terror and entrapment - manufacturing the homegrown threat in the united states

8/6/2019 Terror and Entrapment - Manufacturing the Homegrown Threat in the United States

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TARGETED AND E NTRAPPED

ABOUT THE AUTHORS

Th Ctr fr Hma Right ad Gba Jtic (CHRGJ) at New York University Schoolof Law was established in 2002 to bring together the law schools teaching, research, clinical,internship, and publishing activities around issues of international human rights law. Through itslitigation, advocacy, and research work, CHRGJ plays a critical role in identifying, denouncing,

and fighting human rights abuses in several key areas of focus, including: Business and HumanRights; Economic, Social and Cultural Rights; Caste Discrimination; Human Rights and Counter-Terrorism; Extrajudicial Executions; and Transitional Justice. Philip Alston and Ryan Goodmanare the Centers Faculty Chairs; Smita Narula and Margaret Satterthwaite are Faculty Directors;Jayne Huckerby is Research Director; and Veerle Opgenhaffen is Senior Program Director.

Th Itratia Hma Right Ciic (IHRC) at New York University School of Law provideshigh quality, professional human rights lawyering services to community-based organizations,nongovernmental human rights organizations, and intergovernmental human rights experts andbodies. The Clinic partners with groups based in the United States and abroad. Workingas researchers, legal advisers, and advocacy partners, Clinic students work side-by-side withhuman rights advocates from around the world. The Clinic is directed by Professor Smita Narulaof the NYU faculty; Amna Akbar is Senior Research Scholar and Advocacy Fellow; and SusanHodges is Clinic Administrator.

All publications and statements of the CHRGJ can be found at its website: www.chrgj.org.

This Report should be cited as: Center for Human Rights and Global Justice, Targeted andEntrapped: Manufacturing the Homegrown Threat in the United States (New York: NYUSchool of Law, 2011).

NYU School of Law Center for Human Rights and Global Justice


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ACKNOWLEDGEMENTS

The International Human Rights Clinic (IHRC)/Center for Human Rights and Global Justice (CHRGJ)at New York University (NYU) School of Law is enormously grateful to the following individuals for theircontributions in the preparation of this Report. Names are listed under each heading in alphabeticalorder.

PRoJeCT DIReCToRsAmna Akbar, Senior Research Scholar & Advocacy Fellow, CHRGJ/IHRCSmita Narula, Faculty Director, CHRGJ/IHRC

AuTHoRs AnD ReseARCHeRsAmna Akbar, CHRGJ/IHRCChristine Chiu, IHRCSmita Narula, CHRGJ/IHRCTimes Wang, IHRC

RevIew AnD eDIToRIAlPetra BartosiewiczVeena Dubal, Asian Law Caucus (ALC)Aisha GhaniFaisal Hashmi, Muslim Justice Initiative (MJI)

Jayne Huckerby, Research Director, CHRGJVeerle Opgenhaffen, Senior Program Director, CHRGJJennifer Reiss, Associate, CHRGJ

ADDITIonAl ReseARCH, wRITInG, PRoDuCTIon, oR oTHeR AssIsTAnCeSusan Hodges, Clinic Administrator, IHRCKibum Kim, IHRCAudrey Watne, Program Assistant, CHRGJ

ART DIReCTIon

Joe Namy

CoveR PHoToLyric R. Cabral

PHoTosLyric R. CabralS. Nadia HussainDesis Rising Up and Moving (DRUM)


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CHRGJ thanks the following individuals for their insights and contributions to this Project: Mike German

(ACLU); Faisal Hashmi (MJI); Arun Kundnani (Open Society Institute); Veena Dubal (ALC); Steven Downs,

Kathy Manley, Lynne Jackson and Project SALAM; Lyric R. Cabral; Aisha Ghani; Petra Bartosiewicz;

Professor Jeanne Theoharis, Brooklyn College; Monami Maulik and the staff at DRUM; Professor Peter

Erlinder, William Mitchell College of Law, and the National Coalition to Protect Civil Freedoms; Jed

Eisenstein; Joe Namy; Anjali Kamat; Ayesha Hoda; Hesham el-Meligy; Emily Berman (Brennan Center

for Justice, NYU School of Law); Beena Ahmad; Vyoma Jha.

Special thanks to Alicia McWilliams, Elizabeth Williams, Lord McWilliams, Zurata Duka, Burim Duka, Ferik

Duka, Lejla Duka, Shahina Parveen, Saniya Siraj, and Lyric R. Cabral.

CHRGJ thanks the Security & Rights Collaborative, a Proteus Fund initiative, for its generous support

of this Project.


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CHRGJ

DIoG

DoJ

DoJ oIG

DRuM

eCtHR

FBI

ICCPR

ICeRD

JTTF

Ahcrft Gidi

Gza Gidi

Mkay Gidi

nYPD

Center for Human Rights and Global Justice

Domestic Investigative Operational Guidelines

Department of Justice

Department of Justice, Office of the InspectorGeneral

Desis Rising Up and Moving

European Court of Human Rights

Federal Bureau of Investigation

International Covenant on Civil and Political

Rights

International Convention on the Elimination ofAll Forms of Racial Discrimination

Joint Terrorism Task Force

Attorney Generals Guidelines on FBIUndercover Operations (2002)

Attorney Generals Guidelines Regarding theUse of FBI Confidential Human Sources (2006)

Attorney Generals Guidelines for Domestic FBIOperations (2008)

New York City Police Department

GLOSSARY


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Lyric R. Cabral. Elizabeth McWilliams, mother of David Williams, prepares macaroni saladat her home in Newburgh, NY.


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exeCuTIve suMMARY 2

I. THe ConTexT 6

A. LAw ENfoRCEmENT TRENDs6

1. Cnlatng mul t Terrrt and Terrr 6

2. Te myt Radcalzatn 7

3. Preentate Plcng 8

4. Pere Legal fraer 8

B. ThE DomEsTiC LEGAL fRAmEwoRk9

1. Te muaey Gudelne9

2. inrant Under te fBi Gudelne11

3. Te Entrapent Deene 15

Text Boxes

Te NYPD and te handcu Gudelne 12

Cnctn Rely n Prejudcal Edence 16

Entrapent n ter Jurdctn: Te U.k. and Canada 18

II. THe CAses19

A. DAviD wiLLiAms ThE NEwBURGh foUR (NEwBURGh, NY) 211. Te faly21

2. Te Cae21

3. Te ipact 23

B. ELJviR, DRiTAN AND shAiN DUkA ThE foRT Dix fivE (ChERRY hiLL, NJ)26

1. Te faly26

2. Te Cae26

3. Te ipact28

C. shAhAwAR mATiN siRAJ (BAY RiDGE, NY)33

1. Te faly33

2. Te Cae33

3. Te ipact36

D. PATTERNs 38

III. HuMAn RIGHTs I MPlICATIons AnD oBlIGATIons 39

A. RiGhT To A fAiR TRiAL39B. RiGhT To NoN-DisCRimiNATioN40

C. RiGhTs To fREEDom of RELiGioN AND ExPREssioN 43

Iv. ReCoMMenDATIons AnD ConCluDInG oBseRvATIons 45

CONTENTS


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Wake up, open your eyes, look around you, see how

this world has changed At least take 5 minutes to

look into these cases, and research, and look for

real proof.

Lejla Duka, age 13, daughter of Dritan

Duka, defendant in the Fort Dix Five case

Newburgh is an extremely impoverished town.

How much money did they spend on this whole

production? They need to be investing in our

communities for the future, not spending millions

of dollars on a fake case that makes nobody safer.

Alicia McWilliams, aunt of David Williams,

defendant in the Newburgh Four case

There are many stories that overlap. Many men

in our communities have been targeted, and the

women and children are left out in the cold.Shahina Parveen, mother of defendant

Shahawar Matin Siraj


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Executive Summary

Since September 11, 2001, the U.S.government has targeted1 Muslims in theUnited States by sending paid, untrainedinformants2 into mosques and Muslimcommunities. This practice has led to theprosecution of more than 200 individuals in

terrorism-related cases.3 The governmenthas touted these cases as successes in theso-called war against terrorism.4 However,in recent years, former Federal Bureau ofInvestigation (FBI) agents,5 local lawmakers,6the media, the public, and community-basedgroups7 have begun questioning thelegitimacy and efficacy of this practice,alleging thatin many instancesthis typeof policing, and the resulting prosecutions,constitute entrapment.8

This Report examines three high-profileterrorism prosecutions in which governmentinformants played a critical role in instigatingand constructing the plots that were thenprosecuted. In all three cases, the FBI or NewYork City Police Department (NYPD) sentpaid informants into Muslim communities orfamilies without any particularized suspicionof criminal activity. Informants pose aparticular set of problems given they work

on behalf of law enforcement but are nottrained as law enforcement.9 Moreover,they often work for a government-conferredbenefitsay, a reduction in a preexistingcriminal sentence or a change in immigrationstatusin addition to fees for providing useful

information to law enforcement, creating adangerous incentive structure.10

In the cases this Report examines, thegovernments informants held themselves outas Muslims and looked in particular to incite

other Muslims to commit acts of violence.The governments informants introducedand aggressively pushed ideas about violent jihad and, moreover, actually encouragedthe defendants to believe it was their duty totake action against the United States. In twoof the three cases, the government reliedon the defendants vulnerabilitiespovertyand youth, for examplein its inducementmethods. In all three cases, the governmentselected or encouraged the proposed

locations that the defendants would later beaccused of targeting. In all three cases, thegovernment also provided the defendantswith, or encouraged the defendants toacquire, material evidence, such as weaponryor violent videos, which would later be usedto convict them.

The government played a significant rolein instigating and devising the three plotsfeatured in this Reportplots the government

then foiled and charged the defendantswith. The defendants in these cases were allconvicted and are facing prison sentencesof 25 years to life. These prosecutionsandothers that similarly rely on the abusive use ofinformantsare central to the governments


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claim that the country faces a homegrownthreat of terrorism. Serious questions havebeen raised about the governments rolein each of these cases, as well as aroundthe set of laws that have facilitated thesepractices. They also raise fundamentalhuman rights concerns.

Part I.A. of this Report considers fourtrends that have enabled the aggressiveand widespread use of informants in Muslimcommunities: (1) the conflation of Muslimswith terrorism and terrorists; (2) the U.S.governments adoption of unsupportedtheories about radicalization andhomegrown terrorism in American Muslim11communities; (3) a shift toward a preventativemodel of policing and prosecuting terrorism,which seeks to intervene prior to any plan tocommit a particular crime; and (4) the lackof accountability and transparency of lawenforcement activities. Part I.B. assesses thedomestic legal framework governing the useof informants in undercover investigations,including the entrapment defense. Drawingon media accounts, court documents, andinterviews, Part II then examines threehigh-profile terrorism prosecutions, looking

closely at the governments practices ininstigating and constructing the plot throughinformants, and the impacts the prosecutionshave had on the families of the defendants.Part III evaluates the human rights impactsof the practices and policies detailed herein

Lyric R. Cabral. Alicia McWilliams, reads a letter from hernephew David Williams. The letter reads, Dear Aunt Alicia. Ilove you and I miss you. It warms me to know that every timeI step into that court room our eyes meet.

and the corresponding obligations of theU.S. government to respect, protect, andfulfill these human rights. Part Iv concludes

with policy recommendations.

This Report is grounded in consideration ofthe governments prosecutions against theNewburgh Four12 with a focus on defendantDavid Williams; the Fort Dix Five13 with afocus on defendants Eljvir, Dritan, and ShainDuka; and the case of Shahawar Matin Siraj.14Family members of David, Eljvir, Dritan,Shain, and Shahawar were interviewedfor this Report, which builds on the Center

for Human Rights and Global Justices(CHRGJ) longstanding work documentingthe impact of U.S. counterterrorism policieson Muslim, Arab, Middle Eastern, and SouthAsian communities.15 We also interviewedand consulted with experts, journalists, and


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community leaders studying these issues,and drew on court documents and mediaaccounts.

The experiences of the families who wereinterviewed for this Report demonstratethe profound toll government policies are

taking on Muslim communities and families.Counterterrorism law-enforcement policiesand practices are undermining U.S. humanrights obligations to guarantee the rightsto nondiscrimination; a fair trial; freedom ofreligion expression and opinion; as well asthe right to an effective remedy when rightsviolations take place.

The families have been outspoken aboutthe injustice of these tactics and the

prosecutions that they have spawned. Agrowing chorus of commentators, communitymembers, scholars, and policy experts, isbeginning to challenge the legitimacy ofthe governments practices, and the notionsthat these prosecutions substantiate ahomegrown threat or provide any security-enhancing benefits.16

The cases highlighted in this Report do notstand alone. A number of cases around the

country have been met with similar concerns,which further suggests that the practiceshighlighted here are illustrative of similarlaw enforcement activities targeting Muslimcommunities around the country.17 As thisReport argues, the U.S. government must put

an end to criminalizing Muslim communities.Not only do these practices fail to enhancepublic safety goals, but they pose intolerablethreats to basic human rights across thecountry.

To abide by these international humanrights obligations, CHRGJ urges the U.S.government to act immediately to implementthe following recommendations with respectto law enforcement and counterterrorisminvestigations, particularly those that involvethe use of extensive surveillance and paidinformants without particularized suspicionof criminal activity:

The U.S. government should rejectradicalization theories that threaten therights to freedom of religion, opinion, andexpression, and should put an end to thepreventative policing and prosecutionmethods that rely on such theories.18

Congress should hold hearings on theimpact of counterterrorism policieson Muslim, Arab, South Asian, andMiddle Eastern communities in theUnited States. These hearings shouldinclude consideration of current in-telligence-gathering tactics and the

use of informants in counterterrorisminvestigations.

Congress should pass the End RacialProfiling Act, proposed federal legislationto ban racial profiling by law enforcement.


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The Department of Justice (DOJ) shouldrevise its own June 2003 FederalGuidance on Racial Profiling to eliminatethe border and national security loophole,to include a ban on profiling based onreligion and ethnic origin, and to ensurethat the guidance is enforceable.

The DOJ should open an investigationinto all terrorism-related cases involving

the use of an informant since September11, 2001, with a view towards examiningoversight and actions of informants,the circumstances under which theyare deployed, the types of informationthey gather, and their role in instigatingterrorist plots.

Attorney General Holder should issuenew guidelines to replace the MukaseyGuidelines for Domestic FBI Operations

(2008), the 2006 Gonzales Guidelineson Confidential Human Sources, andthe 2002 Ashcroft Guidelines on FBIUndercover Operations. These newguidelines should eliminate authorizationfor the pre-investigation assessment

stage. Further, the new guidelinesshould ensure that:

The FBI and other law enforcementagencies do not open investigations,including by using informants, againstindividuals absent particularizedsuspicion of wrongdoing.

The FBI and other law enforcementagencies are not allowed to targetindividuals and communities throughsurveillance, informants, or otherinformation-gathering techniquesbased on race, religion, or nationalorigin, or political and religiousstatements or beliefs.

The FBI is explicitly and consistentlyprohibited from using informants toengage in entrapment or inducementto commit crimes.

The NYPD should revise its guidelinesto only allow for investigations whenthere is an articulable and reasonablesuspicion of criminal activity.

Lyric R. Cabral. Zurata Duka holds a photo of her son Dritan Duka.


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The practices and policies that are the focusof this Report are, at their core, about thetargeting of Muslims as potential threatsto the United States. This section talks firstabout law enforcement and cultural trendsfacilitating the prosecutions featured in

this Report; and secondly about the legalframeworks governing the FBI and NYPDin their law enforcement practices, includingthe use of informants and the low thresholdsrequired to commence investigations.

A. la efrcmt Trd

The U.S. governments focus on Muslims incounterterrorism operations appears to stemfrom a series of assumptions about Muslims

and terrorism, including the following: thatMuslims are more likely to become terrorists;that American Muslims are increasingly beingradicalized and compelled into committingviolence in the name of Islam; and thatcounterterrorism policies should focus onidentifying individuals who hold certainideologies and exhibit certain behaviorsas indicative of radicalization in order tostop them before they can act.19 Theseassumptions, however, find no support in

empirical research. To the contrary, researchconducted by a variety of institutions suggeststhe assumptions in the radicalization theoryare wrong.20 Worse still, governmentpolicies relying on these assumptions greatlyundermine fundamental human rights.21

1. Conflating Muslims with Terrorists

and Terrorism

The first problematic contributing factor to thecurrent situation is the conflation of Muslimswith terrorists and terrorism. The popularnotion of terrorism has become inextricably

linked to Muslims and Islam, due in nosmall part to a host of government policiestargeting Muslims as potential terrorists.22There is also evidence to suggest that manylaw enforcement agencies are trained withmaterials that construct Muslims as potentialterrorists.23

Moreover, commentators have noted thatthe government tends to use criminalterrorism charges in cases involving Muslim

defendants charged with violent crimes,but not against non-Muslims charged withsimilar conduct.24 Yet, since September11, 2001, there have been more instancesof politically-motivated violence in the U.S.committed by non-Muslims than there havebeen by individuals claiming to be motivatedby Islam.25

In addition, the construction of a terroristOther has conflated notions of race,

ethnicity, religion, national origin, gender,and political views, effectively racializingIslam, Muslims, and Muslim religiouspractice as radically threatening to U.S.national security interests.26 Muslim menhave been constructed as particularly

I. The Context


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dangerous.27 Muslim and Arab are nolonger discrete signifiers of religion or racebut have been combinedby the media,popular conceptions, and the governmentsown practices and policiesinto a broadercategory of Muslim looking people.28Muslim cultural and religious practiceshave also been marked in various ways asindicators of potential terrorist criminality.29In turn, law enforcement officers target thosewho they perceive to look or act like Muslims

in terrorism investigations, surveillance, andprosecutions.30

2. The Myth of Radicalization

A second explanatory factor is the viewthat American Muslims are increasinglybeing radicalized into committing violencein the name of Islam. The 2007 NYPDreport entitled Radicalization in the West:The Homegrown Threat has been pivotal

in popularizing radicalization theories.31Though the theories underlying the reporthave been criticized as thinly sourcedand reductionist,32 they continue to enjoysupport at the highest levels of government.33These theories are premised roughly on the

notion that the path to terrorism has a fixedtrajectory and that each step of the processhas specific, identifiable markers.34 Yet noempirical, social scientific research supportsthe notion of a religious conveyer belt thatpredictably leads to terrorism. In fact, researchsuggests that there is no such process that

can be identified with any confidence.35Equally troubling, the so-called markers ofradicalization are over-determinate36 andfocused on Muslim religious practice infundamentally discriminatory ways.37

Nonetheless, the U.S. government has playeda role in nurturing the idea that radicalizationis an identifiable process. In February2011, under the leadership of Senator JoeLieberman, the Homeland Security and

Governmental Affairs Committee issued areport on the Fort Hood shooting, calling onthe National Security Council and HomelandSecurity Council to develop a comprehensivenational approach to countering homegrownradicalization to violent Islamist extremism.38In March 2011, Representative Peter Kingheld a widely criticized Congressionalhearing, premised on the assertions thatAmerican Muslims are radicalizing at anincreasing rate; that American Muslims are

not doing enough to counter this trend; andthat American Muslim communities are notcooperating with law enforcement.39 Theonly law enforcement witness called byRepresentative King rejected the premise ofthe hearing.40

Dritan and Shain Duka, with Dritans children Idris, Yasmine,and Xhebrail.


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The King hearing is only the most recentmanifestation of the governments adoptionof the radicalization theory. Elsewhere,President Barack Obama, the FBI, theDepartment of Homeland Security, and theNational Counterterrorism Center, haveall embraced the theory of radicalization.41

3. Preventative Policing

A third interrelated factor is lawenforcements shift to a preventativeapproach to counterterrorism, whereby thegovernment investigates individuals withoutany evidence of individual wrongdoing.42

The preventative model assumes thatradicalization is as an identifiable process,and suggests that it is desirable to investigateand prosecute individuals while they arestill in the early stages of radicalizing sothat they will not develop into full-fledgedterrorists.43 Rather than focusing on thepolicing of criminal activity, this approachfacilitates the criminalization of those whoact Muslim, either through their religiouspractice, attendance at a mosque, or their

expression of political opinions critical ofU.S. foreign policy.44 The use of informantsappears to be a core feature of this model ofpolicing terrorism.45

4. Permissive Legal Frameworks

A fourth factorexamined in greater detail inthe next sectionis the use of particular lawsand policies that facilitate the preventative

model of aggressive policing andprosecution, combined with a concomitantabsence of legal or regulatory safeguards.46The U.S. government has aggressively usedmaterial support statutes, conspiracy orattempt charges, or combinations thereofin terrorism prosecutions, resulting in thecriminalization of a range of behaviors thatdo not seem to be indicative of any intentto commit a violent crime.47 At the sametime, the DOJ has expanded its powers and

relaxed longstanding safeguards againstrights abuses, including, but not limited to,the relaxation of the Attorney Generalsregulations of the FBI.48 Moreover, the DOJsguidance on racial profiling49 bans profilingon the basis of race and ethnicity, but doesnot explicitly ban profiling on the basisof religion or national origin, and createsloopholes for racial profiling in nationalsecurity and border security contexts.

These four factors and trends are mutuallyreinforcing. Together, they help explain thephenomenon that will be analyzed moreclosely in this Reportnamely, the targetedand abusive use of paid informants in Muslimcommunities.


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B. The Domestic LegalFramework

Since September 11, 2001, as the FBI hassettled into a dual role of an intelligencegathering and law enforcement agency, itsauthority to collect information has expanded,and its focus, in the counterterrorism context,has shifted to a preventative model.50 As aresult, the FBI seems to increasingly rely oninformants, undercover agents, and otherforms of surveillance to gather informationand, allegedly, to prevent terrorism. Seriousquestions have been raised about the efficacyand discriminatory nature of these practices,which seem to target Muslim, Arab, SouthAsian, and Middle Eastern communities

as well as activists critical of U.S. foreignpolicy.51 In the last few years, the FBIs useof informants, cooperating witnesses, andundercover agents in political and religiousspaces has come under increased scrutinyand criticism.52

Informants pose a particular set ofproblems given they work on behalf of lawenforcement but are not trained as lawenforcement.53 Moreover, they often work

for a government-conferred benefitsay, areduction in a preexisting criminal sentenceor change in immigration statusin additionto fees for providing useful information tolaw enforcement, creating a dangerousincentive structure.54

The following section closely examinesthe issue of informants by looking at thedomestic legal framework governing the useof informants, to wit, the relevant FBI andNYPD guidelines for such activities; and theentrapment defense. As it will reveal, there

are almost no limits placed on when or howlaw enforcement agencies use informants.

1. Th Mkay Gidi

From World War II through to the 1970s, theFBI conducted a series of covert domesticoperations aimed at various groups consideredto be antagonistic to the U.S. government,including through the oft-criticizedCOINTELPRO program.55 As part of these

operations, the FBI systematically surveilledand worked to undermine the New Left,including individuals thought to be membersof the Communist Party, Black and womensliberation struggles, and other groups criticalof the U.S. government.56 The UnitedStates Senate Select Committee to StudyGovernmental Operations with Respect toIntelligence Activitiesalso known as theChurch Committeefound that the FBIrelied on secret informants . . . wiretaps,

microphone bugs, surreptitious mail opening,and break ins, [sweeping] in vast amounts ofinformation about the personal lives, viewsand associations of American citizensand conducted a sophisticated vigilanteoperation aimed squarely at preventing


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the exercise of First Amendment rights ofspeech and association, on the theory thatpreventing the growth of dangerous groupsand the propagation of dangerous ideaswould protect the national security and deterviolence.57

Against this background, in 1976, AttorneyGeneral Edward Levi promulgated thefirst Attorney General Guidelines.58 In thewords of Attorney General Levi, theseGuidelines proceed from the propositionthat Government monitoring of individualsor groups because they hold unpopular orcontroversial political views is intolerable inour society.59 For the first time, the AttorneyGeneral placed express limits on the FBIs

investigative techniques in order to protectagainst the types of abuses that markedCOINTELPRO.

As documented in a recent study by theBrennan Center for Justice at NYU Schoolof Law, over the years, particularly afterSeptember 11, 2001, Attorneys Generalhave steadily eroded the Guidelines.60Attorney General Michael Mukaseys 2008Guidelinescurrently in effectreinforced

that trend, eviscerating the Guidelinessufficiently as to bring us almost full circle toa pre-Guidelines era.

The Mukasey Guidelines are profoundlytroubling in that they allow the FBI to

authorize informants and other surveillancetechniques without any factual predicateor nexus to suspected criminal conduct.61Under these Guidelines, for instance, it ispermissible for the FBI to broadly instructinformants to gather names, emails, and

phone numbers of particularly devoutmosque attendees, without any particularnexus to suspected criminal activity.62

More specifically, (1) the Guidelines authorizethe FBI to undertake assessments63 priorto preliminary investigations, in situationswhere there is no information or . . .allegation indicating wrongdoing or a threatto national security; (2) in this assessmentstage, the Guidelines permit the FBI to

use intrusive investigative techniques suchas recruiting and tasking informants toattend meetings or events surreptitiously;questioning people or engaging them inconversation while misrepresenting theagents true identity; and, engaging indefinite physical surveillance of homes,offices and individuals; and (3) theGuidelines eliminat[e] or reduc[e] many ofthe requirements for supervisory approvalof particular investigative techniques and

temporal limits on investigative activity.64

The Guidelines are implemented by theFBIs Domestic Investigative OperationalGuidelines (DIOGs), which are available tothe public only in highly redacted form.65


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Although heavy redactions prevent a holisticassessment of the DIOGs, it is clear that

the DIOGs allow for the FBI to engage ininvestigative activity based in partor even

primarily on the exercise of First Amendmentrights or on the race, ethnicity, national origin

or religion. of their subject.66 The DIOGsalso allow the FBI to collect information

regarding ethnic and racial behaviorsreasonably believed to be associated with

a particular criminal or terrorist element ofan ethnic community and to collect the

locations of ethnic-oriented businesses andother facilities (likely including religious

facilities such as mosques) becausemembers of certain terrorist organizations

live and operate primarily within a certainconcentrated community of the same

ethnicity.67

The Guidelines and DIOGs work togetherto authorize extensive surveillance, infor-

mation-gathering, and geo-mapping ofMuslim communities, creating a troubling law

enforcement approach of targeting entire

communities, rather than policing individuals

on the basis of particularized suspicion of

criminal activity.68

In tandem with the Guidelines and DIOGs,

the 2003 DOJ Guidance Regarding the

Use of Race by Federal Law Enforcement

Agencies69 bans profiling on the basis of

race and ethnicity, but does not explicitly banprofiling on the basis of religion or national

origin. It also creates loopholes for racial

profiling in the national security and border

security contexts.

2. Ifrmat udr th FBIGidi

While the Mukasey Guidelines and DIOGs

allow the FBI to recruit informants and

place them within communities withoutany suspicion of specific criminal activity,

they also authorize informants to engage

in activities that would otherwise be illegal,

and do not contain an unequivocal ban on

entrapment.70

FBI Domestic Investigations and Operations Guide, heavily redacted section on Undisclosed Participants


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The NYPD and the Handschu Guidelines

Since September 11, 2001, the FBI, NYPD, and other law enforcement agencieshave increasingly directed their surveillance and investigation activitiesincludingthe use of informantsat Muslim communities in an effort to identify would-beterrorists. Although the targets may be different, these aggressive tactics are

not new. In the midst of COINTELPRO, the NYPD, like the FBI, infiltrated andkept dossiers on individuals thought to be affiliated with the New Leftthoseconsidered to be radical at that time.83

In 1971, a group of activists brought a class action in federal court against theMayor of the City of New York, its Police Commissioner, and the New York CityPolice Departments Public Security Section, formerly known as the SpecialServices Division. The plaintiffs in Handschu v. Special Services Divisionalleged that their constitutional rights had been violated by the Special ServicesDivisions surveillance and other investigatory activities against them and theirorganizations.84 In 1985, the court approved a settlement prohibiting the NYPD

from investigating political and religious organizations and groups unless therewas specific information that the group was linked to a crime that had beencommitted or was about to be committed.85 The settlement also established asystem of record-keeping and procedures for approval of investigations by athree-member body, called the Handschu Authority.86 The system set up a papertrail enabling individuals to access information about whether they were underinvestigation, what information had been gathered, and how it was gathered.87The terms of the settlement came to be known as the Handschu Guidelines.

In September 2002, New York City Police Commissioner Ray Kelly moved to modifythe 1985 Handschu consent decree on the grounds that the guidelines did not

reflect our more dangerous, constantly changing world, one with challenges andthreats that were never envisioned when the Handschu guidelines were written.88In February 2003, the court determined that the NYPD should be permitted tomodify the 1985 decree in a way that was consistent with the FBI Guidelines.89 In

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August 2003, the court approved the modified guidelines submitted by the NYPD,

opening the door to the same kind of abuses the original Handschu Guidelines

were designed to safeguard against.90 The revised guidelines provide substantially

fewer protections than the original Handschu Guidelines, and lower the substantive

threshold required for investigation.91 In fact, the revised guidelines explicitly statein the preamble, In the view of federal, state and local law enforcement agencies,

the prevention of future attacks requires the development of intelligence and the

investigation of potential terrorist activity before an unlawful act occurs.92 The

revised guidelines allow the NYPD to initiate investigations based on speech

or expression protected by the First Amendment.93 There are no restrictions

placed on the use of informants except that their deployment must be authorized

by the Deputy Commissioner of the Intelligence Division.94 In fact, the revised

guidelines give enormous discretion to the Deputy Commissioner. The Deputy

Commissioner now has the authority to internally approve investigations and

investigatory techniques, rather than having to subject the decision to approval

from the quasi-independent Handschu Authority.95

In addition to the relaxation of Handschu Guidelines, the NYPD has grown in

size, scope, and resources since 2001. In 2002, Commissioner Kelly created

the Counterterrorism Bureau of the NYPD,96 which, in turn, participates in the

NYPD-FBI Joint Terrorism Task Force (JTTF),97 one of many JTTFs across the

country.98 Although the NYPD collaborates with the FBI through the JTTF,

it appears to have developed its own independent machinery for operating

counterterrorism investigations within New York and around the world, largely

without federal oversight.99 The NYPD has become a leading advocate for law

enforcement based on the flawed radicalization model.100

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The Mukasey Guidelines point to theAttorney Generals Guidelines Regarding theUse of FBI Confidential Human Sourcespromulgated in 2006 by then-AttorneyGeneral Alberto Gonzalesfor additionalguidance on the use of informants.71 Both

the Mukasey and Gonzales Guidelinesexplicitly contemplate that informants will beauthorized to engage in illegal activity, withlimitations only on acts of violence and actsthat would be unlawful if performed by anactual FBI agent.72

Departing from prior sets of guidelinespromulgated by John Ashcroft and JanetReno,73 the Gonzales Guidelines do notrequire FBI agents to prohibit informants

from engaging in entrapment. Whereasprior guidelines prohibited the FBI frompermitting an informant to participate in anact that constitutes an obstruction of justice(e.g. perjury, witness tampering, witnessintimidation, entrapment, or the fabrication,alteration, or destruction of evidence),or to initiate a plan or strategy to commita federal, state, or local offense,74 theGonzales Guidelines General Provisionssection removed these prohibitions.

The Gonzalez Guidelines address entrapmentobliquely.75 While they require the FBIagent to provide a prospective informantunconditional prohibitions on violence andunlawful gathering of evidence, FBI agents

are only required to provide instructions onentrapment if applicable.76 The Guidelinesdo not, however, explain under whatconditions these instructions must be given.

In 2005, the DOJ Office of the Inspector

General (DOJ OIG) released a report77

onthe FBIs compliance with, among otherthings, the 2002 Ashcroft Guidelines on FBIUndercover Operations.78 The UndercoverOperations Guidelines include a sectionregarding entrapment. The languagereflects the contours of the entrapmentdefensewhich will be explained in thenext sectionand a concern about runningafoul of the doctrine in court. Though theUndercover Operations Guidelines counsel

that entrapment should be avoided, theyprovide a number of conditions under whichan inducement to an individual to engagein crime is authorized.79 In the 2005 DOJOIG report, the DOJ OIG declined to reviewthe FBIs compliance with the section onentrapment on the grounds that the sectionlargely addresses authorization issuesthat we analyzed through examinationof the Guidelines general authorizationprovisions.80 Thus, nowhere in this

301-page report is there any review of theissue of entrapment.

A more recent 2010 report by theDOJ OIG on the FBIs investigations ofdomestic advocacy groups raised similar


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concerns about the FBIs compliance

with its own guidelines. For example, the

DOJ OIG reviewed documents that gave

the impression that the FBI focused

on a particular group as a result of

its anti-war views. The DOJ OIG alsofound the FBI extended the duration of

investigations involving advocacy groups

or their members without sufficient basis;

as well as instances in which the FBI used

questionable techniques and improperly

collected and retained First Amendment

information in FBI files.81

The 2005 and 2010 DOJ reports raise

concerns about the FBIs compliance with

its own permissive guidelines.

Amongst those who have been critical of the

FBIs lack of compliance is Mike German, a

former FBI domestic counterterrorism agent,

currently serving as Senior Policy Counsel

at the ACLU. In an interview with CHRGJ,

German noted that the 2005 Report showed

that the FBI was out of compliance with

its guidelines to an extraordinary extent.

German also said that the Attorney General

guidelines are FBI policy. If theyre not being

followed, thats a signal that somethings

wrong. The policies were derived from cases

where the FBI overreached.82

3. Th etrapmt Df

As the previous section demonstrated, therelevant FBI guidelines provide few checkson an expansive set of available surveillancetools, including informants. However, thoseindicted after an investigation involvingthe aggressive use of an informant haverecourse to the judicially created entrapmentdefense. To mount a successful entrapmentdefense, the defendant must show by apreponderance of the evidence that thegovernment induced him or her to committhe crime charged.101 If the defendant issuccessful in proving inducement, thegovernment must prove beyond a reasonabledoubt that the defendant was predisposed

to commit the crime charged. Althoughthe standards for establishing inducementand predisposition vary across the federalcircuits and between states,102 the principalelement in the defense of entrapment [is]the defendants predisposition to committhe crime.103 Focused on predisposition,the subjective test prevails as the generalstandard in federal courts. The alternativeobjective test focuses on the conductof the government actors, rather than the

mental state of the defendant.104

Though it has yet to succeed, the entrapmentdefense has been raised in a number offederal criminal terrorism cases relyingon a paid, undercover informant.105 The


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The types of evidence relied upon by the government in terrorism-related prosecutions are

highly prejudicial, and build on the conflation of Muslim religious practice, political opinions

critical of U.S. foreign policy, and terrorism. The prejudicial nature of relying on such evidence

is magnified in the context of an entrapment defense, when the defendants predisposition

to commit the charged crimes is at issue. The evidence shown in court used to establish

predisposition to commit the charged crimeviolent videos, unpopular political and religiousspeech, and, in some cases, weaponry109is in fundamental tension with rights to a fair trial,

nondiscrimination, and freedom of religion, expression, and opinion.110 The evidence tends to

correlate what should be protected speech and expression with predisposition for criminality.111

Moreover, from videos to weaponry the material is often either provided by or obtained at the

encouragement of the informant.112 In the case of unpopular political and religious speech, the

speech is often reflective ofor encouraged bythe informants own speech and attempts to

incite the defendants over several months. Thus, whether the defendants would have committed

the charged crimes on their own is highly questionable.113 But given the sensational evidence,

government rhetoric about the threat of homegrown terrorism, and rising Islamophobia, it is not

surprising that juries have opted to conclude that the defendants in question were predisposedto committing terrorism-related crimes.

The seeming conflation of unpopular political and religious views with the notion of predisposition

to criminal activity114 raises particular human rights concerns in regards to U.S. obligations

to protect rights to a fair trial, nondiscrimination, and freedom of religion, expression, and

opinion.115 In investigating or trying Muslim defendants, law enforcement agents and the courts

have equated the expression of religious ideasor even the possession of particular print and

video materialsas evidence of a desire to commit terrorism.116 There is no empirical research

that establishes a causal link between any political or religious viewpoint with a propensity

to commit violent acts.117

However, much of the evidence presented at trials to convict theindividuals highlighted in this Report (as well as other defendants in terrorism prosecutions)

is based on the problematic assumption that religious and political views or speech constitute

proof of intent or predisposition.

Convictions Rely on Prejudicial108 Evidence

16


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defendants are usually able to demonstrategovernment inducement by a preponderanceof the evidence, shifting the burden to thegovernment to prove beyond a reasonabledoubt that the individual defendant waspredisposed to commit the crime prior tomeeting the informant.106 But the entrapment

defense has consistently failed, because juries have either found that there was noinducement or that the government hadproved predisposition beyond a reasonabledoubt.107

To the extent that the policing andprosecutorial policies relied upon in thesecases go unquestioned, these caseswill further legitimate the practice ofinvestigating individuals based solely on

their religious and political views. As formerFBI Agent Mike German notes,

If the government targets somebodybased on political advocacy, and canlure a few people into committing badacts, then a successful prosecution inthose cases justifies future targeting ofpeople who are in the same position. . . .Whether these cases could survive anentrapment defense is not the relevant

question. Its whether its appropriatefor the government to act in a way wheretheyre aggrandizing the nature of thethreat. Its just difficult to understandwhat the legitimate government interestis in these cases.118

Dritan Duka with his wife, Jennifer Marino, and their childrenLejla, Xhebrail, Yasmine, Idris, and Annesa, at the FederalDetention Center in Philadelphia, during Dritans first visit withhis children in prison.


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Peer jurisdictions, including the U.K. and Canada, have dealt with entrapment cases by adopting

an objective test, based on a view that the violation is best understood as government abuse

of process, and that the courts should not permit prosecutions predicated on that abuse.

In both jurisdictions, the analysis focuses on the propriety of police conduct in light of the

circumstances.119

Common factors in both jurisdictions in assessing government conduct include the nature and

extent of police inducement, the particular vulnerability of the defendant, the extent of police

intrusiveness, and the nature of the offense.120

In the U.K., the overriding consideration is whether the conduct of the police was so seriously

improper as to bring the administration of justice into disrepute.121

In Canada, additional factors include whether the police exploited the compassion, sympathy,

or friendship of the target, and whether the police conduct is aimed at undermining otherconstitutional values.122

Notably, both jurisdictions have rejected focusing on predisposition, and have counseled instead

for a focus on the propriety of government conduct.123 If applied to the cases considered in

this Report, such standards would likely lead to different results on the question of entrapment.

Entrapment in other Jurisdictions: The U.K. and Canada

Between the FBI Guidelines and the

entrapment defense, there are effectively no

legal protections placed on the governmentsuse of informants.124 Substantive defenses

like entrapment or outrageous government

conduct exist, but in particular in the terrorism

context, the virtual equation of political and

religious viewpoints with predisposition

renders the entrapment defense

ineffectual.125 Civil rights lawsuits are also

theoretically possible, but seem unlikely tosucceed.126 As the three case studies that

follow will illustrate, this lack of protection

essentially leaves the individualsand their

familiescaught up in these FBI-incited

plots with little recourse to justice.

18


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II. The Cases

This section describes three New York-areacases involving the governments targeteduse of informants in Muslim communities.However, it is important to note that the useof these tactics in is not limited to New Yorkor New Jersey. There have been a number

of cases around the country that have raisedsimilar concerns, suggesting the practiceshighlighted in these cases are illustrative oflarger patterns of law enforcement activitiesthat target Muslim communities around thecountry.127

The accounts that follow are drawn from acombination of interviews with the defendantsfamily members, court documents, andmedia coverage. The accounts seek to move

beyond the governments one-dimensionalportrayals of the defendants in these casesas terrorists, providing a fuller picture of thegovernments role in constructing the plots atissue and highlighting the human toll of theseabusive government policies and practices.The specter of terrorism allegations has casta shadow on the defendants, as well as onfamily members who have lost their sons,husbands, brothers, or fathers, and havesuffered stigmatization and harassment as a

result of these government-incited plots.


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Lyric R. Cabral. Elizabeth McWilliams, mother of David Williams holds her sons school photograph.


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A. David Williams The Newburgh Four (Newburgh, NY)

1. Th Famiy

When David Williams was 10 years old, hismother Elizabeth moved the family fromBrooklyn to Newburgh.128 Davids fatherhad gone to prison on drug charges and shewanted to get away from crime in the city.129But Newburgh was a city on the decline.As David got older, he began selling drugs,and eventually wound up serving a five-yearprison sentence.130

After his release in 2007 at the age of 24,David set about getting his life in order. Withno high school degree and a conviction onhis record, he faced significant challenges.Nonetheless, Elizabeth recalls, He was

doing good. I told him, even though youhave a felony, you can still go to college.Despite his learning disabilities, he pursuedhis education at ASA College in Brooklyn.131

To his younger brother, Lord McWilliams,David was the only father figure he had.Together with their other brother, Hassan,David steered Lord away from making thesame mistakes he had made. He alwaystried to show me the dos and donts of

life, told me to stay in school, stay off thestreets, says Lord.132 In early 2009, Lordwas planning on joining the military, withhis sights set on the elite Navy SEALs. InMarch, however, his stomach swelled to afrightening size and doctors diagnosed him

with liver cancer. Lord was immediatelyhospitalized and David was devastated.

It was the first time I saw David cry, Lordhas said. For him not to be able to protectme, I can only imagine how he felt.133

Elizabeth anticipated how David would react.I didnt want to tell him how serious it was,because I didnt want him to go back toselling drugs. I told him Lord was going tobe OK.134

Davids aunt, Alicia McWilliams, recalls thetime well. David watched his brother almostdie and be revived five times. He knew Lordneeded a liver. The whole experience took

him for a loop.135

2. Th Ca

In April 2009, David was presented withan opportunity to make the kind of moneyhe needed to help Lord and more.136 Anacquaintance by the name of JamesCromitie told him about a wealthy Pakistanibusinessman he knew as Maqsood.137 Hehad offered Cromitie $250,000, several

luxury cars, and financing for a barbershop,to help him carry out a terrorist attack in theUnited States; Hussain also encouragedCromities anti-Semitism.138 Maqsood hadasked Cromitie to find lookouts, who wouldalso be paid. But the lookouts, Maqsood


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repeatedly insisted, had to be Muslim.139 AsDavid would later tell it, Cromitie had a planto get the money before they would actuallycarry out the plot. Either way, Cromitie toldDavid nobody would get hurt.140

Maqsoods real name was Shahed Hussain.He was a paid FBI informant whoforthe previous eight monthshad beenencouraging Cromitie to agree to a plotto plant bombs at a local synagogue.141Originally sent into Newburgh to report onthe local mosque, Masjid Al-Iklas, he focusedon Cromitie after the mosque regulars grewsuspicious of his attempts toengage them in discussionsabout violent jihad.142

Hussain had priorexperience investigatingon behalf of the FBI. Hehad helped the FBI obtainconvictions in a controversial case againsta pizza-parlor owner and a local imam inAlbany.143 Hussains apparent generositywasnt limited to Cromitie. He told Elizabeththat when Lord got better, he would take thewhole family to Disney World. Lord recalls,

When my mom first told me that, I thought,thats nice of him.144

On May 13, 2009, at the FBIs direction,Hussain drove Cromitie, David, and twoothersLaguerre Payen and Onta Williams

(no relation to David)to the Bronx to conductsurveillance on various synagogues.145Next he drove them to Connecticut to lookat the Stinger missile they were to use.146Unbeknownst to David and the others, theweapons were fake and supplied by the

FBI.147

The night of May 20th, Hussain droveCromitie, Payen, and the two Williamsesto the Bronx. The FBI had placed twocars in front of the proposed targets andinstructed Hussain to have Cromitie placethe explosives in their trunks.148 Hussain

dropped David off first and then drove theremaining men to the first car.149 Beforereaching the second car, Hussain turnedoff his recording device.150 The four werearrested shortly after.151

At the time, Lord was at home in Newburgh.He had just come home from chemotherapyand was playing cards with a friend. I heard aboom at the door. I thought something mustbe wrong, because it wasnt a knock, it waslike someone kicking at the door. Then the

we gt pulled nt a pltcal gae. Te cae adrected, prduced, and crpted by te fBi, and alltey needed ere puppet.


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SWAT team stormed in, I put my hands up,and sat down. Lord and his family memberswere taken outside and watched as the FBIremoved evidence from their home. At first,I thought my brother had stored drugs in ourhouse. But then I started hearing the words

terrorism, mass destruction, and I was very

confused.152

At first, Alicias anger was directed at hernephew. I thought, what the f*** did youdo? But the more she learned about thecase, the more her anger shifted toward thegovernment.

We got pulled into a political game. Thecase was directed, produced, and scripted bythe FBI, and all they needed were puppets.At the initial jury selection in White Plains,she recalls, They had snipers on the roof.

That was just for show.

Alicia also recalls that when David was lockedup in White Plains, people kept slipping notesunder his door calling him a terrorist.153 Hewas judged, tried, and convicted while inside.

The guards were told to go hard on him. Inthese cases, youre guilty until proven guilty.

In October 2010, after eight days ofdeliberation, the jury returned a guiltyverdict.154 On May 3, 2011, the judge

denied the defendants motions for dismissalon the bases of outrageous governmentconduct and entrapment.155 Sentencingis scheduled for June 2011. The chargescarry a minimum sentence of 25 years, andthe men could face life in prison.156

3. Th Impact

The damage to the family has been profound.Since Davids arrest, Elizabeth has struggled.

The friends I thought I had, I didnt have, shesays. She was evicted from the apartmentwhere the original raid was conducted. Andshes had a hard time finding work or aregular place to stay.157

Lord, now 22, feels responsible. In his mind,David was put in this position because I gotsick. Since the arrest, he has been harassedfor being Muslim and for being the brother ofan accused terrorist. Being called a terrorist

hurts more than if people say other things.Sometimes, I want to throw in the towel. Ithink, if life is this hard, maybe death is easier.For a while, he even stopped taking hiscancer medication. My brother said, yourenot taking your medication, if you die, who is

Beng called a terrrt urt re tan peple ay ter tng. sete,i ant t tr n te tel.


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going to take care of mom? Now, I see that

was selfish. Im taking my medication now.Im trying to hold my mother together.158

For her part, Alicia McWilliams has gone

from feeling abandoned by her community,

to becoming a leading organizer around the

issues raised by her nephews case. Alicia

particularly laments the resources wasted

on the case. Newburgh is an extremely

impoverished town. How much money did

they spend on this whole production? They

need to be investing in our communities forthe future, not spending millions of dollars

on a fake case that makes nobody safer.159

We have to ask ourselves, who is going to

protect us from this government overreach?

she adds. When asked if she feels daunted

or scared, she says, No. Im going to keepfighting for David until the end of time.160

Alicia quickly realized that Davids case wasjust one of dozens of cases where informants

were inserted into Muslim communities tolure young Muslim men into participating in

concocted plots.161 She became close withseveral other families and urged them to

speak out. Theyre going to have to learn todeal with the fear thats going to come with

speaking out on behalf of their loved ones.Despite these difficulties, Alicia notes that

organizing around Davids case has also beena fulfilling and positive process. Im learning

about new cultures and religions. But sheinsisted the issue is not exclusively a Muslim

one. This affects all of us, as Americans.

As Lord puts it, At first, I asked myself, whymy family? But then I learned that its bigger

than us.

Neburg an etreelypered tn. h uc

ney dd tey pend n t leprductn? Tey need t be netngn ur cunte r te uture, ntpendng lln dllar n a aecae tat ae nbdy aer.

Alicia McWilliams, aunt of David Williams, in her living room.


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It was a family full of love, respect, trust, harmony, and dignity. The tables outside, in the backyard,

used to be filled with people. People would come over from Staten Island, Brooklyn, and have

barbeques. I still have the tables outside, 24 chairs but now its gone with the wind. My sons are

political prisoners, not terrorists.

Frik Dka, ag 64 (fathr f ejir, Drita ad shai Dka)

Ferik Duka, father of the Duka brothers, with his grandchildren Idris, Yasmine, Lejla, and Xhebrail.


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B. Eljvir, Dritan and Shain Duka The Fort Dix Five

(Cherry Hill, NJ)

1. Th Famiy

Family was everything to brothers Eljvir,Dritan, and Shain Duka. They workedseven days a week for their fathers roofingbusiness and urged their father, Ferik Duka,to retire. Ferik remembers, They stoppedme from working. They told me, You arentgoing to work anymore; youve workedenough. You came to this country withnothing, you worked for us. No more workfor you and Mommy.162

When the brothers werent working tosupport the family, they spent their free timewith Dritans five children. We were alwaysgoing to the park, picnics, we went to SixFlags every year, and every Friday wed all

go to the mosque. We had a really fun timetogether as a family. Our family was tight,reminisces Dritans eldest daughter, LejlaDuka.163 Except for one year when Dritanmoved his family to a nearby apartment, allthree brothers and their families lived in thesame house with their parents and youngerbrother Burim in Cherry Hill, New Jersey.

The Dukas are ethnic Albanians whoemigrated to the United States when Eljvir,Dritan, and Shain were six, four, and oneand a half years old, respectively. Zurataand Ferik Duka came to America to escapediscrimination in the former Yugoslavia and

make a better life for their sons. They hadno idea that two decades later their sonswould themselves end up the victims ofdiscriminationat the hands of the countrythey had believed inwith all three sentto prison for the rest of their lives164 onterrorism charges for a plot that was, in fact,created by the FBI.165

2. Th Ca

The chain of events that turned the Dukasworld upside down began in January 2006when Eljvir, Dritan, and Shain asked theirfather if they could take a vacation for thefirst time in years.

The four brothers spent their week off inthe Pocono Mountains with eight friends.To remember the trip, they made a DVD ofthe vacation from video footage they hadrecorded over the course of the week. Their

youngest brother, Burim Duka, who was onthe trip, explains, there were 11 of us [guys],and we wanted to make copies for everyone,so we went to Circuit City. The clerk watchingthe video heard us saying Allahu Akbar [Godis Great], and turned it into the police station.

we ere alay gng t te par,

pcnc, e ent t s flag eeryyear, and eery frday ed all g tte que. we ad a really un tetgeter a a aly. our aly atgt.


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They turned it over to the FBI. And then theFBI started following us.166

The vacation video footage showed theDuka brothers and their friends engaging inrecreational activitiesriding horses, skiing,

playing paintball, shooting at a firing range,and pulling pranks. But after seeing the DVD,the FBI targeted the Duka brothers and twoof their friends, Mohammed Shnewer167 andSerdar Tatar, as the subjects of a costly andintensive investigation that would last morethan a year.168

The government sent paid informants,Mahmoud Omar and Besnik Bakalli, to CherryHill. The Duka brothers became especially

close to Bakalli, an Albanian national.169

The brothers brought Bakalli to their housewhere Zurata cooked him Albanian meals.We respected him. We loved him as a son,explains Ferik.170 The brothers thoughtBakalli was their friend when, in fact, he wasbeing paid by the government and givenlegal status to spy on the Duka family.171

Over the course of more than a year, Omarand Bakalli secretly recorded hundreds

of hours of conversations172

with theDuka brothers, Shnewer, and Tatar. Bothinformants bombarded the men with talk ofviolence, trying to goad them into action byquestioning their manhood and encouragingthem to download videos depicting individuals

committing violent acts in the name of Islam.

In August 2006, the informant Omar droveMohammed Shnewer to Fort Dix andother sites, which the government latercharacterized as reconnaissance.173 A few

months later, Omar approached the brotherswith a list of weapons, offering to help themprocure more guns. Burim explains, Mybrothers wanted the guns because theywere going to the Poconos again with theirfriends and didnt want to wait in line fortarget shooting with such a big group.174

The brothers never made it to their nextvacation. On May 7, 2007, Dritan and Shainwere arrested when they went to pick up the

guns. Eljvir was arrested at Dritans apartmentin front of Burim and Dritans entire family.

The trial took place in Camden, New Jersey.Eight weeks. We never missed a day.9/9:30 to 4:30pm in the courtroom, saysFerik of his and Zuratas attendance duringthe trial.175

The three Duka brothers, MohammedShnewer, and Serdar Tatar were charged with

conspiracy to attack Fort Dix and weaponspossession.176 In a conspiracy case, any actof any member is attributed to the group as awhole and the informants intentionally triedto create enough ties between the brothers,Shnewer, and Tatar to make this argument.177


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Though there were grounds for theentrapment defense,178 the Duka brothersattorneys focused instead on the brotherslack of awareness of any plot whatsoever.They argued that the brothers had noknowledge of the alleged agreement tocommit a crime and as a result there wasinsufficient evidence to prove conspiracy.179The informant Omar even testified on thestand that the Duka brothers had no idea

about the plan, nor any knowledge of the tripthat he and Shnewer had taken to Fort Dix.180The Duka brothers can also be heard on thetapes rejecting the informants attempts toprovoke them into expressing support forviolent jihad. For example, Eljvirs lawyernoted in his opening statement that Eljvircan be heard on tape saying that stagingan attack is haram (forbidden) and thatsoldiers on U.S. soil have not done anythingto warrant such measures.181

Nevertheless, the jury convicted the Dukabrothers and their co-defendants. By virtueof an extraordinary government request, the jury that heard the case was anonymous,meaning that none of the parties, their

counsel, the public, orthe media was awareof the identities ofthe jury membersat trial. The use ofanonymous juries

has been criticizedfor biasing the jury itself to perceive of thedefendants as so dangerous as to requireanonymity.182 After the trial, juror numberthree publicly stated that the jury was surethey were going to do itthat the menwould eventually have carried out an attackon the Fort Dix army base.183 The Dukafamily questions the impartiality of the jury, particularly juror number three, whosesona marinehad been wounded in Iraq.

She publicly admitted that watching someof the videos shown at trialvideos theinformants downloaded or encouraged themen to downloadhad reminded her of theattack on her son.184

3. Th Impact

Ferik and Zurata Duka came to thiscountry as hopeful immigrants, learned thelanguage, started a successful business,

were well-respected in the community, and,most importantly, had created a close-knitand loving family.

All of this changed when the governmentdecided to target their sons. Eljvir, Dritan,

Lyric R. Cabral. Zurata Duka, mother of the Duka brothers, in her home praying.


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and Shain have now been in prison for almostfour years and will remain there for the rest oftheir lives unless their appeal is successful.185Zurata struggles to articulate the devastatingeffects that the case has had on their lives:I cant explain it. We are not the people that

we used to be, happy. We are not the samepeoplewere not here anymore.186

The same night that the FBI arrested hissons, Ferik Duka was arrested and held inimmigration detention for a month.187

Amidst everything else, Dritans family wassummarily evicted from the apartment theyhad rented. Zurata recalls,

They [the landlord] said get out of the

apartment these are terrorists. Theygave us three days time to get ourclothes. We had to get clothes from theapartment and bring them to our house,which was surrounded by news people.I had the truck, but nobody to drive,nobody to help.188

After the eviction, Dritans five childrenmoved in with their grandparents and uncleBurim, where theyve lived ever since.

Without his brothers to run the roofingbusiness, Burim dropped out of high schoolto support his remaining family members.Noting that his nieces and nephews arelike orphans now, Burim said, its me who

supports them now I basically support fourfamilies.189 Shouldering a heavy burden fora 20-year old, Burim now runs one of theDukas roofing companies; Ferik came out ofretirement to run the other.

At the time of the arrests, the Dukas roofingcompanies had over $400,000 in contracts.

These dried up almost immediately after thebrothers were arrested. People who hadworked with Ferik for more than a decadetook their business elsewhere. Their biggestcustomer, the local fire department, called tosay they had been warned by the governmentnot to do business with the Dukas. Internetsites labeled their businesses as being runby terrorists,190 and they received harassingphone calls at their businesses. While they

once dreamt of building four neighboringhouses, one for each brother, today they arebarely able to make ends meet.

The neighborhood that the Dukas havecalled home for more than a decade has

obaa, te Jutce Departent teyae t ear. Tey are nt dng tergt tng; tey ae t tp pntngte nger at nncent mul peple.

Zurata Dua, ter te Dua brter


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become inhospitable to them. Though somehave stuck by the family, many neighbors

have stopped talking to them. When thebrothers were first arrested, strangers woulddrive by the house yelling terrorist. TheMuslim community in Cherry Hill has alsodistanced itself from the family. They said

we are scared, explains Ferik.191

Ferik and Burim are convinced that they areoften followed while driving. The whole familysuspects that they remain under 24-hour

government surveillance. Zurata expressedfear of retaliation against herself, or evenagainst 13-year-old Lejla, for speaking outabout the case. Disappearances are notunheard of in this country, she said, herformer confidence in freedom and justice in

America shattered.192

The family does not fly, unwilling to facehours of questioning at the airport, if not

worse. Zurata and Feriks worst nightmareis that Burim might become the next victimof a government set-up. The governmentalready took three of my sons whats tostop them from taking Burim too? asksZurata.193

Instead, when they have to travel, the Dukasdrive. They drove two days straight in July2010 to Colorado to visit Eljvir, Dritan, and

Shain, where they are housed in the nationsonly supermax prison. It was the first timethey had seen them in months and they had

to interact with them from behind a glass

wall. It was the first time that Eljvir met his

daughter Fatima, who was born after his

arrest.

While the rest of his family was in Colorado,

Burim remained at home. He was denied

permission to visit his brothers without anyfurther explanation. Everyone called us

four peas in a pod, we were that close. I

went with my brothers everywhere. And now

I havent seen my brothers in four years,

recalls Burim.194

In the four years since the arrests, the

members of the Duka family have worked

hard to raise awareness about the case and

what they see as the systemic injustice of

counterterrorism operations in the UnitedStates today. If we dont speak up, who

else is going to? The more people we get

[to listen], the more the FBI will realize they

have to stop what theyre doing. We have

to start a trial against the FBI, to hold them

accountable for whats going on, explains

Burim, who runs the FreeFortDixFive.com

website on his brothers behalf.195

Lejla, who began speaking publicly aboutthe case when she was only 11 years old,

adds its not just my fathers case, there are

thousands of cases just like this, and we

need to step forward, so we can actually be

a free country.196


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We saw around 50 federal agents. They were all dressed

in black. They were in the dumpsters even. I came out of

the car to see what was going on. They pointed guns at us.

They put Dritan in handcuffs. They had me in handcuffs.

They had dogs trained on us, foaming at their mouths,

which was scary because we couldnt protect ourselves.

The nieces and nephews were just in the truck crying. I

was 15. I thought I was in a dream when that was going

on, during the arrest.

Brim Dka, ag 20 (brthr f ejir, Drita ad shai

Dka), dcribig Drita arrt


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S. Nadia Hussain. Shahina Parveen, mother of Shahawar Matin Siraj, attending the 2011 South Asian Summitin Washington, D.C., hosted by South Asian Americans Leading Together (SAALT).


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C. Shahawar Siraj Matin (Bay Ridge, NY)

1. Th Famiy

When Shahawar Matin Siraj was 16 yearsold, his mother, Shahina Parveen, moved hisfamily from Pakistan to the United States.They applied for asylum for fear of facingpersecution as Ismaili Muslims, a religiousminority in Pakistan. Like many immigrantsbefore them, they settled in Jackson Heights,Queens, and have lived there ever since.197

With his father, Siraj Abdul Rehman, unableto work due to health problems, Shahawarbegan supporting the family financiallyshortly after arriving in the country. With atenth-grade education, he held a variety ofjobs before becoming a clerk at his unclesbookstore, Islamic Books and Tapes, in Bay

Ridge, Brooklyn.198

Although he took on the responsibilities ofan adult, his mother and sister rememberhis childlike qualities. He was an honest,hard-working, and immature kid, his motherShahina recalls. Even while he was working,Shahina says, I always knew where my sonwas. I was always aware of his whereabouts.Shahawars sister, Saniya, now 24 years old,also recalls his innocent and trusting nature.

If you said something nice to him, he was allyours. He was a little immature. He believedin people.199

Mother and sister also note Shahawarsgenerosity. After September 11, he

volunteered to donate blood for the victims.He was sad that all these people werehurting, and he wanted to help. Saniyarecalls, Shahawar shared everything withme. He taught me how to play Pokmon andcar-racing video games.200

2. Th Ca

Starting in November 2002, an undercoverpolice officer, known only by his alias, KamilPasha, started hanging around the bookstoreand getting to know Shahawar.201 Heengaged Shahawar in discussions aboutamong other things9/11, Osama binLaden, and suicide bombings in Palestine.202Shahawar made statements during these

conversations that would later be usedagainst him at trial.

Around the same time, a 50-year old Egyp-tian-American named Osama Eldawoodywas looking to work for the NYPD. He hadoffered to help investigate ID fraud amongimmigrants but, instead, the NYPD toldhim that they wanted him to be their eyesand ears within the Muslim community.203Eldawoody agreed and was soon sent to a

mosque in Staten Island.204 He proved tobe an eager recruit: his first day on the jobhe took down the license plate numbers ofevery car in the mosques parking lot.205

Over the next several months, Eldawoody


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made 575 visits to various mosques andfiled some 350 reports.206 Eventually, hewas sent to the Islamic Society of Bay Ridge,where he developed a reputation for beingtheatrically devout and outspoken.207

According to Shahina, Eldawoodys originaltarget was the mosques imam, Sheikh RedaShata: The informant first went after theimam but when that didnt work, he startedhanging out at the mosque looking for aneasier target. When he couldnt get theimam, he came for my son. 208

In September 2003, the NYPD toldEldawoody to befriend Shahawar.209Eldawoody did and reported that he foundShahawar impressionable.210 He alsobecame close with Shahawars friend, James

Elshafay, a 19-year-old schizophrenic, whowould later testify against Shahawar at trial.

With time, Shahawar came to regardEldawoody as an elder. I am like your son,he said. Eldawoody reciprocated, calling

Shahawar his son.211 Eldawoody began

driving Shahawar home nearly every day, and

expounded on his views regarding Islamic

duties and politics. Eldawoody cursed

America, and insisted that it was lawful to

spill a non-Muslims blood.212 Eldawoody

also said that his imam had issued a fatwato kill American soldiers.213 He also said

that he didnt want to die of cirrhosis whileMuslims were still sufferingthat he wanted

to do something.214

Shahina recalls that she and her husband

were troubled by the burgeoning relationship

between Shahawar and Eldawoody. I warned

Shahawar about Eldawoody, because hewas a bad driver. For a while, he stopped

getting a ride, but then started up again. I

told him not to, but he said, Hes a sick man,

hes dying.215

In April 2004, when the abuse of detainees

by U.S. soldiers at Abu Ghraib216 first becamepublic, Eldawoody seized on the opportunity

to take things to the next level. Shahina

explains that Eldawoody started showing

Shahawar awful, awful scary photos of Abu

Ghraib and Guantanamo. If you show thesepictures even to a non-Muslim, itll make

them crazy. No one can bear these photos,

Eldawoody showed Shahawar these photos

and said, its your duty as a Muslim to dojihad in response.217

our entre aly cared, teyrecared t tal n ur ue. one ur

aunt ant called u n tree year.we dnt een t t er becauee t cared.


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After months of Eldawoodys campaign,Shahawar finally crumbled when he wasshown pictures of young Iraqi girls beingthreatened and raped; he told Eldawoodythat they had to do something.218 Eldawoodythen told him about a group called The

Brotherhood, with operatives in upstateNew York who could help them.219 Then, inMay 2004, Eldawoody told his handlers, Ibelieve its time to record.220

At some point around that same time, hisfriend James Elshafay shared a crude mapof Staten Islandmarked with the jail, policestations, and surrounding bridgeswithShahawar.221 Shahawar turned the mapover to Eldawoody, who said he would show

it to the Brotherhood.222 Despite Elshafaysmental problems, Eldawoody flattered himand queried him about how best to blow upthe Verrazano Bridge.223

In early August of that yearpossibly to

impress EldawoodyShahawar suggestedthat a bomb at the 34th Street subwaystation late at night would cause greateconomic damage without killing anyone.224Once again, Eldawoody proved eager. Hesuggested using uranium-235 and remote-

controlled detonation, and even offered toobtain the nuclear material from the Russianmafia.225 Though Shahawar grew uneasy,226Eldawoody pressed on, asking if the stationhad surveillance cameras.227 On August21st, he drove Shahawar and Elshafayto survey the station.228 They returned toEldawoodys car and drew up maps, whichwould be used against Shahawar at trial.229

Just two days later, while driving Shahawar

and Elshafay home, Eldawoody had surprisingnews for the pair: Brother Nazeem is . . .very happy. Very, very impressed.230 WhenShahawar asked, Who is Brother Nazeem?Eldawoody replied that he was a higher upin the Brotherhood and that he was, very,very, very happy with 34th. Hes very happywith 34th.231

Shahawar has said he was taken aback by howquickly things were developing. Shahawar

asked if this Brother Nazeem understoodthat there was to be no killing, and changedthe subject several times,232 but Eldawoodywas intent on getting a commitment andrepeatedly asked how Shahawar plannedto contribute.233 Shahawar refused to plant

DRUM. Shahina Parveen (second from left), mother ofShahawar Matin Siraj, in Washington D.C.


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any bombs, but tentatively agreed to serveas a lookout.234 However, he insisted that hewould first need his mothers permission.235Unsatisfied with this stipulation, Eldawoodythreatened to tell the Brotherhood and said,If you tell me you dont feel comfortable, if

you dont want to do it, let me tell him straight.. . . You dont want to do it?236 Shahawarsresponse was, No, I dont want to do it.237Eldawoody then ratcheted up the pressure:Okay. Okay. Thats what Im going to callhim to let him know, okay? Why didnt youtell me before?238 Shahawar: replied I dontknow I have to do it. I know that I am makinga plan. But, you know, I dont know that Imgoing to go and do it. And so that fast?No, impossible.239 Nonetheless Eldawoodypersisted and Shahawar finally agreed tobe a lookout.240 This seemed to appeaseEldawoody. Before getting out of the car,Shahawar apologized.241

There was no further contact between thethree.242 Elshafay would later testify thatShahawar had tried to back out of the plan.243

The following week, the police askedShahawar to come to the station about

an unresolved misdemeanor charge and,when Shahawar went to the station, he wasarrested on conspiracy charges.244

At his trial in Brooklyn, the defense arguedthat Shahawar had been entrapped.245 In its

rebuttal, which focused on predisposition,the government relied heavily on statementsShahawar had made in the presence of KamilPasha.246 A jury found Shahawar guilty andhe was sentenced to 30 years in prison.247

3. Th Impact

The day after Shahawar was sentenced,Immigrations and Customs Enforcement(ICE) agents took Shahina, Saniya, and Sirajinto custody.248 Shahina and Saniya spentthe next 11 days in a detention center inElizabeth, New Jersey.249 The conditionswere really bad, says Saniya, We didnt haveany privacy and had to take showers in frontof everyone else. They separated us for two

days. My mom was crying and crying, yellingDont go, dont take her. She didnt sleep theentire night.250

Supporters protested outside the facility andscrambled to raise money for the familys bail.When Shahina and Saniya were released,they found that the government had seizedtheir bank account and confiscated theirpassports and IDs, leaving their lives intatters. Siraj would spend the next six

months in immigration detention.

They made us beggars, Shahina says. Saniyatook time off from school, as money wasdiverted to lawyers. With both breadwinnersbehind bars, Shahina went to work at the

Teye runed y cldren uture . . .Year ae been ated. [my daugter]

n te ter a terrrt.


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very bookstore where Eldawoody had firstbefriended her son. When her husband waseventually released six months after theirsons arrest, he took over her position at thebookstore. Since then, he has worked sevendays a week, all while under house arrest.

Our entire family is scared, laments Saniya.Theyre scared to talk in our house. Oneof our aunts hasnt called us in three years.We dont even visit with her because shestoo scared. The cousins whom Shahawarused to play with no longer visit the Sirajhousehold. Formerly friendly neighbors havealso kept their distance.251

At first Shahina and Saniya were fearful andwithdrawn as well. Mother and daughterwere stigmatized by Shahawars arrest, andtraumatized by their own immigration arrestand detention. After being released fromdetention, Saniya was afraid they wouldcome back and says she began havingnightmares.

Shahina said the ramifications of her sonscase have extended to all aspects of her life.Im worried about my daughters prospectsfor marriage and employment. Theyve

ruined my childrens future, my daughterscollege. Years have been wasted. Shesnow the sister of a terrorist.

Over time, howeverand faced with thegrowing awareness that Shahawars case

is actually part of a larger patternShahinaand Saniya began to combat their sense ofisolation. Through a community organizationcalled Desis Rising Up and Moving (DRUM),both Shahina and Saniya have become vocaladvocates, both for Shahawar and against

the governments use of informants to targetMuslims and concoct fake terrorist plots. Imnot scared anymore, says Saniya, I got thatstrong feeling from DRUM, because a lot ofpeople supported us. I learned a lot, and mymom became more active. She spoke out. Ispoke out.

Shahina echoes the sense that they arepart of a larger justice movement. I went toDRUM in 2006, and since then, I realized that

we were not the only ones being targeted,but that there are many families who havebeen targeted, and many families

terror and entrapment - manufacturing the homegrown threat in the united states

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