[Ppnews] To catch a terrorist: The FBI hunts for the enemy within

Political Prisoner News ppnews at freedomarchives.org
Tue Aug 30 14:51:51 EDT 2011



To catch a terrorist: The FBI hunts for the enemy within

By <http://harpers.org/subjects/PetraBartosiewicz>Petra Bartosiewicz
http://harpers.org/archive/2011/08/0083545

Petra Bartosiewicz also wrote 
<http://harpers.org/archive/2009/11/0082719>“The 
Intelligence Factory: How America makes its 
enemies disappear” for Harper’s Magazine.

To fear and dehumanize alien Others, to 
ruthlessly hunt them down, is truly 
American.­Carroll Smith-Rosenberg, This Violent Empire

In June 2008, I attended a meeting in Albany 
organized by the FBI and designed to quell the 
growing fury over the arrest and prosecution of 
two local Muslim immigrants, Yassin Aref and 
Mohammed Hossain. The previous year Aref and 
Hossain, both leaders at a local mosque, had been 
sentenced to fifteen years in federal prison in 
connection with their role in a terrorism scheme 
that the press had dubbed the Albany “missile 
plot.” According to the FBI complaint, the pair 
had agreed to “make money through jihad” by 
laundering the proceeds from the sale of a 
shoulder-launched missile that a Pakistani 
militant group, Jaish-e-Mohammed, intended to use 
to assassinate a Pakistani diplomat in New York 
City. Yet in announcing the arrest of Aref and 
Hossain, the FBI allowed that their crimes were 
“not real” and that the public had never actually 
been in jeopardy. The plot had been a sting 
operation wherein the FBI concocted the 
assassination plan and furnished the weapon. 
Though much of the evidence against the two men 
remained classified, it was unclear that either 
man even knew he was involved in a terrorist plot.

When these details emerged, both Muslims and 
non-Muslims in Albany were outraged. The 
investigation had targeted two well-known members 
of the community, men with no prior criminal 
record and no history of violence. To allay the 
community’s concerns, the FBI embarked on a kind 
of public-relations initiative by organizing a 
series of meetings with local leaders. At the 
meeting I went to with half a dozen activists, we 
were told we could take notes but not record the 
proceedings, though one of the attendees, in what 
she considered an act of civil disobedience, 
surreptitiously taped them anyway. After some 
opening statements from FBI spokesman Paul 
Holstein, who told us that the point of the 
meeting was to prove that the FBI “did the right 
thing,” we watched a Power­Point presentation 
that began with ominous chanting, which I found 
out later was an Islamic prayer song. The first 
image identified the sting operation by its code 
name, Green Grail, and showed a photograph of the 
defendants with glowering expressions as guards 
led them in shackles from Albany’s federal courthouse.

Following the presentation, the agent in charge 
of the case, Tim Coll, explained how the FBI had 
built its investigation, which began shortly 
after the 9/11 attacks when one of the founders 
of Aref and Hossain’s mosque, a man named Ali 
Yaghi, was “observed celebrating the 9/11 attacks 
on the streets.” Yaghi, though never charged with 
any terrorism-related crime, was arrested and 
deported soon after, but the mosque remained 
under surveillance. The FBI subsequently learned 
Aref had called a “hot” telephone that 
investigators believed was a possible Al Qaeda 
contact number in Syria, where Aref had once 
lived. Coll also recounted how in a “dumpster 
dive” conducted by agents in a separate case in 
Syracuse, Aref’s name had turned up in a letter 
that described him as a “loyal representative” of 
a group believed to have offshoots connected to Al Qaeda.

Over the course of the eight-month sting 
operation, beginning in July 2003, the 
government’s informant, posing as a wealthy 
Pakistani businessman, befriended Hossain, a 
pizzeria owner and father of six. The informant 
visited Hossain regularly, eventually offering to 
loan him $50,000 to bolster his struggling 
business. FBI agents would later acknowledge that 
Hossain was nothing more than “a way to get in,” 
a means to catch Aref, who, in keeping with 
Islamic tradition, was brought in to witness the handover.

What made the deal illegal, according to 
prosecutors, occurred four months into the 
operation during a meeting in the informant’s 
office. Pulling back a tarp in his stockroom to 
reveal a shoulder-launched surface-to-air 
missile, the informant told Hossain, “I also do 
this business for my Muslim brothers.” 
Prosecutors claimed that Hossain should have been 
able to deduce that the loan he was receiving 
might be drawn from proceeds of an illegal 
weapons sale, and that by accepting the loan he 
had opened himself to charges of money 
laundering. Aref himself never saw the weapon. 
During one of the exchanges of cash­all of which 
were documented on grainy black-and-white 
surveillance footage­the missile’s trigger 
system, which looked not unlike a staple gun, was 
visible on a table. Prosecutors alleged Aref had 
seen the trigger and thereby had entered the 
conspiracy to “assist in money-laundering.”

It’s difficult not to make the FBI’s case sound 
contrived in this recounting, but the agents I 
spoke with seemed to genuinely believe that Aref 
was a potential terrorist. Whatever the 
peculiarities of the plot they used to ensnare 
him, Aref was an extremist at heart. Their belief 
was supported by materials they’d found at his 
apartment after his arrest, including poetry he’d 
written with phrases like “raise the jihad 
sword,” in a diary he’d kept before coming to the 
United States, in which he also chronicled 
meetings with individuals who were known to have 
discussed attacking the United States.

At the time of Aref and Hossain’s arrest, U.S. 
Deputy Attorney General James Comey admitted it 
was “not the case of the century.” Nevertheless, 
the Albany missile plot became one of the 
government’s more lauded victories in the fight 
against domestic terrorism­even though, by the 
government’s own acknowledgment, it involved no 
terrorists, no terrorism plot, and a missile 
provided by the FBI. When asked at a press 
conference following the sentencing whether there 
was anything connecting the defendants, 
particularly Aref, to terrorism, the prosecuting 
attorney answered, “Well, we didn’t have the 
evidence of that, but he had the ideology.”

----------
In the months after 9/11, the FBI deployed its 
investigative apparatus as a blunt weapon. In 
November 2001, the Department of Justice began 
conducting “voluntary interviews” with 5,000 
Middle Eastern non-citizens. Hundreds of FBI 
agents were dispatched across the country to 
conduct the interviews, with standard questions 
like “Are you aware of anybody who reacted in a 
surprising way about the terrorist attacks? Maybe 
you got to work and maybe a coworker said, ‘Good, 
I’m glad that happened’?” [1] At the same time, 
Attorney General John Ashcroft instituted a 
“Responsible Cooperators Program” that offered 
U.S. citizenship to undocumented and 
out-of-status immigrants who could provide useful 
information about the 9/11 attacks.

The Justice Department’s Office of the Inspector 
General later described the bureau’s efforts as 
“indiscriminate,” noting that “no distinction was 
generally made between the subjects of the lead 
and any other individuals encountered at the 
scene ‘incidentally.’” One paper told of five 
Arab-American Boy Scouts from Michigan detained 
with “fudge bags in hand” by FBI agents after 
they were spotted taking photographs while on a 
scenic ferry ride. Law enforcement detained more 
than 1,200 individuals, mostly men of Middle 
Eastern descent, on immigration or other 
low-level violations. Detainees were often held 
in solitary confinement, and under the DOJ’s 
“hold until cleared” policy they could be 
incarcerated indefinitely. The arrests were 
carried out largely in secret, protected from 
scrutiny by an order barring the press and the 
public from detention hearings to prevent “irreparable harm to public safety.”

These mass roundups, of course, echoed earlier 
moments in our history. In the run-up to World 
War I, President Woodrow Wilson decried the 
danger of “hyphenated Americans,” pointing 
specifically to Irish and German immigrants. 
During World War II, 110,000 Japanese Americans 
were interned without cause. These reactions were 
obviously hysterical, but were also temporary; 
the more recent emergency measures, however, have 
been institutionalized as a permanent 
law-enforcement priority. This new precedent 
began within days of 9/11 when, amid the 
finger-pointing over missed clues and 
intelligence failures, FBI director Robert 
Mueller issued a memo to his field offices 
describing a new policy of 
“forward-leaning­preventative­prosecutions.” 
Mueller wrote that “while every office will have 
different crime problems that will require 
varying levels of resources,” the FBI’s “one set 
of priorities” is to stop the next terrorist attack.

This memo, which detailed policies for 
“preemptive” operations, explains how, nearly a 
decade into our “war on terror,” Justice 
Department officials can claim we’ve caught 
hundreds of people domestically whom we call 
terrorists, while at the same time, according to 
the DOJ’s own statistics, only one person­an 
Egyptian immigrant who opened fire on an El Al 
ticket line at Los Angeles International Airport 
in 2002­has actually committed an act of 
terrorism on American soil. Instead, the U.S. 
government has amassed more than 1,000 federal 
“terrorism-associated” prosecutions by expanding 
its investigative purview beyond actual attacks, 
or even “ticking time bomb” threats, to focus 
almost exclusively on a theoretically unlimited 
array of potential threats. To catch a successful 
terrorist under this system would constitute a 
failure of law enforcement, because the 
perpetrators would have already committed the 
act. Rather, these agents are seeking 
“pre-terrorists,” individuals whose intentions, 
rather than actions, constitute the primary threat.

The pursuit of hypothetical enemies has long been 
considered illegal in the international arena. 
(Recall, for example, the labeling of political 
dissidents as “intellectual terrorists” under 
various CIA-backed regimes in Latin America 
during the 1970s.) But while such questions have 
been debated in relation to foreign 
interventions, the preemptive model of law 
enforcement has unfolded domestically with little 
dissent. The FBI’s own storied practice of spying 
on “subversive” Americans, including civil rights 
leaders, socialists, and antiwar protesters, was 
supposed to have ended in the 1970s with the 
disbandment of J. Edgar Hoover’s COINTELPRO. The 
Church Committee, which investigated domestic 
spying by the FBI and CIA after Watergate, found 
that during the fifteen years that COINTELPRO was 
active, the FBI “had conducted a sophisticated 
vigilante operation” that included “secret 
informants 
 wiretaps, microphone ‘bugs,’ 
surreptitious mail opening, and break-ins.” After 
the committee’s report, Congress passed 
restrictions designed to prevent such 
“forward-leaning” investigations by putting a 
wall between intelligence gathering and law enforcement. [2]

The Patriot Act removed that wall, enhancing the 
FBI’s surveillance capabilities through new 
powers such as roving wiretaps, “sneak and peek” 
search warrants­which allow agents to search a 
suspected terrorist’s home without prior 
notice­and the expanded use of “national security 
letters,” which give agents access to personal 
records without requiring a court order. Where 
once the FBI’s chief work product, and a chief 
metric by which agents were judged, was arrests 
that could withstand the scrutiny of prosecution 
in federal court, a new set of metrics has been 
instituted to reflect an agency retrofitted as an 
intelligence-gathering organization. Evidence of 
this shift can be seen in FBI director Mueller’s 
periodic “accountability” video conferences, 
known as “Strategy Performance Sessions,” which 
are patterned after the NYPD’s CompStat 
initiative. Top officials in each FBI field 
office brief Mueller on a series of 
intelligence-driven “performance indicators,” 
such as the number of “sophisticated 
investigations” employing wiretaps or 
surveillance, the number of informants deployed 
in the field, and the number of terrorist threats 
disrupted. The FBI has also adopted the 
intelligence community’s practice of compiling 
raw field data into “information reports,” which 
are disseminated to law enforcement and are based 
on unvetted information that can amount to 
nothing more than speculation or rumor.

Whereas the new intelligence apparatus has 
increased the scope of the FBI’s work, other 
regulations have lowered the burden of proof 
necessary to launch an investigation. In 2008, 
the DOJ’s Guidelines for Domestic FBI Operations 
was revised under Attorney General Michael 
Mukasey. In this new version the FBI no longer 
has to demonstrate a “predicate” to an 
investigation, effectively giving the agency the 
power to spy on whomever it wishes, for however 
long it wishes, even if that individual has never 
committed a crime or, more important, is not even 
suspected of one. According to data released by 
the DOJ, in the first four months after these 
rules were instituted, agents launched 11,667 
such low-level inquiries, known as “assessments.” 
(The Justice Department is currently working on 
another revision of the FBI’s internal 
guidelines, and the rules governing assessments 
are expected to be loosened further.)

Although the FBI’s operational rules explicitly 
ban profiling solely on the basis of race, they 
do not forbid using religion or national origin 
to target suspects. Agents can spy on anyone 
“reasonably believed to be associated with a 
particular criminal or terrorist element of an 
ethnic community,” to track “ethnic-oriented 
businesses and other facilities” if “members of 
certain terrorist organizations live within a 
certain concentrated community of the same 
ethnicity.” The Brennan Center for Justice at New 
York University’s law school summed up the 
practices by saying that the guidelines “envision 
an FBI that vacuums up all the information made 
available to it by permissive investigative 
rules, disseminates the information to other 
government agencies, and retains it indefinitely.”

----------
Yassin Aref, a Kurdish refugee from Iraq, was 
first interviewed by the FBI during their initial 
post-9/11 sweep. The agent’s notes from the 
meeting are unremarkable. Aref arrived in the 
United States in 1999 and was soon thereafter 
hired as the imam of the Central Avenue mosque, 
where he earned $500 a week. Still, after the 
interview agents kept an eye on Aref’s mosque, 
installing cameras aimed at the front and rear 
entrances. (When I asked Tim Coll whether he had 
also bugged the mosque, his face turned red and he wouldn’t answer.)

Aref was interviewed again in April 2003, when, 
in the first weeks of the Iraq invasion, the FBI 
began to question some 11,000 individuals who had 
ties to the country. In this meeting, the two 
agents spoke with him at greater length, and he 
told them how he and his wife had fled Iraq in 
1995 to escape the persecution of the Ba’athist 
regime. According to one of the investigating 
agents’ notes, Aref offered that “the FBI could 
keep a close eye on him and watch everything he 
does,” and that “due to his lack of familiarity 
with the American language and legal system,” he 
asked that the FBI “let him know if he does or says anything illegal or wrong.”

In the spring of 2003, U.S. forces raided 
suspected insurgent camps throughout Iraq. 
Soldiers found Aref’s name and Albany phone 
number in the course of three such raids, 
including one outside the town of Rawah at what 
was believed to be a training camp for the 
extremist group Ansar-al-Islam, where his name 
turned up amid “pocket litter” scattered on the 
ground at the site. Next to his name was a word 
that U.S. military intelligence officers 
translated as the Arabic term for “commander.” 
Shortly after the raid, the FBI launched its sting operation.

To get closer to Aref, the FBI turned to an 
Albany man they’d arrested more than a year 
earlier: Shahed Hussain, a Pakistani immigrant 
who went by the nickname Malik and who had been 
busted helping immigrants fraudulently obtain 
driver’s licenses, feeding them answers on the 
test while working as their translator. Malik was 
facing prison time and possible deportation to 
Pakistan, where, Coll believed, he was wanted for 
rape or murder. So Malik was receptive when the 
FBI offered him a cooperation deal. Coll 
explained that Malik’s mission, in exchange for 
“consideration” at his sentencing, was to root 
out possible terrorist threats. “I told him that 
he has to produce,” Coll said. “I explained it’s 
like playing pinball. Keep scoring as many points 
as you can without people knowing your identity.”

Malik first approached Mohammed Hossain at his 
pizzeria, presenting himself as a wealthy 
businessman in need of spiritual counseling. For 
months he met with Hossain, bringing toys for 
Hossain’s children and talking about his own 
religious education. The conversations frequently 
turned to politics, but Hossain proved not to 
have extremist leanings. Typical of these 
exchanges, Malik asked Hossain about the World 
Trade Center attacks. “Was it good or bad?” Malik 
asked, and Hossain answered, “Of course, this was 
bad.” When asked how he defined the word “jihad,” 
Hossain answered, “You stopped all your 
considerable worldly business to come here and 
engage in a few words about God. This is called 
jihad.” But he proved more pliable on the issue 
of money, admitting to Malik that he was having 
“a little bit” of cash-flow trouble on a couple 
of rental properties he owned. At the behest of 
the FBI, Malik offered Hossain a loan.

In November 2003, five months into the operation, 
Malik showed Hossain the missile. In the FBI’s 
surveillance footage, Malik can be heard 
describing his business importing merchandise 
from China. He then tells Hossain, almost 
offhandedly, that “we also import weapons.” He 
draws back the tarp to reveal the missile and 
asks Hossain whether he knows what it is. “No,” 
says Hossain. Malik tells him, “This is for 
destroying airplanes.” Hossain says, “But it’s 
not legal.” Malik laughs, “What is legal in the world?”

The link to Aref was a stroke of luck for the 
FBI. Hossain himself suggested the imam be 
brought in to witness the loan, which was made in 
installments. The handovers of cash were 
themselves prosaic, but Malik soon turned to the 
young imam for spiritual guidance, and the two 
began meeting, occasionally sitting at a local 
Dunkin’ Donuts, where Malik increasingly brought 
up controversial topics. Aref didn’t speak 
Malik’s native Urdu, so the two conversed in 
broken English. The prosecution would later point 
to a handful of conversations incriminating Aref, 
including one at his house in February 2004 
during which Malik mentioned that Aref and 
Hossain should not go to New York City the 
following week because there would be a missile 
attack. The transcript of this, the most damning 
conversation in the eight-month sting, is not 
available because Malik’s hidden tape recorder 
supposedly fell off him. Nevertheless, according 
to the FBI, Aref responded by asking Malik to 
leave his home. Aref later claimed that he 
thought Malik was joking and warned him not to 
make such comments, which prosecutors said meant 
that Aref was aware of the missile conspiracy. 
Several months later, Malik once again discussed 
his other business in front of Aref and made 
references to New York, but he referred to the 
missile by the code word “chaudry,” which Malik 
never explained to Aref. During that same 
conversation, Malik mentioned that he was afraid 
he’d have to hide out from the FBI. Aref said 
that he had no such qualms because he wasn’t doing anything wrong.

----------
Informants have been deployed by law enforcement 
for centuries, but in these recent terrorism 
investigations they have been given a more active 
role in shaping cases, often encouraging or even 
coercing individuals to commit violent acts 
toward which the individuals have otherwise shown 
no predisposition. Such sting operations present 
a disturbing kind of theater: the government 
provides the script, the arms, the cash, and 
other props, and offers logistical support.

In at least one instance, in Chicago last year, 
the FBI instructed informants to pay a suspect so 
he could quit his day job and focus on jihad. In 
the case of Hemant Lakhani, a British businessman 
who was convicted in 2005 of providing material 
support to terrorists for brokering the sale of a 
surface-to-air missile, law enforcement ended up 
on both sides of the arms deal, as buyer and 
seller, after the informant discovered that 
Lakhani simply didn’t have the connections to 
procure the missile. The informant in that case, 
pivotal in shepherding Lakhani through the sale, 
had previously worked with the DEA, but after he 
incriminated an innocent man in the course of a 
drug sting, his handler had given him the 
equivalent of a “burn notice.” In the desperate 
post-9/11 environment, the FBI hired him anyway.

Other informants have had equally dubious 
qualifications. The informant in a 2007 plot to 
blow up jet fuel tanks at JFK Airport was a 
former New York drug kingpin who had conspired to 
murder a rival dealer and been busted with $2 
million in cocaine. The Miami Seven, arrested in 
2006 for plotting an attack on the Sears Tower in 
Chicago, had their plot concocted for them 
entirely by a pair of FBI informants, one of whom 
had a history of assault; the other sneaked tokes 
off-camera during the surveilled meetings. In 
2004 an informant was deployed against a Yemeni 
sheikh in Brooklyn, but after becoming 
disgruntled when the FBI’s promises of riches 
never came to fruition, he set himself on fire in 
front of the White House in protest.

Informants in some cases have been so 
heavy-handed that they were dismissed by the 
people they targeted. At a California mosque last 
year an informant talked about jihad so 
aggressively that the mosque’s members took out a 
restraining order to have him barred from the 
premises. (The informant, Craig Monteilh, who was 
paid $177,000 for fifteen months of service, was 
later convicted of grand larceny in an unrelated 
incident and subsequently sued the FBI, alleging 
that the agency had revealed his informant 
status, leading to an attack by a fellow prisoner during his incarceration.)

The informants in these sting operations were 
deployed to supply not just opportunities for 
criminal acts but also the inflammatory rhetoric 
that would justify terrorism charges. In a 
supposed plot to attack the United States Army 
Base in Fort Dix, New Jersey, the FBI sent two 
informants to infiltrate a group of suspected 
terrorists after a nearby Circuit City reported a 
suspicious video the five men had brought in to 
be copied. (The tape showed footage of what the 
men later claimed was a vacation in the Poconos, 
where they can be seen riding horseback, 
snowmobiling, and firing guns at a rifle range, 
while shouting “Allahu Akbar.” The government 
would later claim that this was a training mission.)

During the fifteen-month sting operation that 
followed, one of the informants urged the 
suspects to join their Muslim brothers overseas. 
“Don’t you want to go and die with them, man?” he 
said. The other, Mahmoud Omar, an Egyptian who 
had agreed to work for the FBI after facing 
deportation for a bank-fraud conviction, 
initially suggested the plot to kill American 
soldiers at the army base. Omar told the men that 
if they appointed him as their leader he would be 
the “brain” of the operation. It was Omar who got 
them talking about the use of Molotov cocktails, 
grenade launchers, remote-controlled detonators, 
and roadside nail bombs. They also discussed 
purchasing a house near the base as a sniper 
station, but when the men failed to follow 
through with the plans, Omar grew frustrated. 
“You talk, but you don’t do nothing,” he told one 
of the suspects. The five men were arrested 
before they could devise a specific plan or set a 
date for the attack. Four of the defendants 
received life sentences, and the fifth was 
sentenced to thirty-three years in prison.

John Pikus, the agent who ran Albany’s branch 
during Aref and Hossain’s trial (and has since 
retired), told me that given the intelligence the 
agency had at the time, they believed Aref was “a 
bad person.” When I pressed him on whether he 
felt his informant had ultimately flushed out a 
terrorist, he hedged. “Well, you’re not going to 
get me to say he was absolutely guilty,” he told 
me. Still, Pikus insisted that the FBI had to 
pursue the sting against Aref. Otherwise, he 
said, “he would have walked around with an intelligence case on him forever.”

----------
In August 2004, Aref was arrested on his way home 
from evening prayers at the Central Avenue 
mosque. Hossain was plucked from his car by 
heavily armed agents. Later that same night the 
FBI conducted searches of both men’s homes and of 
the mosque, where they wore sterile white booties 
over their shoes out of respect for Islamic 
custom. They found nothing notable at the mosque, 
but at Aref’s house they discovered his diary 
with the poetry about raising the “jihad sword.” 
Agents also found the phrase “plan in America” in 
the diary, along with lists of meetings with 
individuals including one with Mullah Krekar, who 
had been a leader in the Islamic Movement for 
Kurdistan, where Aref had worked while living as 
a refugee in Syria. Coll told me the agents felt “vindicated” at the find.

Not long into the discovery process, however, 
lawyers for Aref and Hossain found a stunning 
mistake in the evidence arrayed against their 
clients: the word on the mysterious scrap of 
paper retrieved in Rawah, which had been key to 
launching the investigation, had been 
misunderstood by U.S. intelligence. The word kak, 
translated as the Arabic for “commander,” was in 
fact Kurdish for “brother.” After this mix-up 
came to light, prosecutors sought top-secret 
protection for other documents in the case, while 
also refusing to confirm, even to the presiding 
judge, that any additional classified material 
existed. Prosecutors also demanded that defense 
attorneys review evidence only in the presence of 
a Justice Department specialist, a request the 
judge eventually denied. “I think they are trying 
to render meaningless the right to counsel, the 
right to present a defense,” Aref’s attorney, 
Terence Kindlon, told the New York Law Journal.

Hossain’s lead attorney, Kevin Lui­brand, who had 
been a U.S. Army captain and worked in the JAG 
Corps at Walter Reed Army Medical Center, where 
he had top-secret security clearance, told me he 
was forced to undergo an eight-month security 
check before he could view any classified 
evidence. Between the intelligence gathered 
overseas and the months of domestic surveillance, 
the attorneys believed the prosecution possessed 
more incriminating information that the defense 
had yet to see. “They kept making it sound like 
they had all these supersecret documents,” said 
Luibrand. The day he and Kindlon were finally 
granted clearance, they headed to two secure 
evidence rooms at the federal courthouse in 
Albany that had been set up specifically for 
their use. “A key was given to me, and a key was 
given to Kindlon. There was a safe in each room,” 
Luibrand told me. “We expected to view voluminous 
documents. Instead, there was one piece of paper 
in the safe, and it had nothing to do with my 
guy.” The single document that they’d been shown, 
which remains classified, was never presented in court.

With the evidence they did have, the defense 
teams were faced with the task of proving that 
the seemingly damning intelligence gathered 
against their clients was not what the FBI 
thought it was. The prosecution argued that 
“cryptic notes” from Aref’s diary suggested he 
was an agent of the Islamic Movement of Kurdistan 
sent to the United States by one of its leaders, 
Krekar, a wanted terrorist, in order to carry out 
a “plan in America.” But the United States had 
classified Krekar as a terrorist only in 2003, 
after he founded Ansar al-Islam, a radical 
offshoot of the IMK. Aref left Syria in 1999, 
when the IMK was still considered a U.S. ally. At 
the time Aref worked there, the group supported 
the U.S. effort to overthrow Saddam Hussein, and 
the group’s primary goal was to establish an 
independent Kurdish state. When the defense 
finally got their hands on the diary, over a year 
into the case, they discovered that the “plan in 
America,” was a mistranslation of “America’s 
plan,” which additional diary entries made clear 
was actually the U.S. effort to topple Saddam’s regime.

When I later met with the lead prosecutor in the 
case, William Pericak, I asked about the diary 
translation, and about the other intelligence the 
government had, like Aref’s numerous phone calls 
from Albany to the IMK offices in Syria, which 
the government found suspicious but Aref said 
were his only way to get news about his friends 
and family back in Kurdistan. “I’m the first to 
say that any individual piece of information here 
is capable of innocent explanation,” Pericak told 
me. “It’s also capable of very sinister inference.”

At the trial, Pericak showed no such ambivalence, 
though he made clear to the jury that “we are not 
proving that Mr. Aref is a terrorist,” only that 
Aref “intended to help Malik disguise where the 
money came from.” (During the proceedings, the 
rooftop of the federal courthouse was lined with 
sharpshooters, a precaution that could not but 
give jurors the impression that the men on trial were very dangerous.)

Just as the law-enforcement community has been 
retrofitted with enhanced intelligence-gathering 
capabilities, the prosecution of terrorism cases 
in the federal courts has been subject to a 
series of new security measures reminiscent of 
those employed against enemy combatants in 
military tribunals. The government regularly asks 
for and receives sweeping protective orders that 
bar from public view even benign information like 
high school transcripts. The Classified 
Information Procedures Act, whose original intent 
was to keep witnesses from exposing government 
secrets in court, is now used to shield 
“sensitive” information not only from defendants 
and their counsel but sometimes from the 
prosecution as well. Syed Hashmi, a U.S. citizen, 
pleaded guilty to knowingly hosting an Al Qaeda 
operative at his apartment. His attorney, Sean 
Maher, told me that the expansive security 
restrictions placed on evidence make it difficult 
for defendants like Hashmi to assist in their own 
defense. As an example­which, because of those 
same restrictions, he could not confirm actually 
applied to Hashmi­he said a defense attorney 
could be prevented from showing his client 
something as basic as photos of a potential witness.

The use of secret intelligence gathered both 
domestically and overseas to build cases also 
allows for the possibility that the evidence may 
have been elicited under torture. In 2005, jurors 
were shown a videotaped confession during the 
trial of Abu Ali, a U.S. citizen accused of 
plotting to assassinate President Bush. Ali’s 
confession was extracted by Saudi Arabian secret 
police, who, his lawyer claimed, whipped him and 
threatened him with dismemberment over the course 
of forty-seven days of interrogation. Defense 
attorneys were not permitted to present evidence 
that supported the allegations of torture during 
the trial because of national-security 
restrictions. In a statement that seems more 
applicable to the courts of Iran or Syria, 
Amnesty International declared that such an 
omission had “cast a dark shadow over the fairness of the trial.”

Despite these troubling cases, the domestic 
prosecution of terrorists has largely managed to 
avoid the censure that has befallen the United 
States’ international “war on terror,” with its 
“enhanced interrogations” of prisoners overseas 
and other human rights violations. Instead, the 
number of domestic terror cases is likely to 
grow, especially as more Guantánamo detainees are 
tried in the United States, where, at least 
theoretically, defendants will enjoy due process and impartial judgment.

----------
A racketeer, writes the historian Charles Tilly, 
is one who “creates a threat and then charges for 
its reduction.” When governments, which Tilly 
describes as “specialists in coercion,” create 
threats and then offer citizens protection from 
those threats, the state is running a protection 
racket. The prosecutions that have emerged under 
the preemptive model evince just such a quality. 
Through these conjured threats, the public is 
treated to a simulation of a real terrorist 
attack, yet at each post-arrest press conference 
is reassured that the police were there every 
step of the way, and that, as was made clear in 
the Albany case, “there was never any danger.”

In December of last year, Attorney General Eric 
Holder spoke before a gathering of Muslim leaders 
and described preemptive operations as an 
“essential law-enforcement tool.” He made, he 
said, “no apologies for how the FBI agents 
handled their work.” Yet while these cases 
certainly demonstrate that the right enticements 
can persuade some individuals to break the law, 
there’s little evidence that they make us safer. 
On the contrary, in every instance since 9/11 
when an actual terrorist attack has been 
attempted, it failed not because of enhanced 
law-enforcement initiatives but as a result of 
the perpetrator’s incompetence. The 2002 “Shoe 
Bomber,” Richard Reid, was thwarted by an alert 
stewardess in his attempt to light homemade 
explosives hidden in his sneakers midway through 
a flight from Paris to Miami; the 2009 “Underwear 
Bomber,” Umar Farouk Abdul­mu­tallab, failed to 
ignite the plastic explosives sewn into his 
underwear, in the end only scorching himself; and 
the 2010 “Times Square Bomber” Faisal Shahzad’s 
homemade explosive device, left in the back of a 
parked SUV, simply didn’t detonate.

The fortunate inability of these individuals to 
carry out their attacks was interpreted not as a 
failure of law enforcement but as evidence of a 
need for further increases in security, 
surveillance, and intelligence-gathering 
authority. Although Shahzad was questioned under 
the existing “public safety exception” to the 
Miranda rule (and, according to the FBI, 
continued to cooperate after being read his 
rights), lawmakers, led by Senator Joseph 
Lieberman, used his arrest to call for the 
suspension of Miranda warnings for all terrorism suspects.

The terrorism-protection racket, however, has not 
troubled most Americans, in part because it has 
been leveled almost entirely against the nation’s 
already marginalized Muslim population. This is 
no accident, given that for the past decade the 
“war on terror” has been marketed as a fight 
against radical Islam. Despite the Obama 
Administration’s assertions that it is not 
targeting Muslims, and despite cosmetic changes 
to the official language with which terrorist 
threats are discussed by the government­the 
National Counterterrorism Center, for example, 
urges law enforcement to “avoid labeling 
everything ‘Muslim’”­the current administration 
has not only maintained the previous 
administration’s policies but has, in fact, 
institutionalized and expanded them. The pace of 
informant-led stings has picked up, with alleged 
“pre-terrorists” ensnared in Oregon, Texas, and 
Washington, D.C., in recent months. In a 
revealing moment before a congressional Homeland 
Security committee last September, FBI director 
Mueller, one of the few holdovers from the Bush 
presidency, admitted that terrorism in the United 
States is really a Muslim problem, saying that 
his “message to the Muslim community is, the 
worst thing that could happen to the Muslim community is another attack.”

Even as the FBI focuses on stopping attacks 
perpetrated by radical Muslims, law enforcement 
has avoided branding violence from other 
extremist groups as terrorism. Members of the 
Hutaree Christian militia, who were arrested in 
March 2010 for plotting to kill police officers 
with explosives, were never referred to by the 
FBI as terrorists, despite being indicted on 
charges almost identical to those brought against 
the Times Square bomber. According to a recent 
Washington Post article, Homeland Security all 
but stopped investigating violent radicalization 
threats unrelated to Islam in 2009, after a 
Homeland Security report on right-wing extremism, 
which concluded that “white supremacist lone 
wolves posed the most significant domestic 
terrorist threats,” drew the ire of conservative 
groups. The agency responded to the criticism by 
gutting the office that analyzed domestic 
extremism. This year, Representative Peter King 
of New York, chairman of the House Homeland 
Security Committee, held hearings on the 
“radicalization” of American Muslims, rejecting 
requests from fellow lawmakers to include other 
types of homegrown threats, this despite the fact 
that since 2001, more American deaths have been 
caused by non-Muslim extremists than by Muslims.

And while right-wing radicals and white 
supremacists have been given less attention, the 
Homeland Security apparatus has been wielded in 
full force against others deemed enemies of the 
state, particularly those who undermine the 
interests of Congress’s chief lobbyists. The 
expanding category of national-security threats 
includes animal- and environmental-rights 
activists as well as left-leaning political 
protesters, whether antiglobalist, 
anticapitalist, or antiwar. Enhanced surveillance 
and wiretapping powers initially passed under the 
Patriot Act can now be used against citizens who 
are merely “suspected of associating with radical 
activists.” So, for example, an NGO whose offices 
were raided last year by the FBI in connection 
with a “domestic terrorism” investigation turned 
out to be working on a humanitarian mission to 
Palestine, where, unbeknownst to the activists, 
they’d been accompanied by an undercover FBI 
agent. And, as the New York Times recently 
reported, the FBI targeted a self-described 
anarchist, Scott Crow, in Austin, Texas, who was 
reportedly attending meetings at which 
environmental issues were discussed. “Al Qaeda 
and real terrorists are hard to find,” mused Crow. “We’re easy to find.”

The Animal Enterprise Terrorism Act, passed in 
2006, expanded the scope of “domestic terrorism” 
to include any “interference” with such entities 
as medical researchers, grocery stores, zoos, and 
clothing stores. The measure, which was promoted 
by lobbyists working for the biomedical industry, 
covers, along with acts of vandalism, virtually 
anything that can affect a company’s bottom line. 
Another bill, the Violent Radicalization and 
Homegrown Terrorism Act, introduced in 2007 and 
passed in the House but not the Senate, called 
for a national commission to investigate 
potential domestic extremism. The bill was 
reportedly ghostwritten by the RAND Corporation, 
which had previously warned that the danger of 
“homegrown terrorism” is not merely from jihadist 
sleeper cells but from “anti-globalists” and 
“radical environmentalists” who “challenge the 
intrinsic qualities of capitalism.”

One of the outcomes of these preemptive policies 
has been an unprecedented integration of all 
levels of law enforcement. Beginning in 2003, the 
Department of Homeland Security established a 
nationwide network of “fusion centers,” staffed 
by a combination of federal, state, and local law 
enforcement, which act as intelligence-data 
repositories. Under the rubric of 
“intelligence-led policing,” these centers are 
intended to bring the beat cop to the front lines 
of domestic intelligence-gathering. The fusion 
centers represent a consolidation of 
data-gathering on American citizens. While the 
intent is ostensibly to disrupt another terrorist 
attack, the majority of resources have been 
devoted to solving common crimes. According to 
statistics reported by the federal courts, the 
Patriot Act’s “sneak and peek” warrants were 
issued 2,332 times between October 2006 and 
October 2009. Only 1 percent of sneak-and-peeks 
were used in terrorism-related cases; 69 percent 
were for drug-related investigations.

The chief work products in this effort are 
Suspicious Activity Reports, whereby local 
law-enforcement agencies catalog certain 
“observed behaviors” that presume to make 
suspects of us all. At a congressional hearing 
last year, Department of Homeland Security 
secretary Janet Napolitano said she hoped that by 
the end of the year the SARs, which are already 
in use in twenty-nine cities, would be 
implemented nationwide. The Los Angeles Police 
Department was the first to introduce SARs. Among 
the “suspicious activities” listed on its website 
are joggers stretching “for an inordinate amount 
of time” and people carrying on “long conversations on pay or cellular phones.”

----------
After the federal court in Albany sentenced 
Yassin Aref and Mohammed Hossain to fifteen years 
in prison, the city’s Muslim community was so 
outraged that the FBI moved Malik, the informant, 
to an undisclosed location. In January 2010 
various Muslim community listservs circulated a 
photo and video of Malik in an email titled “Vid 
& Pic of snitch,” which included a warning that 
he was not to be trusted. A few months later the 
Albany city council passed a resolution urging 
the DOJ to review its policies on “preemptive 
prosecutions” of terrorism cases, saying that 
they unfairly targeted Muslims. But by then it 
was too late. In June 2008, Malik had been 
dispatched to a mosque in nearby Newburgh, New 
York, where he befriended an ex-convict named 
James Cromitie, who had converted to Islam in 
prison. Over a period of several months, posing 
again as a wealthy Pakistani businessman, but 
this time named Maqsood, Malik treated Cromitie 
to free meals and offered him a BMW while drawing 
his attention to a plan to attack two synagogues 
in the Bronx. Malik promised Cromitie $250,000 if 
they pulled off the scheme. The government had 
again devised the plot and again provided the 
incriminating material, designing and 
constructing a fake bomb complete with inert 
explosives and hundreds of ball bearings.

In announcing the arrest of the Newburgh Four in 
May 2009, the police once again assured the 
public that the operation had been “fully 
controlled at all times.” For much of the sting, 
it was unclear whether Cromitie, who worked the 
night shift at Walmart, was serious about 
engaging in terrorism or was just desperate for 
cash. On one occasion, Cromitie was taped asking 
Malik for money to buy groceries. When Malik gave 
him a camera to photograph potential bomb 
targets, Cromitie immediately sold it to a 
neighbor for $50. The remaining defendants, whom 
Cromitie recruited a month before the bombing was 
to take place, included a schizophrenic who lived 
in a crack house, surrounded by bottles of his 
own urine. Another said Malik promised to give 
him money to help his uncle pay for a liver transplant.

At the trial in August 2010 that found all four 
men guilty of attempting to use weapons of mass 
destruction, the presiding judge, who had 
referred to the proceedings as the “un-terrorism 
case,” described the government’s behavior in 
creating the crime as “decidedly troubling.” 
Indeed, the plot was so staged that the police 
had blocked off the street where the bust would 
take place. When they pulled over the defendants’ 
car moments after they had placed the two fake 
bombs outside synagogues in the Bronx, the FBI 
found Malik right where they’d scripted him to 
be: at the wheel of the getaway car.
*****************************************************
1. When the Michigan chapter of the American 
Civil Liberties Union offered free legal counsel 
to the men being interviewed, the ACLU’s hotline 
was overwhelmed with vitriolic messages. “When 
are you going to concern yourself with 
Americans?” asked one caller to the ACLU’s 
office. “You seem to be more concerned about a 
bunch of people who would just as soon kill us as 
look at us.” Another caller, an African American, 
said she didn’t approve of racial profiling, “but 
this is different. I think the government should 
go door to door and question every one of these Arabs.”

2. The revelation of illegal surveillance 
presented another practical problem for the FBI; 
court cases that relied on domestic spying for 
evidence were thrown out, including those against 
the Weathermen, who carried out dozens of 
bombings during the late 1960s and early 1970s.




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