorist attack.[174] Cromitie then said he was willing to go forward with Hussain’s plan, but he did not want anyone to get hurt.[175]

Informants Playing Key Roles in Generating or Furthering the “Plot”

In the cases examined, we found that informants not only encouraged targets to engage in violence, but came up with the “plot” themselves, and provided the targets with the means to carry it out. For example:

Case of Newburgh Four:

In this case, the FBI informant came up with a plot to detonate explosives near a synagogue in the Bronx and to shoot military targets at Stewart Air National Guard Base in Newburgh, New York. He also played a primary role in preparing the plot and inducing action (including through the offer of substantial financial rewards) by the defendants. As Judge Reena Raggi put it in reviewing the case on appeal at the US Court of Appeals for the Second Circuit, “The government came up with the crime, provided the means, and removed all relevant obstacles.”[176]

Indeed, Cromitie was not even able to buy a gun in Newburgh, although Hussain, the informant, had asked him to do so more than a dozen times.[177] Hussain had to choose the targets, provide the plot and the weapons, and direct the recruitment of the other participants. He even had to drive them from place to place in order for them to carry out the simple missions he assigned them, such as photographing the targets and “inspecting” the weapons.[178] As trial judge McMahon put it:

The essence of what occurred here is that a government, understandably zealous to protect its citizens from terrorism, came upon a man both bigoted and suggestible, one who was incapable of committing an act of terrorism on his own.… I suspect that real terrorists would not have bothered themselves with a person who was so utterly inept. … Only the government could have made a terrorist out of Mr. Cromitie, whose buffoonery is positively Shakespearean in scope.[179]

Despite her strong statement, McMahon sentenced each of the defendants to 25 years in prison, based on a mandatory minimum required for Hussain’s plot to target a military target (see section V).[180]

Case of Rezwan Ferdaus:

As previously noted (see above), Rezwan Ferdaus appeared to have suffered from physical and mental disabilities that raise serious doubts as to whether he would have been capable of carrying out the plots he was charged with. Miriam Conrad, the Boston federal defender and Ferdaus’s attorney through sentencing, explained that since Ferdaus had no money, the preparation and materials for the plot for which he was arrested—to attack the Pentagon and Capitol building—were all provided or financed by the undercover employees:

At the time he was in contact with the informant and the undercover [agent] he was living at home with his parents in Ashland and he didn’t have a car, he didn’t have any money and he didn’t have a driver’s license because he owed $100 and he didn’t have $100 to pay off the fine. In various parts of the investigation he didn’t have a laptop and he didn’t have a cellphone. At one point the informant gave him a cell phone.[181]

Case of Adnan Mirza:

For his entire five years in Houston, Mirza was an active member of the Muslim community, working to bridge gaps with non-Muslims in southeastern Texas by serving the needy,[182] and was part of a group that provided cultural sensitivity training to the Houston Police Department about Islam.[183]

In 2004, Customs and Border Patrol officials in Big Bend National Park stopped two of Mirza’s friends in a car, and found weapons. The FBI interviewed both friends; one of them was Jim Coates—who worked with Mirza on the “Why Islam” campaign that sought to educate people about Islam to reduce negative stereotypes and perceptions.[184] Coates agreed to become a paid informant for the FBI. In 2005, the government introduced an undercover agent named “Malik Mohammed” to the group of Coates, Mirza, and co-defendant Kobie Williams. Mohammed posed as someone with a military background who specialized in teaching hand-to-hand combat.[185] The group regularly went to a camping area in Willis, Texas, where they barbecued, shot at a shooting range, and engaged in discussions on a variety of topics, ranging from women to group travel to Afghanistan.[186] Based largely on their conversation, the prosecution in the case against Mirza alleged that these were “training camps” to prepare Mirza and his friends to go to Afghanistan and fight against US forces.[187]

According to the defense and Mirza’s acquaintances, though, these activities were far less menacing—little more than men going camping, with the shooting and “military training” sessions suggested and encouraged by the FBI agents. Mirza’s attorney, David Adler, told Human Rights Watch that even at the most egregious moments of discussion, it seemed to him “similar to rednecks sitting around talking about the IRS.”[188]

Nonetheless, Mirza was eventually charged with eight counts of weapons charges and one count of conspiracy to provide material support.[189] According to the prosecution, Mirza was the ringleader in collecting around $1,000—provided by the FBI agents and co-defendant Williams—that he handed to a middleman with the intent that it go to families of Taliban fighters.[190] According to the defense at trial and several of Mirza’s acquaintances, the money was intended for a hospital in Pakistan. On cross-examination, the FBI agent admitted that Mirza never made a recorded statement about wanting the money to go to the Taliban; however, there were recorded statements about the money going to a hospital or to families in Pakistan.[191] The prosecution argued, through recordings of the group’s conversations, that the hospital was a cover for getting the money to the intended beneficiaries: the Taliban or the Taliban’s families.[192]

The remaining eight counts related to the handling of various guns and ammunition. For all but one of the gun-related charges—a shotgun Mirza personally owned—the possession occurred because the FBI agents brought the guns to the camping sites and provided them to Mirza to fire.[193]

According to an FBI agent’s own testimony, there was no evidence that Mirza wanted to practice shooting before the FBI informant came up with the idea.[194] There was no evidence Mirza was interested in meeting someone with a military background before the FBI introduced an undercover agent with that profile.[195] Coates, the paid informant, appears to have initially suggested the idea of traveling overseas.[196] The informant and FBI undercover agent directed all aspects of the training.[197] And the FBI agents then handed Mirza the guns, and encouraged him to shoot the guns, that would provide the basis for many of the later charges against him.

On November 28, 2006, Mirza was arrested. After a four-day trial, the jury found Mirza guilty of all nine counts. He was sentenced to 15 years in prison.

Involving Third Parties in Conspiracies: The Case of the Fort Dix Five

Mohamad Shnewer, Serdar Tatar, and the brothers Dritan, Eljvir, and Shain Duka were indicted in 2007 for conspiracy to murder members of the US military and possession of firearms. [198] Then-US attorney Chris Christie (now governor of New Jersey) praised law enforcement efforts as though a genuine plot had been stopped by detective work. [199]

In fact, the investigation involved two paid informants, more than a year of fruitless surveillance, and the dubious linking of an illegal gun purchase to a plot of which only two of the defendants were aware. After pressing 19-year old Mohammed Shnewer to come up with a plot to attack Fort Dix, the informant, “Mahmoud Omar,” said they would need more support to pull off an attack. [200] Shnewer offered to recruit the Duka brothers, but there is no indication that the informant Omar or a second informant on the case, Besnik Bakalli, ever spoke directly with the Dukas about an attack. At trial, Omar stated that he did not believe the Dukas knew about the Fort Dix plot. [201] Instead of direct conversation with the Duka brothers, Omar would inquire with Shnewer to the progress of the recruitment, and Shnewer would give alternating reports of progress. These conversations occurred in Arabic, which the Duka brothers do not speak.

The informant Omar also cultivated a relationship with defendant Serdar Tatar. Tatar was suspicious of the informant and reported him as a potential terrorist threat to a Philadelphia police sergeant who frequented the 7-Eleven convenience store where Tatar worked. [202] The police officer helped Tatar report Omar to the FBI. [203] However, Tatar ultimately provided Omar a map of Fort Dix which he had because his father’s pizza shop delivered to it. [204] It is unclear why Tatar provided the map to Omar.

Tatar aspired to become a law enforcement officer himself, and was in the process of applying to multiple police departments. [205] A month passed between the time Omar first requested the map, and when Tatar actually gave it to him. Tatar claims that by stalling and eventually providing the map to Omar, he was attempting to support law enforcement efforts. [206] Tatar, for example, had made recordings of Omar at their mosque, which he attempted to present to the FBI. [207]

During the same period, the FBI deployed another informant named Besnik Bakalli, who befriended the Duka brothers. [208] Bakalli pretended to be seeking guidance on Islam and help in turning his life around. [209] The Duka brothers embraced Bakalli, a fellow Albanian, as someone who needed assistance and a sense of family. [210] As their relationship developed, Bakalli repeatedly asked the brothers about jihad, and whether it included violent acts. The brothers repeatedly told Bakalli that jihad was non-violent struggle to sustain their families and livelihood in the US. [211]

Bakalli also accompanied the brothers on paintball trips in the Poconos and Cherry Hill. On one trip during a holiday weekend in 2006, Bakalli asked each brother, “We’re training, right?” According to the brothers, they answered no and were surprised at the question. [212] However, at trial their paintball trips were used to support the government’s claim that they were training for jihad. [213] The recordings of the informant’s conversations, inexplicably, leave off the period of time during which these particular conversations occurred.

In addition to the illegal gun sale, the government's case against Tatar and the Dukas was based on various pieces of evidence introduced at trial, including videos of attacks on US troops abroad found on Mohammed Shnewer's laptop, which prosecutors claimed served as inspiration and guidance for the Fort Dix operation. Prosecution expert witness Evan Kohlmann (see section IV) tried to connect these videos with the paintball and trips to the Poconos; he also tried to portray the acquisition of guns as evidence of jihadist activity. None of the prosecutors in the case responded to requests for comment.

All five men were convicted on December 22, 2008. Mohamad Shnewer and two of the Duka brothers were sentenced to life plus 30 years; Eljvir Duka was given a life sentence, and Serdar Tatar was sentenced to 33 years. [214]

Informants with Criminal Histories

In the cases we reviewed, the FBI frequently used informants with criminal records who were known to be unreliable witnesses who engaged in highly questionable tactics.

The most notable example is Shahed Hussain, informant in the Newburgh Four and Yassin Aref cases, who admitted at one trial that by the time he was recruited by the FBI he had committed no fewer than 50 frauds.[215] In the case of the Newburgh Four, as noted above, Hussain offered James Cromitie $250,000 to carry out a plot, apparently without authorization of his FBI handlers.[216] The trial judge concluded that Hussain committed perjury at the trial, though the appeals court concluded that Hussain’s perjury did not affect the verdicts because his testimony was immaterial.[217] Hussain also admitted on cross-examination at the Newburgh trial that he had lied to his FBI handler about a conversation with a defendant on at least one occasion.[218] Yet the FBI continued to use him as an informant, including for a third sting operation in Pittsburgh.[219]

Other informants with criminal histories included “Khalil,” informant in the Ferdaus case, and Mahmoud Omar, informant in the Fort Dix case.[220]

Human Rights Concerns

The FBI investigation tactics described in this section raise serious human rights concerns, including discriminatory treatment on the basis of the target’s protected political and religious expression and association, and violation of the right to fair trial due to criminal entrapment.

Under international law, a government may restrict freedom of association, expression or privacy for national security purposes within strict limitations.[221] However, a government may never do so in a discriminatory manner.[222]The UN Human Rights Committee, the international body of experts that monitors state compliance with the International Covenant on Civil and Political Rights (ICCPR), has repeatedly highlighted that restrictions on freedom of expression and privacy must be necessary to achieve a legitimate aim, and be proportionate to the aim pursued.[223]

Pursuing sting operations on the basis of individuals’ religious practice or political beliefs violates the obligation under international law that investigations and prosecutions be impartial, and conducted in a non-discriminatory fashion.[224] Such investigations may also have a chilling effect on others’ exercise of their basic rights.  

What Constitutes Entrapment?

The United States is obligated to provide criminal defendants with fair trials, both under US constitutional law and international human rights law.[225] So-called entrapment—where the government creates the opportunity for criminal activity, encourages an otherwise law-abiding person to engage in it, and then prosecutes him for it—may violate fair trial rights. US law allows criminal defendants to raise the affirmative defense of entrapment, but may not adequately protect their rights to fair trials.

Under US law a defendant can avoid criminal liability by showing both that the government induced him to commit the act in question and that he was not “predisposed” to commit it.[226] 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. In effect, it asks whether the government induced a good person or a bad one, and leaves that character determination to the jury.[227] 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.[228]

In several cases we examined, political and religious views often appear to have been the primary “predisposition” leading authorities to conduct prolonged sting operations in which the authorities played a significant, if not leading, role in planning and financing the ultimate plot, raising serious fair trial concerns. For example, in the Matin Siraj case (see section IV), the evidence submitted by the prosecution to prove Siraj’s predisposition included a range of political statements including his empathy for Palestinian suicide bombers living under occupation, and his fascination with Osama Bin Laden. Particularly given the heightened jury emotions in terrorism cases, defense attorneys believe that it would be impossible to win on entrapment grounds.[229]

In contrast with US law, the European Court of Human Rights (ECtHR) of sting operations focuses on the whether inducement (also described as “incitement”) to a crime occurred—calling for the suppression of all evidence stemming from the incident. It also focuses on the defendant’s conduct up to the point when the government intervened by introducing an informant or undercover agent.

The United Kingdom House of Lords has laid out a similar standard.[230] The court asks whether there has been a violation of the right to a fair trial as a result of improper undercover tactics by examining two issues: the conduct of law enforcement, particularly whether it rises to “incitement,”[231] and the domestic procedural safeguards available to the defendant in arguing entrapment. While the ECtHR has rejected claims of incitement or entrapment where there was “concrete evidence” that the defendant had engaged in significant steps—or at least “initial steps”—toward committing the specific criminal offense before law enforcement began its undercover investigation,[232] it has found violation of the right to fair trial where the authorities “instigated the offence.”[233]

European human rights law—instructive for interpreting fair trial rights recognized by the ICCPR as well—suggests that the current formulation of the US defense of entrapment may not comport with fair trial standards. Moreover, law enforcement might not engage in some of the more problematic investigative tactics documented in this report if the entrapment defense involved a more searching inquiry into police conduct rather than an investigation into the defendant’s so-called predisposition to engage in terrorism offenses.

[30] The four exceptions are: the Boston Marathon bombing in 2013, an attempted car bombing at Times Square in 2010 by Faisal Shahzad, a plot to bomb the New York City subway system in 2009 involving Najibullah Zazi, and the shooting at an El Al counter at Los Angeles airport in 2002 involving Hesham Hadayet.

[31] Journalist Trevor Aaronson conducted a statistical study of terrorism-related prosecutions of 508 defendants and found that nearly half of the investigations resulting in terrorist-related charges involved the use of confidential informants. Of the 508 defendants convicted on terrorism or terrorism-related charges, 243 cases involved the use of an informant, 158 involved a sting operation, and 49 defendants were actually guided by the informant in forming the plan which would ultimately lead to their convictions. Aaronson, “The Informants,” Mother Jones magazine, http://www.motherjones.com/politics/2011/08/fbi-terrorist-informants?page=2. “Since 2009, nearly 50 percent of terrorism cases have involved informants.” New York University School of Law, Center on Law and Security, “Terrorist Trial Report Card: September 11, 2001 – September 11, 2011,” (undated) http://www.lawandsecurity.org/Portals/0/Documents/TTRC%20Ten%20Year%20Issue.pdf (accessed June 28, 2014).

[32] Yassin Aref and Mohammed Hossain, Barry Bujol; Adel Daoud; Newburgh 4 (James Cromitie, Laguerre Payen, David Williams, Onta Williams); Rezwan Ferdaus; Fort Dix (Shain Duka, Dritan Duka, Eljvir Duka, Mohamed Shnewer, Sardar Tartar); Raja Khan; Mohammed Mohamud; Adnan Mirza; Portland Seven (Jeffrey Leon Battle; Muhammad Ibrahim Bilal, Ahmed Ibrahim Bilal, Patrice Lumumba Ford, Maher Hawash, Habis Abdulla al Saoub); Tarik Shah; Matin Siraj; Hossam Smadi.

[33] Barry Bujol; Adel Daoud; Rezwan Ferdaus; Fort Dix (Shain Duka, Dritan Duka, Eljvir Duka, Mohamed Shnewer, Sardar Tartar); Mohammed Mohamud; Newburgh 4 (James Cromitie, Laguerre Payen, David Williams, Onta Williams); Matin Siraj; Hossam Smadi.

[34] Email from Michael German, fellow at the Brennan Center for Justice, to Columbia Law School’s Human Rights Institute, April 8, 2014.

[35] See description of the “radicalization theory,” described above.

[36] Trial Transcript at 1398, United States v. Siraj, 468 F.Supp. 2d 408 (E.D.N.Y. 2007) (No. 05-CR-104(NG)).

[37] Columbia Law School’s Human Rights Institute nterview with Martin Stolar, defense attorney for Siraj, New York, May 30, 2012.

[38] On his first trip to the Staten Island mosque, for example, Eldawoody reported on the number of people at each prayer service, the language in which sermons were given, and the languages spoken by attendees.He reported the presence or absence of donation boxes in the mosque, and was instructed to take down license plate numbers in the parking lot. Trial Transcript at 1019-1020, 1022, Siraj, 468 F.Supp. 2d 408 (No. 05-CR-104(NG)).

[39] Ibid., pp.2606-2607. (Witness Testimony of Shahina Parveen, mother of Matin Siraj: “He had supported his father, because his father is disabled from his both ears and he has hernia, and he couldn’t work any heavy work… [Matin] was very much concerned about the difficulties of his father, and he helped his father. He supported.”) Siraj’s family had emigrated from Pakistan in 1998. Cato, “The Weaponization of Immigration,” Backgrounder - Center for Immigration Studies (February 2008), http://www.cis.org/sites/cis.org/files/articles/2008/back108.pdf (accessed July 8, 2014), p. 4.

[40] Trial Transcript at 1573, Siraj, 468 F.Supp. 2d 408 (No. 05-CR-104(NG)).

[41] Shahawar Matin Siraj, “Accounting for My Many Wrongs,” p. 3 (on file with Human Rights Watch).

[42] Consolidated Brief for Appellee at 6, United States v. Shnewer, No. 1:07-cr-00459-001 (D.N.J. Apr. 29, 2009), aff’d in part, rev’d in partsub nom. United States v. Duka, 671 F.3d 329 (3d Cir. 2011) (No. 09-2292, 09-2299, 09-2300, 09-2301, 09-2302).

[43] Direct Examination of Mahmoud Omar: “First time I met Mohamed Shnewer, around 2005.” See Trial Transcript at 2781, Shnewer, No. 1:07-cr-00459 -001 (D.N.J. Apr. 29, 2009).

[44] Transcript of Detention Hearing, November 14, 2011, at 35-36, 52, United States v. Ferdaus, No. 11-10331-RGS, 2011 WL 5909547 (D. Mass. Nov. 28, 2011).

[45] See Indictment, Ferdaus, No. 11-10331-RGS, 2011 WL 5909547;  Affidavit of Gary S. Cacace, Ferdaus, No. 11-10331-RGS, 2011 WL 5909547.

[46] Ibid.

[47] Ibid.

[48] Columbia Law School's Human Rights Institute interview with Shamshad Ahmed, president of Masjid As-Salam, Albany, New York, June 20, 2012.

[49] Petitioner’s Brief at 30, United States v. Aref, 285 Fed.Appx. 784 (2d. Cir. 2008) (No. 07-0981-cr), aff’g No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007) (No. 1:04-cr-00402-TJM-1, 2007 Term; renumbered No. 07-0981-cr, 2008 Term).

[50] Ibid., p.15

[51] Trial Transcript at 1894-1896, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007).

[52] A November 2011 response to a FOIA request filed by Yassin Aref revealed that the FBI believed that Aref was actually an Al-Qaeda operative named Mohammed Yassin. Aref’s attorneys recently filed a Motion to Vacate Sentence Conviction, alleging that Mohammed Yassin was in fact an Al-Qaeda agent who was killed in a 2010 missile strike in Gaza. Despite constructive knowledge of that fact, the prosecution continued to allege in ex parte filings to the District and Circuit courts that Yassin Aref was an Al-Qaeda agent named Mohammed Yassin. Freedom of Information Act Response, received November 18, 2011.

[53] Columbia Law School's Human Rights Institute interview with Saniya Siraj, Queens, New York, August 14, 2012.

[54] Trial Transcript at 2289, United States v. Siraj, 468 F. Supp. 2d 408 (E.D.N.Y. 2007) (No. 05-CR-104(NG)), aff’d, 533 F.3d 99 (2d Cir. 2008).

[55] Appendix, Forensic Psychological Evaluation, Alan M. Goldstein, Ph.D., Oct. 14, 2006, at A-359 – A-382, Siraj, 533 F. 3d 99 (2d Cir. 2008) (No. 07-CR-0244). The prosecution did not request an independent psychological evaluation, but instead rejected Goldstein’s report as based on false information and analysis. United States Attorney Todd Harrison, Letter re: sentencing as to Shahawar Matin Siraj at 8-12, Siraj, 468 F. Supp. 2d 408 (E.D.N.Y. 2007) (No. 05-CR-104(NG)).

[56] Columbia Law School's Human Rights Institute interview with Saniya Siraj, Queens, New York, August 15, 2012.

[57] Ibid.

[58] Trial Transcript at 2676-2670, Siraj, 468 F. Supp. 2d 408 (No. 05-CR-104(NG)). (Cross-Examination of Eldawoody).

[59] Ibid., pp. 1453, 1505.

[60] Ibid., pp.1932, 1943, 1935.

[61] Trial Exhibit 20a, Transcript of Audio Disc #1, Conversation #1, United States v. Siraj, 468 F. Supp. 2d 408 (E.D.N.Y. 2007) (No. 05-CR-104(NG)), aff’d, 533 F.3d 99 (2d Cir. 2008).

[62] Superseding Indictment, Siraj, 468 F.Supp. 2d 408 (No. 05-CR-104(NG)).

[63] Columbia Law School's Human Rights Institute interview with Mona Daoud and Ahmed Daoud, parents of Adel Daoud, Hillside, Illinois, October 8, 2012.

[64] Criminal Complaint at 3, United States v. Daoud, No. 1:12-cr-00723 (N.D. Ill. filed Sept. 15, 2012).

[65] Ibid., p. 4.

[66] Ibid., p. 27.

[67] Columbia Law School's Human Rights Institute interview with Mona Daoud and Ahmed Daoud, October 8, 2012; see also, Criminal Complaint at 27-28, Daoud, No. 1:12-cr-00723, (N.D. Ill. filed Sept. 15, 2012).

[68] Columbia Law School's Human Rights Institute Interview with Mona Daoud and Ahmed Daoud, October 8, 2012.

[69] Criminal Complaint at 28, United States v. Daoud, No. 1:12-cr-00723 (N.D. Ill. filed Sept. 15, 2012).

[70] Ibid., p. 29.

[71] Ibid., p. 34.

[72] Ibid.

[73] Ibid.

[74] Columbia Law School’s Human Rights Institute interview with Mona Daoud and Ahmed Daoud, October 8, 2012.

[75] “Terror Plot Foiled: Inside the Smadi Case,” US Department of Justice, FBI press release, November 5, 2010, http://www.fbi.gov/news/stories/2010/november/terror-plot-foiled/terror-plot-foiled (accessed June 28, 2014).

[76] Motion for Downward Departure and or Variance and Memorandum in Support at 20, United States v. Smadi, No 3:09-CR-0294-M-(01) (N.D. Tex. Oct. 28, 2010), app. dism. as frivolous per curium, No. 10-1162,  446 Fed. Appx 679 (5th Cir. 2011).

[77] Memorandum from Dallas Field Intelligence Group to Counterterrorism (other address information redacted), Apr. 28, 2009, p. 3. (On file with Human Rights Watch)

[78] Ibid.

[79] Ibid., p. 5; “Terror Plot Foiled: Inside the Smadi Case,” US Department of Justice, Federal Bureau of Investigation press release, http://www.fbi.gov/news/stories/2010/november/terror-plot-foiled/terror-plot-foiled (Special Agent Tom Petrowski, who oversaw the investigation, emphasized this singularity: “What made Smadi’s posting stand out from the other rhetoric was that he was saying, ‘I want to act.’ That’s what really got our attention.”).

[80] Motion for Downward Departure and or Variance and Memorandum in Support at 22-25, United States v. Smadi, No 3:09-CR-0294-M-(01) (N.D.Tex. Oct. 28, 2010), app. dism. as frivolous per curium, No. 10-1162, 446 Fed. Appx. 679 (5th Cir. 2011).

[81] Ibid.

[82] Ibid.

[83] Ibid.

[84] Ibid.

[85] “Man Who Admitted Attempting to Use a Weapon of Mass Destruction to Bomb a Downtown Dallas Skyscraper is Sentenced to 24 Years in Federal Prison,” US Department of Justice press release, October 19, 2010, http://www.justice.gov/usao/txn/PressRel10/smadi_sen_pr.html (accessed June 20, 2014).

[86] “I was seeing things, I was downstate before I came up and I seen all kinds of stuff because I guess the drugs were still stimulant in my body.” James Cromitie, response to question during his Initial Parole Board Hearing, Fishkill Correctional Facility, New York, August 6, 1991, transcript at http://www.thrnewmedia.com/assets/terror/cromitie91.pdf (accessed June 20, 2014), p. 8, line 14.

[87] Objection to Presentence Investigation Report at 2, United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013) (“He [Laguerre Payen] has been diagnosed as schizophrenic by several doctors over the last 10 years, and no doctor has ever repudiated that diagnosis.”); Chris Dolmetsch and Bob Van Voris, “New York Synagogue-Bomb Plotter Laguerre Payen Sentenced to 25 Years,” Bloomberg, September 7, 2011, http://www.bloomberg.com/news/2011-09-07/new-york-synagogue-bomb-plotter-laguerre-payen-sentenced-to-25-years.html (accessed June 20, 2014) (“Samuel Braverman, Payen’s attorney, disagrees with a pre-sentencing report that called his client’s mental health claims ‘unsupported.’ He said Payen has been diagnosed as a schizophrenic by several doctors. Braverman requested that the judge ask the US Bureau of Prisons to place Payen in a facility with a medical center so his mental condition can be treated.”).

[88] Paul Harris, “Newburgh Four: poor, black, and jailed under FBI 'entrapment' tactics,” Guardian, December 12, 2011, http://www.guardian.co.uk/world/2011/dec/12/newburgh-four-fbi-entrapment-terror (accessed June 20, 2014).

[89] Ibid.

[90] Human Rights Watch interviews with Showket and Anamaria Ferdaus, Ashland, Massachusetts, November 24, 2012.

[91] See also, Showket M Ferdaus, “Standing up for Rezwan: Anatomy of a Terror Plot ‘Orchestrated and Facilitated by the Government,’” notmainstreemnews.com, http://www.notmainstreamnews.com/rezwan/standingupforrezwan.htm (accessed June 20, 2014).

[92] Ferdaus, “Standing up for Rezwan,” notmainstreemnews.com, http://www.notmainstreamnews.com/rezwan/standingupforrezwan.htm.

[93] Transcript of Detention Hearing, November 14, 2011, at 35-36, 52, United States v. Ferdaus, No. 11-10331-RGS, 2011 WL 5909547 (D. Mass. Nov. 28, 2011).

[94] Ferdaus, “Standing up for Rezwan,” notmainstreemnews.com. http://www.notmainstreamnews.com/rezwan/standingupforrezwan.htm.

[95] See Indictment, Ferdaus, 2011 WL 5909547 (No. 11-10331-RGS); Affidavit of Gary S. Cacace, Ferdaus, 2011 WL 5909547 (No. 11-10331-RGS).

[96] Indictment, Count I ¶¶(h)-(i), Ferdaus, 2011 WL 5909547 (No. 11-10331-RGS).

[97] Ferdaus, “Standing up for Rezwan,” notmainstreemnews.com, http://www.notmainstreamnews.com/rezwan/standingupforrezwan.htm.

[98] Human Rights Watch interview with Shoket Ferdaus, November 24, 2012.

[99] Transcript of Detention Hearing, November 14, 2011, at 71-72, Ferdaus, 2011 WL 5909547 (No. 11-10331-RGS).

[100] Ibid.

[101] Human Rights Watch interview with Shoket Ferdaus, Ashland, Massachusetts, November 24, 2012.

[102] Ferdaus, “Standing up for Rezwan,” notmainstreemnews.com, http://www.notmainstreamnews.com/rezwan/standingupforrezwan.htm.

[103] Ibid.

[104] Ibid.

[105] Ibid.

[106] Affidavit of Gary S. Cacace 81, Ferdaus, No. 11-10331-RGS, 2011 WL 5909547 (D. Mass. Nov. 28, 2011).

[107] “Man Sentenced in Boston for Plotting Attack on Pentagon and U.S. Capitol and Attempting to Provide Detonation Devices to Terrorists,” US Department of Justice, Federal Bureau of Investigation press release, November 1, 2012, http://www.fbi.gov/boston/press-releases/2012/man-sentenced-in-boston-for-plotting-attack-on-pentagon-and-u.s.-capitol-and-attempting-to-provide-detonation-devices-to-terrorists (accessed June 20, 2014).

[108] Plea Agreement at 3-4, United States v. Ford, No. 3:02-00399-JO-2 (D. Or. Nov. 26, 2003).

[109] Original Indictment at 8, United States v. Battle, No. CR 3:02-00399-02-JO-1 (D. Or. Nov. 26, 2003).

[110] Deborah Howlett, “The two sides of one law, the two lives of one man,” Newark Star-Ledger, July 24, 2005, http://www.nj.com/news/ledger/index.ssf?/news/ledger/stories/patriotact/partthree.html (accessed June 20, 2014); Mark Larabee, “Hawash's plea gives prosecutors vital voice,” Portland Independent Media Center, August 9, 2003, http://portland.indymedia.org/en/2003/08/269532.shtml (accessed June 20, 2014).

[111] Superseding Indictment, Battle, No. 02-399-JO-1 (D. Or. Nov. 26, 2003).

[112] Howlett, “The two sides of one law, the two lives of one man,” http://www.nj.com/news/ledger/index.ssf?/news/ledger/stories/patriotact/partthree.html. See also, Peter Y. Hong, “Portland Terror Suspect Released Pending Trial,” Los Angeles Times, October 11, 2002, http://articles.latimes.com/2002/oct/11/nation/na-portland11 (accessed June 20, 2014). Similar information was given during Human Rights Watch interviews with prosecutor Charles Gorder and with defense attorneys involved in the case. Human Rights Watch interviews, Portland, Oregon, August 13-17, 2012.

[113] “But aside from contemplating killing Jews at a synagogue, an idea that Battle subsequently dropped….” Nick Budnick, “The Making of a ‘Terrorist’: John Ashcroft says native Portlander Patrice Lumumba Ford is a threat to national security—but friends and family are having trouble connecting the dots,’” Willamette Week, October 16, 2002, http://www.wweek.com/portland/article-1377-the_making_of_a_terrorist.html (accessed June 20, 2014); “Yet, according to the prosecutor's filing, Battle asked about making a bomb in September 2002, after a series of conversations in which he spoke of his consideration and ultimate rejection of committing a terrorist act in the United States.” “Filing reveals new details of Portland jihad group,” Associated Press, November 20, 2003, http://tdn.com/news/state-and-regional/filing-reveals-new-details-of-portland-jihad-group/article_6c3b482e-2eb0-5762-b009-abfc1aade522.html (accessed June 20, 2014).

[114] Human Rights Watch interview with John Ransom, Portland, Oregon, August 13, 2012.

[115] U.S. Department of Justice, Remarks of Attorney General John Ashcroft, Press Conference, October 4, 2002, http://www.justice.gov/archive/ag/speeches/2002/100402agnewsconferenceportlandcell.htm (accessed July 11, 2014).

[116] Human Rights Watch interview with Kent Ford, Portland, Oregon, August 13, 2012.

[117] Human Rights Watch interview with Charles Gorder, assistant US attorney, Portland, Oregon, August 16, 2012.

[118] Defendant Habis al-Saoub remained in Asia when the other defendants traveled back to the US. He reportedly joined Al-Qaeda and was killed in the Fall of 2003 in Pakistan. Hal Bernton, “Oregon conspirators attack war on terror, get 18-year jail terms,” Seattle Times, November 25, 2003, http://seattletimes.com/html/localnews/2001800337_portlandseven25m.html (accessed June 20, 2014); Howlett, “The two sides of one law, the two lives of one man,” Newark Star-Ledger, http://www.nj.com/news/ledger/index.ssf?/news/ledger/stories/patriotact/partthree.html; “Two plead guilty in Oregon terror case,” CNNNews Online, October 16, 2003, http://www.cnn.com/2003/LAW/10/16/terror.suspects/ (accessed June 20, 2014).

[119] Because Hussain was not authorized to offer this amount of money, he turned off the recording device when he made it and subsequently lied about the offer at trial. Trial Transcript at 773, United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013). A month later, Hussain reminded Cromitie about the offer in a recorded phone conversation. Ibid., p. 1572.

[120] The $250,000 offer was not sanctioned by the FBI, but the court specifically found that the offer had been made, nonetheless. Ibid., pp. 242, 3502-87.

[121]Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011).

[122] Trial Transcript at 4484-4487, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011).

[123] Graham Rayman, “Were the Newburgh 4 Really Out to Blow Up Synagogues? A Defendant Finally Speaks Out,” villagevoice.com, March 2, 2011, http://www.villagevoice.com/2011-03-02/news/were-the-newburgh-4-really-out-to-blow-up-synagogues/2/ (accessed June 20, 2012).

[124] Cromitie Appellate Brief at 17, United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013).

[125] Trial Transcript at 1018-19, 1032-34, 1659, Cromitie, 781 F. Supp. 2d 211 (No. 7:09-CR-00558).

[126] Transcript of Cooperating Witness’s Recordings, Dec. 3, 2003, United States v. Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007), aff’d, 285 Fed.Appx. 784 (2d. Cir. 2008) (No. 1:04-cr-00402-TJM-1, 2007 Term; renumbered No. 07-0981-cr, 2008 Term).

[127] Ibid.

[128] Ibid.

[129] Transcript of Cooperating Witness’s Recordings, Dec. 5, 2003, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007).

[130] Ibid.

[131] Trial Transcript, Sept. 15, 2006, at 372, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007) (Agent Coll’s Testimony).

[132] Trial Transcript at 1918, United States v. Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007), aff’d, 285 Fed.Appx. 784 (2d. Cir. 2008) (No. 1:04-cr-00402-TJM-1, 2007 Term; renumbered No. 07-0981-cr, 2008 Term). Aref knew that JEM is a designated terrorist organization (Transcript of Cooperating Witness’ Recordings, Jan. 14, 2004, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007); Hossain initially got JEM confused with Jamaat-e-Islami (JEI) Bangladesh, which has not been designated a terrorist organization by the United States. Trial Transcript at 1212, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007).

[133] Transcript of Recordings between Shahed Hossain and Yassin Aref, Jan. 14, 2004, at 5-15 to 6-10, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007). (Yassin Aref indicates that he believed the transaction was intended to enable Hossain to pay his taxes.)

[134] Trial Transcript at 1942, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007) (Government’s Closing).

[135] Ibid., p. 49. (Defendant Aref’s Opening).

[136] Criminal Complaint at 4-5, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007); Trial Transcript at 57, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007) (Defendant Aref’s Opening); “This is for Destroying Airplanes,” video transaction between Aref and informant, Mother Jones, August 20, 2011, https://www.youtube.com/watch?feature=player_embedded&v=jNIkAlfJyxs (accessed July 11, 2014).

[137] Defendant Aref’s Opening Brief, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007).

[138] See discussion below about conversation between Malik and Aref on January 14 about JEM. Transcript of Cooperating Witness’s Recordings, January 14, 2004, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007); Judgment, United States v. Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007), aff’d, 285 Fed.Appx. 784 (2d. Cir. 2008) (No. 1:04-cr-00402-TJM-1, 2007 Term; renumbered No. 07-0981-cr, 2008 Term).

[139] Judgment, Aref, No. 1:04-cr-00402-TJM-1 (N.D.N.Y. Mar. 19, 2007); Judgment, United States v. Hossain, No. 1:04-cr-00402-TJM-2 (N.D.N.Y. Mar. 19, 2007), aff’d 285 Fed.Appx. 784 (2d. Cir. 2008) (No. 1:04-cr-00402-TJM-1, 2007 Term; renumbered No. 07-0981-cr, 2008 Term).

[140] Barry Bujol; James Cromitie; Mohammed Hossain; Raja Khan; Mohammed Mohamud; Laguerre Payen; Tarik Shah; David Williams; Onta Williams.

[141] Columbia Law School’s Human Rights Institute interview with Lamese Shnewer, Cherry Hill, New Jersey, September 26, 2012; Columbia Law School’s Human Rights Institute and Human Rights Watch interview with Dritan Duka, ADX Florence, July 19, 2012.

[142] Trial Transcript at 3014-15, United States v. Shnewer, No. 1:07-cr-00459-RBK (D.N.J. Apr. 29, 2009), aff’d in part, rev’d in partsub nom. United States v. Duka, 671 F.3d 329 (3d Cir. 2011) (No. 09-2292, 09-2299, 09-2300, 09-2301, 09-2302). (Cross-Examination of Mahmoud Omar: “Q. [D]id you indicate to Mr. Shnewer that you would be interested in receiving copies of videos like the ones you were showing? A. I believe I said something like that. Q. And in fact, not only did you indicate that you would be interested in receiving copies, you actually provided to him a device, a CD or DVD burner to facilitate his making copies for you, correct? … A. The FBI bought it for me, I gave it to Mr. Mohamad Shnewer and he did not know how to operate it.”) Columbia Law School’s Human Rights Institute interview with Shain Duka, ADX Florence, July 18, 2012.

[143] Government Exhibit 605-B, Shnewer, No. 1:07-cr-00459-RBK (D.N.J. Apr. 29, 2009).

[145] Mohamed Shnewer, Dritan Duka, and Shain Duka were sentenced to life plus 30 years; Eljvir Duka was given a life sentence and Serdar Tartar was sentenced to 33 years with a downward variance. On December 28, 2011, the Third Circuit upheld the convictions and sentences of these five men, except for Shnewer, whose weapons conviction and accompanying 30 year sentence was dismissed. Shnewer is still serving a life term for the coonspiracy conviction. “Two Additional Defendants Sentenced for Conspiring to Kill U.S. Soldiers,” US Department of Justice press release, April 29, 2009, http://www.justice.gov/opa/pr/2009/April/09-nsd-408.html (accessed June 20, 2014). The judge gave Tatar a lower sentenced because he believed Tatar was the only defendant not motivated by radical Islamic views. Troy Graham, “Final 2 Ft. Dix plotters get jail There was another life term. Then the last of the five got 33 years,” Inquirer, April 30, 2009, http://articles.philly.com/2009-04-30/news/25287654_1_shain-duka-fort-dix-dritan (accessed June 20, 2014); “U.S. appeals court uphold convictions in Fort Dix terror plot,” Associated Press, December 29, 2011, http://www.nj.com/news/index.ssf/2011/12/us_appeals_court_upholds_convi_1.html (accessed June 20, 2014).

[146] Human Rights Watch Interview with Tariq Ahmed, Houston, Texas, June 26, 2012.

[147] Dane Schiller, “Former Prairie View student accused of terrorism not going quietly,” Houston Chronicle, June 23, 2011, http://www.chron.com/news/houston-texas/article/Former-Prairie-View-student-accused-of-terrorism-2078461.php (accessed June 20, 2014); Government’s Trial Brief at 9, United States v. Bujol, No. 4:10-cr-00368 (S.D.Tex. June 1, 2012), aff’d per curiam, No. 12-20393 (5th Cir. June 12, 2013) (No. 4:10-CR-368-1, 2012 Term; renumbered No. 12-20393, 2013 Term).

[148] Ibid., p. 10.

[149] Human Rights Watch interview with Tariq Ahmed, June 26, 2012; Columbia Law School’s Human Rights Institute telephone interview with Daphne Silverman, October 16, 2013.

[150] Joe Verela, Bujol’s first defense counsel, noted: “Federal investigations generally have more man hours and money. But this one, they spent millions of dollars. Instead of one audio recorder there were three. Instead of one camera, there were six. There were backup cameras, backup recordings … in a typical five defendant DEA case there’s some audio and video, some eyeball surveillance…but this thing, they didn’t leave too many stones unturned.” Human Rights Watch phone interview with Joe Verela, Bujol’s first defense counsel, June 21, 2012.

[151] Human Rights Watch email correspondence with Daphne Silverman, April 16, 2013.

[152] Human Rights Watch interview with Tariq Ahmed, June 26, 2012.

[153] Human Rights Watch interview with Daphne Silverman, Houston, Texas, June 25, 2012.

[154] Ibid.

[155] Human Rights Watch interview with Mark Wells White, Houston, Texas, June 25, 2012.

[156] Ibid.

[157] Ibid.

[158] Columbia Law School’s Human Rights Institute and Human Rights Watch interviews with several defense advocates.

[159] Government’s Trial Brief at 15, United States v. Bujol, No. 4:10-cr-00368 (S.D.Tex. June 1, 2012), aff’d per curiam, No. 12-20393 (5th Cir. June 12, 2013) (No. 4:10-CR-368-1, 2012 Term; renumbered No. 12-20393, 2013 Term).

[160] “Texas Man Gets Max for Attempting to Provide Material Support to Al-Qaeda,” US Department of Justice press release, May 24, 2012, http://www.justice.gov/usao/txs/1News/Releases/2012%20May/120524%20Bujol.html (accessed June 22, 2014).

[161] Exhibit 20a, Transcript of Audio Disc #1, Conversation #1 at 17, United States v. Siraj, 468 F.Supp. 2d 408 (E.D.N.Y. 2007) (No. 05-CR-104(NG)), aff’d, 533 F.3d 99 (2d Cir. 2008).

[162] Ibid.

[163] Ibid.

[164] Ibid.

[165] Decision and Order Denying Defendants’ Renewed Motion to Dismiss the Indictment Based on Outrageous Government Misconduct at 11, United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013); Trial Transcript at 687-688, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011); See also, Kareem Fahim, “On Tapes, Terror Suspects Brags and Reveals His Hate,” New York Times, August 30, 2010.

[166] Decision and Order Denying the Defendants’ Post Trial Motions at 12, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011); Trial Transcript at 816, 1708-1708, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011).

[167] Decision and Order Denying Defendant’s Renewed Motion to Dismiss the Indictment Based on Outrageous Government Misconduct at 10, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011). “But whenever Hussain asked Cromitie to act on those sentiments—make a plan, pick a target, find recruits, introduce the CI to like-minded brothers, procure guns, and conduct surveillance—Cromitie did none of the above.” (citations omitted)

[168] Trial Transcript at 843-844, 988, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011). As early as December 10, 2009 Hussain promised to give Cromitie his BMW if he joined the mission (Decision and Order Denying the Defendants’ Post Trial Motions at 7, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011); Trial Transcript at 893-894, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011)); The informant frequently reminded Cromitie that he and any potential recruits could make significant money in the mission (Trial Transcript at 816, 1708-1709, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011)); in the interim, he sometimes provided Cromitie with money—which the FBI provided—to pay his rent (Trial Transcript at 265, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011)). Hussain promised Cromitie various rewards for joining the mission, including “a post-attack getaway trip to Miami, Puerto Rico, or Costa Rica,” (Decision and Order Denying the Defendants’ Post Trial Motions at 7, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011); and his own barbershop (Trial Transcript at 1857, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011)).

[169] “On October 19, Cromitie met with Hussain again. Cromitie again complained about the treatment he received from some Jews. Hussain responded that according to the Prophet Mohammed, Jews ‘are responsible for all the evils in the world’ and should be ‘eliminated.’” Decision and Order Denying Defendant’s Renewed Motion to Dismiss the Indictment Based on Outrageous Government Misconduct at 9,United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013).

[170] Trial Transcript at 545, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011).

[171] Ibid., p. 721.

[172]Cromitie, 781 F. Supp. 2d 211, 219, aff’d, 727 F.3d 194.

[173] Trial Transcript at 827, 3054, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011).

[174] Ibid., pp. 1824-1828.

[175] Cromitie Appellate Brief at 16, United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013).

[176] Transcript of Oral Argument, November 5, 2012, United States v. Cromitie, 727 F.3d 194 (2d Cir. 2013) (Nos. 11-2763(L), 11-2884(con), 11-2900(con), and 11-3785(con)), aff’g No. 7:09-cr-0558-CM-1 (S.D.N.Y. July 8, 2011).

[177] Trial Transcript at 411, United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013).

[178] Decision and Order Denying Defendants’ Renewed Motion to Dismiss the Indictment Based on Outrageous Government Conduct at 23, United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013). “Hussain translated Cromitie’s vague ‘do something to America’ comments, and his rants against Jews, into concrete ideas that most definitely did not originate with defendant: putting together a team (create a conspiracy) to plant IEDs at synagogues in Riverdale (commit terrorist activity), and to shoot Stinger missiles at Air Force aircraft in Orange County (an offense carrying a statutory 25 year minimum.) Then Hussan (not Cromitie) made it possible for those things to happen—or at least seem to happen” (footnotes omitted).

[179] Chris Dolmetsch and Patricia Hurtado, “New York City Synagogue Bomb Plotters Are Sentenced to 25 Years in Prison,” Bloomberg, June 29, 2011, http://www.bloomberg.com/news/2011-06-29/new-york-city-synagogue-bomb-plotters-are-sentenced-to-25-years-in-prison.html (accessed June 20, 2014).

[180] Decision and Order Denying Defendants’ Renewed Motion to Dismiss the Indictment Based on Outrageous Government Conduct at 23, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011).

[181]Alan Rozenshtein, “Lawfare Podcast #24: Federal Public Defender Miriam Conrad on the Rezwan Ferdaus Case,” post to “Lawfare” (blog), Lawfare Institute, January 16, 2013, http://www.lawfareblog.com/2013/01/lawfare-podcast-24-federal-public-defender-miriam-conrad-on-the-rezwan-ferdaus-case/ (accessed June 17, 2014).

[182] Mirza regularly went to restaurants around Houston and collected leftover food that had not been served; he would then go around the city’s poorest areas and feed the homeless. He helped without regard to religion, delivered food on Christmas Day, and did so entirely on his own initiative. See Trial Transcript vols.1, 2 at 539-555, and vol. 3, United States v. Mirza, No. 4:06-cr-00421-2 (S.D. Tex. Oct. 28, 2010), aff’d, No. 10-2075 (5th Cir. Oct. 25, 2011), cert. denied, 132 S.Ct. 1725 (2012) (No. H-06-421, 2010 Term; renumbered No. 10-2075, 2011 Term; renumbered No. 11-8595, 2012 Term); Human Rights Watch interview with representative of the Islamic Circle of North America, Houston, June 25, 2012; Human Rights Watch interview with David Adler, defense attorney at Mirza’s trial, Houston, Texas, June 27, 2012.

[183] Trial Transcript vol. 2 at 255, Mirza, No. No. 4:06-cr-00421-2 (S.D. Tex. Oct. 28, 2010). Human Rights Watch interview with Shiraz Qazi, Mirza’s cousin and defendant in related case, Houston, Texas, June 26, 2012; Human Rights Watch interview with representative of the Islamic Circle of North America, June 25, 2012.

[184] Human Rights Watch phone interview with person close to Jim Coates, June 21, 2012.

[185] Trial Transcript vol. 2 at 255, Mirza, No. No. 4:06-cr-00421-2 (S.D. Tex. Oct. 28, 2010).

[186] Ibid., vol. 1, pp. 209-212.

[187] Ibid., vol. 2, p. 274. (Testimony of Undercover).

[188] Human Rights Watch interview with David Adler, June 27, 2012.

[189] These charges included conspiracy to unlawfully possess firearms and ammunition while illegally in the US; conspiracy to support the Taliban with funds; six counts of possessing firearms while illegally in the US; and one count of possessing ammunition while illegally in the US. Superseding Indictment, August 19, 2009, United States v. Mirza, No. 4:06-cr-00421-2 (S.D. Tex. Oct. 28, 2010), aff’d, No. 10-2075 (5th Cir. Oct. 25, 2011), cert. denied, 132 S.Ct. 1725 (2012) (No. H-06-421, 2010 Term; renumbered No. 10-2075, 2011 Term; renumbered No. 11-8595, 2012 Term). See also, Mirza, No. H-06-421, 2010 WL 1427220 at 4.

[190] Trial Transcript vol. 1 at 188-89, Mirza, No. 4:06-cr-00421-2 (S.D. Tex. Oct. 28, 2010).

[191] Ibid., vol. 2, pp. 361, 368-371, 422.

[192] Ibid., vol. 2, pp. 286-287.

[193] Ibid., vol. 2. (Cross-examination of Mohammed Malik by David Adler)

[194] Trial Transcript, vol. 1 at 212-214, United States v. Mirza, No. 4:06-cr-00421-2 (S.D. Tex. Oct. 28, 2010), aff’d, No. 10-2075 (5th Cir. Oct. 25, 2011), cert. denied, 132 S.Ct. 1725 (2012) (No. H-06-421, 2010 Term; renumbered No. 10-2075, 2011 Term; renumbered No. 11-8595, 2012 Term) (Cross-examination of FBI special agent John Mckinley by David Adler: “Q. You didn't find any evidence of Mr. Mirza wanting to go shooting before [confidential informant] Mr. Coates suggested it? A. No, sir.”).

[195] Ibid.

[196] Ibid.

[197] Ibid. (Cross-examination of FBI special agent John Mckinley by David Adler: “Q. And as far as this training—quote-unquote—that was going on out there in Willis, Mr. Coates and Mr. Mohammad directed all aspects of it? A. I believe Mr. Mirza said in his statement that they were designated as the trainers. Q. What kind of training did Mr. Mirza provide? A. None that I'm aware of.”)

[198] Indictment, United States v. Shnewer, No. 1:07-cr-00459-RBK (D.N.J. Apr. 29, 2009), aff’d in part, rev’d in partsub nom. United States v. Duka, 671 F.3d 329 (3d Cir. 2011) (No. 09-2292, 09-2299, 09-2300, 09-2301, 09-2302).

[199] “The philosophy that supports and encourages jihad around the world against Americans came to live here in New Jersey and threaten the lives of our citizens through these defendants. Fortunately, law enforcement in New Jersey was here to stop them.” US Attorney Christopher Christie, Press Conference, May 11, 2007, video clip, YouTube, http://www.youtube.com/watch?v=_SBIQg8t-Xo (accessed June 20, 2014).

[200] Trial Transcript at 3208, Shnewer, No. 1:07-cr-00459-RBK (D.N.J. Apr. 29, 2009).

[201] Ibid., pp. 3289, 2390.

[202] Ibid., p. 4714.

[203] Tatar, who himself was interested in entering law enforcement, offered his phone number and address for the sergeant to give to the FBI. The sergeant called the FBI’s Philadelphia office from the 7-11, and left a detailed message with all of the information Tatar had provided. The FBI failed to contact the sergeant back for two weeks, at which time he was called down to the FBI office and briefed. Ibid., pp. 4722-4736.

[204] Trial Transcript at 4722-4724, United States v. Shnewer, No. 1:07-cr-00459-RBK (D.N.J. Apr. 29, 2009), aff’d in part, rev’d in partsub nom. United States v. Duka, 671 F.3d 329 (3d Cir. 2011) (No. 09-2292, 09-2299, 09-2300, 09-2301, 09-2302).

[205] Sergeant Sean Dandridge, who regularly visited Tatar’s 7-11, testified at trial that Tatar frequently expressed ambitions about joining law enforcement, referring to specific applications he had submitted. Ibid, pp. 4717-4719.

[206] Columbia Law School's Human Rights Institute email correspondence with Serdar Tatar, April 4, 2013.

[207] Trial Transcript at 4731-4733, United States v. Shnewer, No. 1:07-cr-00459-RBK (D.N.J. Apr. 29, 2009), aff’d in part, rev’d in partsub nom. United States v. Duka, 671 F.3d 329 (3d Cir. 2011) (No. 09-2292, 09-2299, 09-2300, 09-2301, 09-2302).

[208] Ibid, p. 5423.

[209] Ibid, p. 5708. (Cross-examination of Besnik Bakalli by Michael Riley, inidicating that Bakalli presented himself as an ethnic Albanian who “would like to learn more about their faith and maybe participate in that faith.”)

[210] Ibid, pp. 5708-5709. (Cross-examination of Besnik Bakalli by Michael Riley)

[211] Ibid., p. 5586. (Cross-examination of Besnik Bakalli by Michael Huff) (Recorded conversation in which Eljvir and Dritan deny Bakalli’s inference that jihad means to only a violent fight, but instead means to struggle and sacrifice against lust.)

[212] Columbia Law School's Human Rights Institute and Human Rights Watch interview with Shain Duka, USP Florence, July 18, 2012; Columbia Law School's Human Rights Institute and Human Rights Watch Interview with Dritan Duka, July 19, 2012.

[213] Trial Transcript at 5143, United States v. Shnewer, No. 1:07-cr-00459-RBK (D.N.J. Apr. 29, 2009), aff’d in part, rev’d in partsub nom. United States v. Duka, 671 F.3d 329 (3d Cir. 2011) (No. 09-2292, 09-2299, 09-2300, 09-2301, 09-2302). (Direct examination of Besnik Bakalli: “Q. Now when you got back from the Poconos, how often did you go paintballing with the Duka brothers? A. Most every Friday. Q. And did you go paintballing sometimes on the weekends? A. Yes, Saturdays, Sundays too. Q. And had you done that before you went to the Poconos? A. No. Q: Did you do that in the Poconos? A. Yes. Q. And what did they tell you, the Duka brothers tell you paintball was for? A. Train.”)

[214] “Two Additional Defendants Sentenced for Conspiring to Kill U.S. Soldiers,” US Department of Justice press release, http://www.justice.gov/opa/pr/2009/April/09-nsd-408.html (accessed June 20, 2014). The judge gave Tatar a lower sentence because he believed Tatar was the only defendant not motivated by radical Islamic views. “Final 2 Ft. Dix plotters get jail,” Inquirer, http://articles.philly.com/2009-04-30/news/25287654_1_shain-duka-fort-dix-dritan.

[215] Trial Transcript at 1324, United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013).

[216] Trial Transcript at 1803, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011) (Judge McMahon: Isn’t it a fair view of the evidence that Agent Fuller did not know that he [Hussain] was throwing around quarter-million dollar offers.”).

[217] United States v. Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d Cir. 2013).

[218] Hussain admitted telling Agent Fuller that Onta Williams, one of the defendants, had suggested that Laguerre Payen might be a snitch during a drive back from Stamford when in reality it was Hussain who had made the suggestion. Trial Transcript at 1435, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011).

[219] Hamed Aleaziz, “Wondering if Your ‘Jihadist’ Friend Is With the FBI?” March 20, 2012, http://www.motherjones.com/mojo/2012/03/shahed-hussain-khalifah-al-akili (accessed June 20, 2014).

[220] Trial Transcript at 2376-2382, Cromitie, >No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011). Omar lied to the FBI repeatedly over the course of the Fort Dix investigation, about issues ranging from investigation targets to fraudulently obtained Social Security numbers. (N.T. 10/27/08 at 2369 l. 19 to 2371 l. 19) (testimony of John Stermel, police officer with the Delaware River Port Authority assigned to FBI’s joint terrorism task force) Despite these signs of unreliability, the FBI continued to depend on Omar, and paid him well for his efforts. Beginning in August 2006, the FBI paid Omar $1,500 per week during the investigation. Omar received a total of $240,000 from the FBI.This included: $183,500 in payment unrelated to expenses, and $54,000 for expenses incurred during the investigation including car repair and rent.

[221] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. Under article 19, “1. Everyone shall have the right to hold opinions without interference; 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: … (b) For the protection of national security or of public order (ordre public), or of public health or morals.” While article 17 on the right to privacy and family does not specifically allow for national security restrictions, it prohibits any interference that is arbitrary or unlawful. 

[222] See ICCPR, art. 2, which states that “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” According to Prof. Manfred Nowak in his authoritative analysis of the ICCPR, the restrictions specified in the rights to freedom of expression and association should be interpreted narrowly. For example, terms such as “national security” and “public safety” refer to situations involving an immediate and violent threat to the nation. See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, (Kehl am Rhein: Engel, 2005), pp. 463-64, 504-05.

[223] See Human Rights Committee, General Comment 27, Freedom of movement (Art. 12), (Sixty-seventh session, 1999), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 (1993), p.174. See also, Human Rights Council, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, A/HRC/10/3, February 4, 2009, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/106/25/PDF/G0910625.pdf?OpenElement (accessed June 20, 2014), para. 65.

[224] See Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 189 (1990), guideline 13, (“In the performance of their duties, prosecutors shall: (a) Carry out their functions impartially and avoid all political, social, religious, racial, cultural, sexual or any other kind of discrimination”). The right to freedom from discrimination based on religion, ethnicity or other grounds is enshrined in numerous international declarations and conventions, including, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 2; International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A(XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 9993 U.N.T.S. 3, entered into force January 3, 1976, arts. 2-3; International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, arts. 2-3, 26.

[225]U.S. Const. amend. V.; ICCPR, arts. 14, 16; UDHR, arts. 6,10, 11.

[226] See Mathews v. United States, 485 US 58, 63 (1988); Jacobson v. United States, 503 US 540, 549 (1992).

[227] Thomas Frampton, “Lambroso’s Ghost,” New Inquiry, March 7, 2013, http://thenewinquiry.com/essays/lombrosos-ghost/ (accessed June 20, 2014) (arguing that this harkens back to positivist criminology, in which criminal laws were designed to root out segments of society that were deemed inherently problematic).

[228] “[T]here is a lengthy public record of guilty pleas and convictions in such cases. Federal courts and juries have overwhelmingly upheld the use of undercover operations in terrorism sting cases. While entrapment may routinely be cited as a defense in these cases, to date, no terrorism defendant since 9/11 has won acquittal using such a defense.” Radio Free Europe/Radio Liberty, Department of Justice National Security Division Spoksman Dean Boyd’s response to Trevor Aaronson’s Terror Factory, cited in “How the FBI Helps Terrorists Succeed,” Atlantic, February 26, 2013, http://www.theatlantic.com/international/archive/2013/02/how-the-fbi-helps-terrorists-succeed/273537/ (accessed June 20, 2014).

[229] Columbia Law School’s Human Rights Institute interview with Martin Stolar, defense attorney for Matin Siraj, New York, May 30, 2012.

[230] “The only proper purpose of police participation is to obtain evidence of criminal acts which they suspect someone is about to commit or in which he is already engaged. It is not to tempt people to commit crimes in order to expose their bad characters and punish them.” Loosely, R. v. [2001] UKHL 53, [2002] 1 Cr App R 29 [56], available at http://www.publications.parliament.uk.

[231] European Court of Human Rights, Ramanauskas v. Lithuania [GC], no. 74420/01, ECHR 2008, para. 55. “Police incitement occurs where the officers involved—whether members of the security forces or persons acting on their instructions—do not confine themselves to investigating criminal activity in an essentially passive manner, but exert such an influence on the subject as to incite the commission of an offence that would otherwise not have been committed, in order to make it possible to establish the offence, that is, to provide evidence and institute a prosecution.”

[232] European Court of Human Rights, Case of Veselov and Others v. Russia, nos. 23200/10, 24009/07 and 556/10, 2 October 2012, para. 90. The court did not further explain the type of conduct that would be considered “initial steps.”

[233] European Court of Human Rights, Case of Teixeira de Castro v. Portugal, 9 June 1998, Reports of Judgments and Decisions 1998-IV, para. 39.