Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions

212 Pages·2014·1.3 MB·English

ILLUSION OF JUSTICE
Human Rights Abuses in US Terrorism Prosecutions
H U M A N
R I G H T S
W A T C H
Illusion of Justice
Human Rights Abuses in US Terrorism Prosecutions
Copyright © 2014 Human Rights Watch
All rights reserved.
Printed in the United States of America
ISBN: 978-1-62313-1555
Cover design by Rafael Jimenez

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abuses, expose the facts widely, and pressure those with power to respect rights and
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JULY 2014 978-1-62313-1555

Illusion of Justice
Human Rights Abuses in US Terrorism Prosecutions

Summary ................................................................................................................ 1
Human Rights Concerns ............................................................................................... 4
Adverse Impact on American Muslim Communities, Law Enforcement .......................... 7
Key Recommendations to the US Federal Government .................................................. 8
Methodology .......................................................................................................... 9
I. “Homegrown Terrorism” and the Preventive Approach to Investigations ............. 13
Post 9/11 Changes to Priorities and Rules Governing Federal Terrorism Investigations 14
Theories of “Homegrown Terrorism” and “Radicalization” .......................................... 16
Widespread Surveillance of American Muslims and Use of Informants ........................ 18
II. Discriminatory and Overly Aggressive Investigations Using Informants ............. 21
Identifying Targets for Investigation Due to Religious or Political Views ...................... 23
Vulnerable Targets: People with Mental, Intellectual Disabilities, Indigent People ...... 27
Vulnerable Targets: Individuals Seeking Religious Guidance ...................................... 41
Informants Ignoring Targets’ Reluctance to Engage in Terrorism .................................. 45
Informants Playing Key Roles in Generating or Furthering the “Plot” ........................... 47
Informants with Criminal Histories ............................................................................. 54
Human Rights Concerns ............................................................................................. 55
III. Broad Charges: Material Support Cases ........................................................... 60
Changes to the Material Support Statute .................................................................... 60
Waves of Material Support Prosecutions .................................................................... 62
Human Rights Concerns ............................................................................................. 74
IV. Unfair Trials .................................................................................................... 76
Prejudicial Evidence .................................................................................................. 76
Evidence from Warrantless Wiretaps under the Foreign Intelligence Surveillance Act .. 96
Classified Evidence ................................................................................................. 107
Anonymous and Biased Juries ................................................................................... 111
Pretrial Solitary Confinement and Other Conditions of Confinement .......................... 112
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V. Disproportionate Sentences ............................................................................ 122
The “Terrorism Adjustment” ..................................................................................... 123
Lengthy Sentences Based on Unproven Conduct ...................................................... 125
Lengthy Sentences Based on Non-Violent Conduct ................................................... 127
Lengthy Sentences in Informant Cases ..................................................................... 129
VI. Imprisonment and Treatment .......................................................................... 131
Background: Tightening of Restrictions in Response to “Prisoner Radicalization” ..... 132
Prolonged Solitary Confinement and Restrictions on Family Contact ......................... 133
Obstacles to Challenging Prisoner Classification and Seeking Transfer to Less
Restrictive Facilities ................................................................................................. 152
VII. Law Enforcement Relations with American Muslim Communities .................... 164
Community Outreach and Countering Violent Extremism .......................................... 164
Necessary Alternatives ............................................................................................ 173
VIII. Full Recommendations ................................................................................. 178
To the US President ................................................................................................. 178
To the US Attorney General ...................................................................................... 179
To the Federal Bureau of Investigation ..................................................................... 180
To the Department of Justice National Security Division and US Attorneys’ Offices .... 180
To the Bureau of Prisons .......................................................................................... 182
To the Department of Justice Office of Inspector General .......................................... 185
To the US Sentencing Commission ........................................................................... 185
To Federal Court Judges ........................................................................................... 185
To the US Congress .................................................................................................. 186
Acknowledgments .............................................................................................. 188
Appendix............................................................................................................. 190
A. Cases Reviewed ................................................................................................... 190
B. Detention Conditions ........................................................................................... 198
C. Length of Time in Pretrial Solitary Confinement .................................................... 200
D. Quantitative Analysis of the Department of Justice Terrorism Conviction Dataset .. 201
E. Government Correspondence ............................................................................... 206

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Summary

Muslims are a fundamental part of the American family. In fact, the success
of American Muslims and our determination to guard against any
encroachments on their civil liberties is the ultimate rebuke to those who say
that we’re at war with Islam.
—US President Barack Obama, May 23, 2013

This community is under siege. And even if they’re not under siege, they
think they are.
—Tom Nelson, attorney, Portland, Oregon, August 13, 2012

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

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

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

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

Indeed, in some cases the Federal Bureau of Investigation may have created
terrorists out of law-abiding individuals by conducting sting operations that
facilitated or invented the target’s willingness to act. According to multiple studies,
nearly 50 percent of the more than 500 federal counterterrorism convictions
resulted from informant-based cases; almost 30 percent of those cases were sting
operations in which the informant played an active role in the underlying plot. In
the case of the “Newburgh Four,” for example, a judge said the government “came
up with the crime, provided the means, and removed all relevant obstacles,” and
had, in the process, made a terrorist out of a man “whose buffoonery is positively
Shakespearean in scope.”

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

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

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

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

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

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

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

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

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

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

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

Illustrative examples of the cases documented in this report include:
• Targeting People with Mental or Intellectual Disabilities in Stings—
Rezwan Ferdaus: Although an FBI agent even told Ferdaus’ father his son
“obviously” had mental health problems, the FBI targeted him for a sting
operation, sending an informant into Ferdaus’ mosque. Together, the FBI
informant and Ferdaus devised a plan to attack the Pentagon and US Capitol,
with the FBI providing fake weaponry and funding Ferdaus’ travel. Yet
Ferdaus was mentally and physically deteriorating as the fake plot unfolded,
suffering weight loss so severe his cheek bones protruded, loss of bladder
control that left him wearing diapers, and depression and seizures so bad his
father quit his job to care for Ferdaus. He was eventually sentenced on
material support for terrorism and explosives charges to 17 years in prison
with an additional 10 years of supervised release.

• Use of Evidence Obtained by Coercion—Ahmed Omar Abu Ali: Abu Ali, a
US citizen, was swept up in a mass arrest campaign in Saudi Arabia in
2003. Ali alleged being whipped, denied food, and threatened with
amputation, and ultimately provided a confession he says was false to
Saudi interrogators. Later on trial in Virginia, the judge rejected Ali’s claims
of torture and admitted his confession into evidence. He was convicted of
conspiracy, providing material support to terrorists, and conspiracy to
assassinate the president. He received a life sentence, which he is serving
in solitary confinement at the supermax prison in Florence, Colorado.
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