In an Orlando courtroom this morning, a 12-person jury, after three days of deliberation, found Noor Salman, the widow of Pulse attacker Omar Mateen, not guilty on all charges. Salman had been accused of providing material support of terrorism, based on the accusation that she aided her deceased husband in the 2016 Pulse attack, as well as obstruction of justice for allegedly lying to the FBI. She will now be a free woman.
As The Intercept has been reporting, the prosecution of Salman was bizarre and dubious from the start. Salman has no history of any political or religious radicalism, and was a victim of her husband’s violent abuse, not his partner or collaborator. Worse, Justice Department prosecutors got caught lying to the court, by telling the judge — when successfully demanding that Salman be held for the last year without bail — that she had “cased” the Pulse nightclub with her husband, an assertion the FBI quickly determined was false.
DOJ prosecutors also hid the fact that Omar’s father, Seddique Mateen, had been an FBI informant since 2005. It now seems clear that the FBI did not previously arrest the younger Mateen in 2013, after they investigated him, out of deference to his father, with whom they were working directly. Salman’s lawyers suggested that the reason for prosecuting Salman was to scapegoat her for the attack.
Evidence demonstrates that he chose Pulse randomly without even knowing it catered to the gay community. As Huffington Post’s Melissa Jeltsen put it, after reporting daily from Salman’s trial, “Everything we’ve heard in court suggests Mateen picked Pulse randomly — not because of animus towards the LGBT community.”
It is hard to overstate what a rare event this acquittal is. To begin with, the DOJ’s prosecution rested almost exclusively on a confession they got Salman to sign after many hours of detained interrogation on the morning after the attack. That “confession” was not something that Salman wrote herself, but rather one that FBI agents wrote for her based on their claims about what she said during the interrogation (an interrogation that they chose not to record).
Despite all the science and data showing how often the FBI coerces false confessions — by preying on the vulnerabilities and duress of people after a crime is committed (testimony showed that Salman has a low IQ and resides at the high end of suggestibility ratings, and was threatened with the loss of her young son) — it is exceedingly rare for juries to acquit a defendant who signed such a statement.
Yet jurors obviously concluded that the statement the FBI induced her to sign was unreliable. That conclusion was certainly due, in large part, to the fact that the FBI itself concluded that key parts of the “confession” they had her sign — including the claim that she had “cased” Pulse with her husband — turned out to be demonstrably false.
But the shocking rarity of this verdict extends far beyond the limited issue of coerced false confessions. As someone who has covered the issue of post-9/11 civil liberties erosions going back to the Bush administration, I’ve come to automatically expect that any charges relating to terrorism — especially when lodged against a Muslim defendant — will result in a conviction no matter how weak and manipulative the prosecution’s case is.
Between the pro-prosecution judges who now fill the federal court system, the ease of exploiting American jurors’ anti-Muslim sentiments, and the extremely broad parameters of terrorism laws, the deck is stacked against defendants in terrorism cases — especially Muslim defendants such as Salman.
The data confirms the validity of this expectation. In a two-year project, The Intercept collected and analyzed profiles of the 850 terrorism defendants prosecuted by the U.S. Department of Justice since 9/11, and it gives the full picture. The note at the top reveals how overzealous the prosecutions have been: “The U.S. government has prosecuted 850 people for terrorism since the 9/11 attacks. Most of them never even got close to committing an act of violence.”
Despite that, defendants in such cases have stood little chance of success. Convictions have been a virtual certainty. The statistics prior to Salman’s acquittal today speak for themselves, and convey how dire the playing field has been:
Since the 9/11 attacks, most of the 850 terrorism defendants prosecuted by the U.S. Department of Justice have been charged with material support for terrorism, criminal conspiracy, immigration violations, or making false statements — vague, nonviolent offenses that give prosecutors wide latitude for scoring quick convictions or plea bargains. 552 defendants have pleaded guilty to charges, while the courts found 183 guilty at trial. Just 2 have been acquitted and 3 have seen their charges dropped or dismissed, giving the Justice Department a near-perfect record of conviction in terrorism cases.
More amazingly still, the only two terrorism-related acquittals prior to today happened in 2006, when two defendants accused of being Al Qaeda operatives were found not guilty in the same case on charges of sedition and importing weapons. It took 12 years to finally get another acquittal.
While Salman’s acquittal should be a cause for celebration for anyone who cares about basic justice and civil liberties, justice will not be truly served in this case until punishment is doled out to the prosecutors who purposely hid key facts from the court in order to keep her imprisoned for a full year, along with meaningful reforms to prevent future FBI deceit and manipulation regarding interrogations.
One of the reasons prosecutors feel so free to lie, and one of the reasons the U.S. imprisons more of its citizens than any other country in the world, is because an ethos of impunity has been vested in prosecutors, whereby they are protected from all punishment — even when they deliberately engage in egregious misconduct that causes people to be unjustly imprisoned.
That is clearly the case here: The judge himself recognized that he was misled by prosecutors for a full year. If ordinary citizens lie to the FBI, they go to prison; if defense lawyers mislead a court with even a fraction of the culpability as these prosecutors are guilty of in this case, they are severely sanctioned, if not referred for disbarment. It is unconscionable to allow these prosecutors to go unpunished for what they did to Salman; they are the ones who obstructed justice here. And if the judge in this case has any self-respect or dignity — a big “if” for a federal judge when it comes to terrorism prosecutors — he will not allow them to have deceived him without consequences.
Beyond that, the FBI’s practice of interrogating witnesses without recording them should come to an end. Recording technology is obviously cheap and easy to use. There is no excuse for relying on the assertions of FBI agents about what witnesses say when recordings are far more reliable. “The FBI must join the rest of law enforcement and record all statements,” one of Salman’s attorneys, Charles Swift, told the press after the acquittal was announced. “It’s ridiculous if they don’t.”
Salman’s acquittal is undoubtedly due, in part, to the fact that, unlike so many Muslims terrorism defendants, she had outstanding defense lawyers representing her, led by former U.S. Navy officer Swift, who successfully represented Guantanamo Bay defendants all the way to the U.S. Supreme Court (and whose military career was killed because of it). But other terrorism defendants with highly skilled counsel have nonetheless been convicted despite a dearth of evidence, because of how tilted the playing field is against them.
Perhaps this case is just an aberration, a byproduct of a sympathetic defendant who was clearly more a victim of her abusive husband than an accomplice with him. But the more optimistic view is that 16 years after the 9/11 attack, some rationality and balance is finally emerging when it comes to the intersection of terrorism fears, security claims, and justice.
The fact that many journalists and others who closely reported on this case saw that the prosecution was so flawed, yet nonetheless fully expected a conviction, highlights the unjust dynamic that has prevailed. Along with celebrating this rare instance where justice has been served by the U.S. judicial system, one should hope that this verdict portends a return of sober reason and a commitment to due process, even when the scary specter of terrorism and Muslim defendants are waved around.