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Washington Report on Middle East Affairs, July 2010, Pages 28-30

Special Report

New York State Capital Takes Stand Against Pre-emptive Prosecution of Muslims

By Stephen Downs, Esq.

Members of Albany’s Muslim Solidarity Committee and citizen-representatives from several area peace, justice, and civil liberties organizations march to City Hall April 5, 2010, when the Common Council approved a resolution calling for the Justice Department to investigate the convictions of “pre-emptively prosecuted” Muslims. (Photo Daniel W. Van Riper)

ON APRIL 5, 2010, the Common Council of Albany, New York voted 10-0 in favor of a resolution calling for the Justice Department to appoint a special prosecutor to review the cases of Muslims entrapped in terrorism-related cases (see box on facing page). Albany thus became the first city in the U.S. to challenge the federal government's unjust pre-emptive prosecution program, which has entrapped, framed, and sent hundreds of innocent Muslims to jail for long prison sentences.

Before its historic vote, the Common Council heard from almost two dozen speakers, including mothers and children from cases like the Newburgh 4 and the Fort Dix 5, about the suffering of Muslim families and communities ripped apart by these pre-emptive prosecutions. Twelve-year-old Lejla Duka told the Council that she was the oldest of four children, and that her father and uncles who worked in the family roofing business had all been sentenced to life imprisonment in an elaborate sting. "They were set up. This case is a lie," she said. "Really, please, we need all the help we can get." Some Council members were moved to tears and expressed shock at what the federal government was doing to Muslims. A video of the emotional and often eloquent meeting is available at <>.

What Is Pre-emptive Prosecution?

The FBI's "pre-emptive prosecution" program grew out of the hysteria following 9/11 and drew inspiration from then-Vice President Dick Cheney's "1 Percent Doctrine": if there's a 1 percent chance that a person might engage in terrorism in the future, the government must pre-empt it now by convicting the person of some contrived crime. Pre-emptive prosecution strips away the protections of the Bill of Rights on the theory that it's better for many innocent people to be incarcerated than to allow even one potential terrorist to remain free. The April 5 testimony about the suffering of many Muslim families showed why pre-emptive prosecution is illegal, unjust, and cruel.

Typically, pre-emptive prosecutions start with governmental suspicion about one or more Muslims based on secret surveillance; on associations of Muslims with others who are suspicious; or on tips. The government then concocts a plan to incarcerate the suspicious Muslim on some pretext to prevent a possible crime in the future. If no existing violation can be used as a pretext to incarcerate the target, an agent provocateur may be assigned to entrap or frame the suspicious person. Often before a pre-emptive prosecution trial, the government gives the judge secret evidence from its illegal surveillance program that the defense is not allowed to see, in order to create prejudice and get favorable rulings from the judge. Secret evidence is thus a critical part of most pre-emptive prosecutions.

In all prosecutions, the government has a legal and ethical obligation to do justice (not merely seek a conviction), to provide a fair trial (not a prosecution knowingly based on false evidence or arguments), and to provide pre-trial disclosure of all information which indicates that the defendant might be innocent or which might assist the defense ("exculpatory" information). Such information discovered during a classified surveillance operation must still be provided to the defense, or the government must drop the charges. The defendant may not be penalized because the exculpatory information is classified. Because so many pre-emptive prosecutions are based on classified information, the issue of disclosure of classified exculpatory information is always critical in such cases.

Aside from classified exculpatory material, any information indicating that the charge was a pretext, or that a defendant was deliberately entrapped or framed by the government, would also constitute exculpatory information which, under law, must be disclosed to the defense. All pre-emptive prosecutions raise the possibility that the defendants were entrapped or framed to "pre-empt" the possibility of a crime later on. Obviously the prosecutor cannot be trusted to turn over exculpatory information showing that the case being brought is, in fact, a fake and a pretext. Only an independent review of the case can establish this.

The Albany resolution was inspired in part by a July 10, 2009 report by Inspector General Glenn Fine of the U.S. Department of Justice about secret surveillance programs. The report found that there were no procedures for locating or providing exculpatory information to defendants in criminal cases arising out of such surveillance. It recommended that the Justice Department "carefully consider whether it must re-examine past cases [italics added] to see whether potentially discoverable but undisclosed [exculpatory information] was collected under the [surveillance programs], and take appropriate steps to ensure that it has complied with its discovery obligations in such cases" (p. 19).

The Justice Department never implemented these recommendations or attempted to re-examine any past cases.

The Aref Case Example

Albany was confronted with a classic pre-emptive prosecution in 2004 when a local imam, Yassin Aref, and a member of his mosque, Mohammed Hossain, were arrested by the FBI and charged with terrorist-related crimes (see Sept./Oct. 2007 Washington Report on Middle East Affairs, p. 19). The men supposedly laundered money from the sale of a missile that would be used to assassinate the Pakistani ambassador to the U.N. (The FBI acknowledged that Hossain was not a terrorist threat, but they wanted to use him to get to their real target, Aref.) Malik, an agent provocateur, first entrapped Hossain by offering to loan him a significant amount of money supposedly made by selling a missile to terrorists. Then Aref was drawn in to gratuitously witness the loan.

The government generated such fear and hysteria against the two men that even the governor of New York pronounced at a news conference that "terrorists are living among us." However, the entire plot was actually an FBI "sting" engineered by Malik to pre-emptively convict Aref because the government found his "ideology" suspicious. The government claimed, for example, that a poem written by Aref in Syria 10 years earlier showed his terrorist ideology because it used the word jihad (struggle), even though the poem was about the struggle to overthrow Saddam Hussain and thus agreed with U.S. policy at the time.

There was little evidence that Aref was told--or understood—anything about the missile plot. The government's evidence was so weak that Aref was acquitted by the jury of all the charges prior to his last conversation with Malik on June 10, 2004. In this last conversation, Malik used a code word, "chaudry," for "missile"—but the government failed to produce any evidence that Aref knew the meaning of this code word, and so he could not have understood the conversation or anything about the plot. Nevertheless, the jury convicted Aref for the counts associated with this last conversation, and he was thus successfully framed for a crime he didn't commit and indeed didn't even know about. Both Aref and Hossain were sentenced to 15 years in prison, leaving two wives and a total of 10 young children behind. Project SALAM has since filed an amicus brief (available at <>) with the court about the obvious frame-up in Aref's case.

At a post-sentencing press conference on March 8, 2007, the government prosecutors gave this classic description of "pre-emptive prosecution":

"Did he [Aref] actually engage in terrorist acts? Well, we didn't have the evidence of that, but he had the ideology...Our investigation was concerned with what he was going to do here, and in order to pre-empt anything else we decided to take the steps that we did take."

The FBI also said that it was afraid to show Aref a (dummy) missile, which he would have immediately recognized as something illegal: "If Aref saw the missile," an FBI agent stated, "he may have been spooked"—meaning Aref might have recognized that he was being involved in illegal activity and withdrawn, thus ruining the FBI's frame-up (see "It took patience to set the trap in terror sting" by Brendan Lyons in the Oct. 12, 2006 Albany Times Union).

Pre-emptive Prosecutions Across U.S.

This pattern of framing or entrapping innocent Muslims supposedly to prevent another terrorist attack has been repeated all across America. For example:

  • The Newburgh 4 were entrapped by the same agent provocateurMalikwho framed Aref; he promised large sums of money, up to $25,000, to gain help in conducting a terrorist attack, and eventually was able to ensnare four recent converts to Islam: men who were homeless, addicted to drugs, or had mental problems.
  • The Fort Dix 5 were framed by two agents provocateurs after a store clerk thought that a home video made by members of a vacationing Muslim family speaking Arabic and shooting guns at a rifle range was a terrorist cell in training. The five young men in their 20s, some with wives and children, were sentenced to life in prison plus 30 years.
  • Syed Fahad Hashmi was charged with terrorism for allowing a friend to leave a bag of clothes in his apartment for a week; the clothes eventually found their way to an al-Qaeda official, although not through Hashmi. After being kept in strict solitary confinement in Manhattan for almost three years, awaiting trial under conditions so harsh that it amounts to torture (see this issue's "Other Voices" supplement), Hashmi pleaded guilty to one count of conspiracy in return for a maximum prison sentence of 15 years—as opposed to a possible 70 years.
  • Ghassan Elashi, founder of the Holy Land Foundation, the largest Muslim charity in America, was sentenced to 65 years in jail after the government claimed that his non-terrorist charitable works in Palestine had enhanced the prestige of Hamas, the de facto government of Palestine at that time, and so constituted material support for a terrorist organization.
  • Sami Al-Arian, a university professor and outspoken advocate for Palestinian rights, also was charged with giving material support to Hamas through his speeches. Although the government could not get a jury to convict him, he finally agreed to plead guilty to a minor charge in order to get out of jail and leave the U.S. Then the government broke its promise and brought new charges against him in order to keep him locked up. After serving still more time in prison, he has been living under house arrest for nearly two years.
  • Physician Rafil Dhafir, founder of a charity called Help the Needy that sent humanitarian aid to Iraqis impoverished by the U.N. embargo in the 1990s, could not be charged with enhancing the prestige of a terrorist organization because no terrorist organizations were permitted to exist under the tyrannical rule of Saddam Hussain. Instead, the government framed Dr. Dhafir for Medicaid fraud and for violating the embargo against Iraq.

The Justice Department now claims over 390 terrorist convictions in the U.S.—many, if not most of them, phony "pre-emptive" prosecutions—and the list continues to increase. Each of these cases represents families destroyed and mothers left to raise young children without spouses and without adequate support. Each fake prosecution results in an innocent Muslim man incarcerated, often in special "Muslim" prisons known as Communication Management Units (CMUs) that harshly restrict communication with families and the outside world far beyond what ordinary prisoners endure (see May/June 2007 Washington Report on Middle East Affairs, p. 12). On March 30, with the help of the Center for Constitutional Rights, Yassin Aref and six other plaintiffs sued the U.S. government to close down the CMUs as illegal (see box; the text of the lawsuit is available at <>).

As its own inspector general recommended, the Justice Department must establish an independent prosecutor to review all the Muslim terrorism cases to determine if the defendants received discovery, justice, and a fair trial. This is what the Albany Common Council resolution calls for. It is the first government entity to call for a re-examination of these cases based on law, not on fear. Other communities must pass similar resolutions to pressure the Justice Department into restoring the rule of law that pre-emptive prosecution has stolen from our justice system. 

Stephen Downs, retired chief attorney with the New York Commission on Judicial Conduct, is a founder of Project SALAM (Support and Legal Advocacy for Muslims).



Resolution Urging the U.S. Department of Justice to Review the Convictions of Muslims Who Were "Pre-emptively Prosecuted" to Ensure Their Fair Treatment Under the U.S. Constitution and Bill of Rights

WHEREAS, the Declaration of Independence of the United States and the United States Constitution and the Bill of Rights are the cornerstone of our democracy; and

WHEREAS, since 9/11 some Muslims in the United States have been targeted by the U.S. government for increased scrutiny, surveillance and prosecution; and

WHEREAS, the United States government created a warrantless electronic surveillance program which obtained secret classified information on Americans, apparently in violation of various laws including the Foreign Intelligence Surveillance Act, and the First and Fourth Amendments to the U.S. Constitution; and

WHEREAS, the Department of Justice and the FBI created a program called "pre-emptive prosecution" in which Muslims who are not involved in criminal activity are targeted and prosecuted based on "secret evidence," often derived from warrantless electronic surveillance; and

WHEREAS, there is a substantial probability that the activities and programs of the U.S. government which target a religious minority in such a manner violate their civil rights as Americans; and

WHEREAS, in 2003 the Albany Common Council voted unanimously to object to the PATRIOT Act because of the dangers that this act posed to the civil rights and liberties of all Americans; and

WHEREAS, in 2009 the Albany Common Council voted to support immigrant rights in the City of Albany so that immigrant families would not live in constant fear of repression, jail, or deportation; and

WHEREAS, because of excessive secrecy by the U.S. government about its warrantless eavesdropping and pre-emptive prosecution programs, substantial doubt remains as to whether hundreds of Muslims were pre-emptively prosecuted, and guilty of crimes, and whether the defendants received their civil rights guaranteed under the U.S. Constitution, including the right to receive exculpatory information and a fair trial; and

WHEREAS, after Senator Ted Stevens was convicted of bribery, the Justice Department did an independent assessment of how his case was prosecuted, determined that exculpatory information had been withheld by prosecutors, and dismissed the case; and

WHEREAS, the Inspector General of the Department of Justice, in a July 10, 2009 report on U.S. surveillance programs, recommended "that Department of Justice carefully consider whether it must re-examine past [terrorism] cases to see whether potentially discoverable but undisclosed Rule 16 or Brady material was collected under the President's Surveillance Program, and take appropriate steps to ensure that it has complied with its discovery obligations in such cases" (report p. 19).

NOW, THEREFORE, BE IT RESOLVED, that the Common Council of the City of Albany requests that the U.S. Department of Justice implement the recommendation of its own Inspector General, and establish an independent panel within the Department of Justice, similar to what was done in the Stevens case, and to what was recommended by the Inspector General, to review all of the convictions of Muslims who were "pre-emptively prosecuted" to determine if these defendants were properly given exculpatory information and other rights of discovery to which defendants in criminal prosecutions are entitled, and whether these prosecutions in all ways met the high standards of truth, openness, fairness, and justice that are embodied in the U.S. Constitution and the Bill of Rights.

BE IT FURTHER RESOLVED, that the Common Council of the City of Albany requests that the Clerk of this Council forward copies of this resolution to United States Senators Kirsten Gillibrand and Charles Schumer and United States Representative Paul Tonko.



CMUs: The Federal Prison System's Experiment in Social Isolation

In 2006, the Federal Bureau of Prisons (BOP or "Bureau") secretly created the Communications Management Unit (CMU), a prison unit designed to isolate and segregate certain prisoners in the federal prison system from the rest of the BOP population. Currently, there are two CMUs, one located in Terre Haute, Indiana and the other in Marion, Illinois. The CMUs house between 60 and 70 prisoners in total, and over two-thirds of the CMU population is Muslim, even though Muslims represent only 6 percent of the general federal prison population.

Unlike other BOP prisoners, individuals detained in the CMU are completely banned from any physical contact with visiting family members and friends, and other types of communication are severely limited, including interactions with other prisoners and phone calls with friends and family members.

Individuals detained in the CMU receive no explanation for their transfer to the unit or for the extraordinary communications restrictions to which they are subjected. Upon designation to the unit, there is no meaningful review or appeal process that allows CMU prisoners to be transferred back to the general population. Many CMU prisoners have neither significant disciplinary records nor any communications-related infractions. However, bias, political scapegoating, religious profiling and racism keep them locked inside these special units. The Bureau's purpose and process for designating federal prisoners to the CMU remain undisclosed.

—Center for Constitutional Rights