By withholding evidence of warrantless spying, the government avoided a court challenge to controversial mass surveillance — which is now before Congress.
Fazliddin Kurbanov is a barrel-chested man from Uzbekistan who came to the United States in 2009, when he was in his late 20s. A Christian who had converted from Islam, Kurbanov arrived as a refugee and spoke little English. Resettled in Boise, Idaho, he rented an apartment, worked odd jobs, and was studying to be a truck driver.
But about three years after entering the U.S., around the time he converted back to Islam, Kurbanov was placed under FBI surveillance. According to emails and internet chat logs obtained by the government, Kurbanov was disgusted by having seen Americans burn the Quran and by reports that an American soldier had tried to rape a Muslim girl. “My entire life, everything, changed,” Kurbanov wrote in a July 31, 2012 email.
After the FBI assigned one informant to live with him and another informant to attend his truck-driving school, Kurbanov was arrested in May 2013. Prosecutors accused him of providing material support to the Islamic Movement of Uzbekistan and possessing bomb-making materials.
During Kurbanov’s trial, the government notified him that his conversations with an alleged Islamic Movement of Uzbekistan associate based in Pakistan had been intercepted. The spying, federal prosecutors said, had been authorized under the Foreign Intelligence Surveillance Act of 1978, which regulates the monitoring of agents of foreign governments and terrorist organizations. Kurbanov was convicted at trial and sentenced to 25 years in prison, after which he’ll be deported to Uzbekistan. He is an apparent success story for U.S. counterterrorism officials. If there was any doubt about Kurbanov’s propensity for violence, he eliminated it by stabbing a prison warden in California, an act for which he is now facing additional charges.
But Justice Department lawyers gained their conviction against Kurbanov after failing to disclose a legally significant fact: Kurbanov’s conversations with his alleged terrorist associate had been captured through PRISM, a National Security Agency mass surveillance program whose existence was revealed in documents provided by whistleblower Edward Snowden. Under PRISM, the government obtains communications directly from at least eight large technology companies without the need for warrants, a type of practice authorized in 2008, when Congress provided new surveillance powers under FISA.
The government must disclose when information against defendants originates from warrantless surveillance — but prosecutors did not do so to Kurbanov.
While traditional FISA authority permits spying on a particular person or group through warrants issued by the secret Foreign Intelligence Surveillance Court, under the new powers, codified in FISA Section 702, monitoring is approved in bulk by the court through what is essentially a recipe for mass surveillance. Once approved, such a recipe can be used against thousands of targets. Under Section 702 authority, the NSA is currently monitoring digital communications of more than 100,000 people; it swept up an estimated 250 million internet communications each year as of a 2011 Foreign Intelligence Surveillance Court opinion. The FBI frequently searches Section 702 databases when it opens national security and domestic criminal “assessments,” precursors to full investigations.
According to a slide in an NSA presentation, provided by Snowden and published for the first time today by The Intercept, the interception of Kurbanov’s conversations was a “Reporting Highlight” for PRISM. The document indicates that the NSA captured Kurbanov’s Skype conversations from October 2012 through April 2013, roughly the same period the FBI was investigating him with undercover informants. It further details how an NSA unit in April 2013 issued a report describing “how Kurbanov believed he was under surveillance (which he is by the FBI) but was cautiously continuing his work, which was not specified — could be raising money for the IMU or explosive testing.” The alleged terrorist associate with whom Kurbanov was communicating “wanted Kurbanov to set this work in motion, probably related to sending money back to the IMU,” the document added.
The government is obligated to disclose to criminal defendants when information against them originates from Section 702 reporting, but federal prosecutors did not do so in Kurbanov’s case. In fact, when Kurbanov’s lawyers demanded disclosure of FISA-related evidence and the suppression of that evidence, Attorney General Eric Holder asserted national security privilege, claiming in a declaration that disclosure of FISA information would “harm the national security of the United States.” Kurbanov’s lawyer, Chuck Peterson, declined to comment about the government’s use of Section 702 surveillance against his client.
Kurbanov does not appear to be the only defendant kept in the dark about how warrantless surveillance was used against him. A nationwide review of federal court records by The Intercept found that of 75 terrorism defendants notified of some type of FISA spying since Section 702 became law, just 10 received notice of Section 702 surveillance. And yet Section 702 was credited with “well over 100 arrests on terrorism-related offenses” in a July 2014 report from the Privacy and Civil Liberties Oversight Board, the federal entity created to oversee intelligence authorities granted in the wake of the 9/11 attacks. Additional documents from Snowden, previously unpublished and dated before the Kurbanov case, provide further examples of how NSA intelligence repeatedly played an undisclosed role in bringing accused terrorists to trial in U.S. courts over the past decade and a half. They also reveal an instance in which the NSA incorrectly identified a U.S. citizen as a foreign target of a FISA warrant.
Civil liberties advocates have long suspected that the Justice Department is underreporting Section 702 cases in order to limit court challenges to the controversial law. Some theorize that the government conceals Section 702 use through a process known as “parallel construction,” in which evidence obtained from the warrantless surveillance authority is reobtained through traditional FISA authorization, and the government only discloses the latter authority in U.S. District Court. One defense lawyer referred to this practice in a court filing as “laundering” Section 702 evidence. Beyond the Kurbanov case, circumstantial evidence in other prosecutions suggests that this type of parallel construction could be widespread.
“The government intercepts Americans’ emails and phone calls in vast quantities. … Yet only a handful of individuals have ever received notice.”
“The government intercepts Americans’ emails and phone calls in vast quantities using this spying law and stores them in databases for years,” said Patrick Toomey, staff attorney for the American Civil Liberties Union’s National Security Project. “FBI agents around the country then go searching through that trove of data as a matter of course, including in domestic criminal investigations. Yet, over almost a decade, only a handful of individuals have ever received notice.”
The Justice Department, FBI, and NSA declined to comment for this article. The New York Times in 2013 reported that lawyers in the Justice Department’s National Security Division had believed they did not need to disclose in court whether evidence obtained through FISA specifically originated with Section 702 unless they were presenting material received directly from a Section 702 sweep. The U.S. solicitor general then successfully pushed for a change in policy, bolstered by fallout from the Snowden disclosures; this was followed by a review of past cases by the National Security Division, after which prosecutors filed supplemental Section 702 notices in a handful of cases around the country. In four such cases, the defendants had already been convicted by the time of the disclosure. And whatever changes occurred in 2013 were clearly limited, given that fewer than a dozen such notices have ever been given in court cases, and none at all has been filed in the last year and a half. Kurbanov, meanwhile, was convicted in 2015, well after the purported change in policy.
The government’s handling of its Section 702 authority is particularly important at the moment because the powers are scheduled to expire at the end of the year unless Congress reauthorizes them. Three reauthorization bills are winding through Congress. The Senate Intelligence Committee and the House Judiciary Committee have each produced one, while a third has been sponsored by U.S. senators and longtime intelligence community critics Ron Wyden, an Oregon Democrat, and Rand Paul, a Republican from Kentucky. As currently written, the Wyden-Paul bill would strengthen notification requirements and curb the Justice Department’s ability to launder Section 702 evidence through traditional FISA. The bill would require notification of Section 702 surveillance even when evidence derived from that surveillance “was subsequently reobtained through other means.” Meanwhile, the bill that emerged from the Senate Intelligence Committee appears to expand Section 702 without providing additional safeguards.
The undisclosed use of warrantless surveillance to win prosecutions is also troubling from a constitutional standpoint, foreclosing a rare opportunity to discover Section 702 abuses and challenge the law, which civil liberties advocates have argued is unconstitutional. Although FISA stipulates that targets of surveillance may challenge the order that led to spying against them, and although Section 702 is clearly used on a massive scale, courts have been strict in deciding who is a “target” of the surveillance authority, and of similar mass spying programs, and thus has standing to challenge the monitoring. For example, the Supreme Court in 2013 ruled, in a 5-4 decision, that Amnesty International and other plaintiffs could not bring a Section 702-related lawsuit because their claim that they would be targeted or harmed by such eavesdropping was too speculative. During arguments prior to the ruling, the U.S. solicitor general specifically told the justices that more suitable plaintiffs would likely emerge because people charged due to Section 702 surveillance would be notified by prosecutors and could then challenge the use of the surveillance in court.
“The failure to provide notice not only prevents defendants from challenging surveillance programs in court, but also stymies the public’s interest in understanding how and when its vast authorities are used,” said Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program. “We know that the FBI has a practice of trawling through the vast databases of information captured under Section 702 for information about Americans, but it has only acknowledged relying on such surveillance in a handful of cases and then only when its failure to provide the legally required notice generated public pressure to do so.”
In the immediate years after the 9/11 attacks, as the FBI and NSA refocused on counterterrorism as their top priority, the NSA was acutely reliant on the FBI for its relationships with the Foreign Intelligence Surveillance Court, a secret judicial body that provides oversight of surveillance authorization requests, and with U.S. internet and telecommunications companies. In large measure, in these early years the NSA needed the FBI to function effectively as a signals intelligence agency for counterterrorism purposes. For example, when the NSA required authority to target for surveillance a specific phone number or email address — even when the NSA did not know the identity of the person behind that phone number or email address — the FBI went before the Foreign Intelligence Surveillance Court to obtain authorization on the NSA’s behalf. In turn, once that authorization was granted, the NSA needed the FBI to contact the internet or telecommunications company to obtain the data.
The NSA defined a U.S. citizen’s email address as not being related to a U.S. person when the NSA and FBI should have known this was incorrect — Tarik Shah had played at Bill Clinton’s inauguration.
An August 17, 2005, edition of SIDtoday, the internal newsletter of the NSA’s Signals Intelligence Directorate, disclosed that at the time 40 percent of all NSA counterterrorism reporting was derived from FISA collection. The newsletter added: “NSA gets most of its (counterterrorism)-related FISA collection from the FBI. The FBI collects, formats, and disseminates international terrorism-related FISA intercept to NSA, CIA, and internally to FBI agents and analysts.” In 2004, the NSA began to embed employees in the FBI’s Data Intercept Technology Unit, in Quantico, Virginia, so that NSA employees could speak more directly with U.S. data providers, such as internet companies, about formatting data to NSA specifications. “This is the first time that the NSA FISA team has had direct access to the providers, which has proven to be extremely useful to NSA,” the newsletter stated.
According to internal NSA documents, FISA data obtained by the FBI is funneled into a special partition in PINWALE , the NSA’s massive database of digital communications that can be queried by email address, internet protocol address, and other parameters. From 2002 through 2008, according to internal files, the NSA kept a spreadsheet titled “FISA recap” of 7,485 FISA surveillance targets consisting of email addresses or phone numbers, with columns indicating the start and end dates of the authorized surveillance and whether the target was associated with a U.S. person, defined by law as a citizen or lawful resident.
A decade later, most of these email addresses and phone numbers can’t be traced to anyone; many belonged at the time to foreigners the government suspected were involved with terrorist organizations. Others were used by civil rights activists, lawyers, and academics in the United States who were never charged with federal crimes, such as Nihad Awad of the Council on American-Islamic Relations and Rutgers University professor Hooshang Amirahmadi. To have obtained FISA surveillance authority for those U.S. persons, the government had to have demonstrated to the Foreign Intelligence Surveillance Court that they were acting as agents of a foreign power. It’s unknown how the government demonstrates this, since individual FISA applications are secret, even when evidence derived from FISA surveillance is introduced against criminal defendants.
In the case of at least one FISA target, the NSA defined a U.S. citizen’s email address as not being related to a U.S. person when the NSA and FBI should have known this was incorrect, suggesting the government did not have to prove the target was a foreign agent. Tarik Shah, a jazz bassist who had played at Bill Clinton’s inauguration, was arrested in 2005 following an informant-led FBI sting, in which Shah pledged allegiance to Al Qaeda before an undercover agent. Shah’s FISA-authorized surveillance from October 2004 through June 2005 occurred concurrently with the FBI’s sting. Shah had a friend, Mahmud Faruq Brent, who had attended a Lashkar-e-Taiba training camp in Pakistan and complained about how “difficult it was to be back in the United States.” But the primary link between Shah and overseas terrorists was the undercover FBI agent who pretended to be from Al Qaeda. And there was no reasonable reason for ambiguity about whether the email address belonged to Tarik Shah, the U.S. citizen, as opposed to another Tarik Shah somewhere else in the world. The email address was email@example.com, the username a reference to Shah’s music profession. In a September 2006 filing, Attorney General Alberto Gonzales asserted national security privilege to prevent disclosure of Shah’s FISA application. Shah pleaded guilty to a material support charge; he is scheduled to be released from prison next year. It’s impossible to know from available NSA records whether the classification of Shah’s email address as a non-U.S. person was an anomaly or part of a broader NSA practice of targeting U.S. persons without having to provide probable cause to the FISA court that they were agents of foreign powers — a requirement intended protect U.S. citizens and legal residents from unreasonable search and seizure.
Because the FBI stood between the NSA and FISA data collection, NSA analysts encountered bottlenecks that frustrated counterterrorism and intelligence operations, internal NSA communication show. In April 2006, for example, the NSA was monitoring Ehsanul Islam Sadequee through a FISA authorization the FBI had obtained. A Bangladeshi-American who was born in the United States and grew up in the Atlanta suburbs, Sadequee came to the attention of U.S. authorities after he and a friend, Syed Haris Ahmed, traveled to Toronto to meet with several young men who were being investigated for terrorism in Canada. After that meeting in Toronto, Sadequee traveled to Bangladesh. He told U.S. counterterrorism agents prior to leaving that he was going to Bangladesh to be married. On April 5, 2006, as the FBI was closing in to arrest Sadequee, an NSA analyst urgently emailed the agency’s FBI liaison asking for the bureau’s help documenting their FISA authorization on Sadequee’s email address. “The reason we are pursing (sic) this is because we would like to retrieve a file that was passed between him and an associate about three weeks ago,” the NSA employee wrote. Sadequee was found guilty at trial of terrorism-related offenses, including material support for terrorists, and sentenced to 17 years in prison. His friend, Ahmed, was also found guilty at trial and received 13 years in prison; he was released in August.
In 2003, following a sting operation involving two informants and a meeting in Germany, Yemeni cleric Mohammed Ali Hassan al-Moayad was arrested in Frankfurt and extradited to the United States, where he was charged with raising money for Hamas and Al Qaeda. Moayad was convicted at trial in 2005. In an August 3, 2005, edition of SIDtoday, an NSA employee gave the agency credit for Moayad’s conviction. “Although this fact is unknown to the general public, and to the vast majority of the law enforcement community, NSA reporting played a key role in bringing the sheikh to trial,” the NSA employee wrote. It’s not clear what role NSA played in Moayad’s investigation. Moayad, who was not a U.S. person during the investigation, was not notified of FISA surveillance, court records show; nonetheless, his verdict was overturned after an appeals court ruled that testimony about unrelated terrorist activity had been allowed to prejudice the jury. Moayad was deported to Yemen in 2009 as part of a deal in which he pleaded guilty to conspiring to raise money for Hamas.
A week after crowing about its secret role in Moayad’s trial, the NSA boasted internally through SIDtoday that the agency played a key role in investigating Abdurahman Muhammad al-Amoudi, a U.S. citizen who was involved in financial transactions with Libya and a plot to assassinate the Saudi crown prince. According to SIDtoday, Libyan President Moammar Gadhafi organized the failed assassination plot after a perceived insult and threat by the Saudi crown prince during an Arab League summit. In 2004, Amoudi pleaded guilty to terrorism-related charges and was sentenced to 23 years in prison. “NSA’s contributions were significant,” the agency’s newsletter reported.
“Although this fact is unknown to the general public, NSA reporting played a key role in bringing the sheikh to trial.” —Top-secret passage in internal NSA newsletter
The NSA also played a previously undisclosed role in the capture of Nancy Conde Rubio, who at the time of her arrest was the fourth-ranking member of Marxist guerrilla group FARC in Colombia. Rubio had joined the FARC when she was 16 years old, and U.S. intelligence indicated that she was the girlfriend of a FARC commander suspected of holding hostage three U.S. citizens. Through digital communications intercepts, the NSA discovered that Rubio was to travel from Venezuela to Colombia without valid paperwork, according to a 2008 SIDtoday article. U.S. government officials provided that information to Colombian law enforcement, whose agents arrested Rubio and extradited her to Washington, D.C., for federal prosecution. She pleaded guilty to material support charges and was sentenced to 11 years and six months in prison.
Following the exposure of the NSA’s warrantless wiretapping programs, and the legalization of mass surveillance programs through the FISA Amendments Acts of 2008, which added Section 702 and other new provisions, the NSA continued to play a large, and largely secret, role in terrorism prosecutions in the United States.
One of the most notable examples involves Najibullah Zazi, who was arrested before he could move forward in an Al Qaeda-backed plot to bomb the New York subway. Zazi, a legal permanent resident of the United States, pleaded guilty to terrorism-related offenses in February 2010. The next month, on March 11, 2010, SIDtoday celebrated “a watershed period in the fight against terrorism and radical extremist groups,” noting that the NSA first discovered Zazi’s email connections to Al Qaeda operatives in Pakistan.
“Without that SIGINT lead on Zazi, his activities might not have come to the attention of the US intelligence and law enforcement communities until he actually conducted a terrorist attack against the US homeland,” an NSA employee wrote, referring to signals intelligence.
In July 2015, five years after Zazi pleaded guilty, prosecutors in New York notified him that he had been subjected to Section 702 surveillance. Zazi has not yet been sentenced; he is now a cooperating witness, part of a larger effort to flip well-connected terrorists into government informants. His case has become the prime example for counterterrorism officials defending the utility of Section 702 in stopping attacks in the United States.
According to a review of nationwide court records by The Intercept, the most recent Section 702 notification was delivered in April 2016, when prosecutors in Chicago informed Aws Mohammed Younis Al-Jayab, a Palestinian refugee who emigrated from Iraq. Jayab is awaiting trial on charges that he lied to federal agents about fighting with terrorist groups in Syria.
“Something is funky on one side of the ledger.”
To those who follow these notifications, the absence of any new Section 702 filings for more than 18 months — a period during which more than 50 terrorism defendants have been charged in U.S. courts and counterterrorism officials have trumpeted the critical need for Section 702 — is suspicious.
“Something is funky on one side of the ledger,” said Neema Singh Guliani, a legislative counsel at the ACLU in Washington, D.C.
If the FBI uses parallel construction to conceal intelligence community information, it would not be the only federal law enforcement agency doing so. In 2013, Reuters obtained documents from the U.S. Drug Enforcement Administration that showed how agents were trained to “recreate” investigative trails to conceal how intelligence intercepts helped to identify criminal targets. Separately, MuckRock obtained DEA documents that suggested FISA could be used by law enforcement agencies “for prosecutorial purposes in a manner that protects [intelligence community] sources and methods.”
Adding to the suspicion that FBI counterterrorism agents use parallel construction to conceal NSA cooperation is a growing number of filings in terrorism cases in which defense lawyers say circumstantial evidence suggestss some form of mass surveillance program was used against their clients.
In South Florida, the FBI nabbed two brothers, Sheheryar Alam Qazi and Raees Alam Qazi, in an informant-led sting, in which the brothers discussed and planned for a bomb plot in New York. Federal prosecutors notified the Qazis that evidence against them included surveillance authorized under traditional FISA authority. But Sheheryar Alam Qazi’s lawyer questioned whether that evidence might have been first obtained from Section 702 and then re-obtained through traditional FISA. “That argument was what was suspected but no hard evidence to support,” said Daniel L. Ecarius, an assistant federal public defender in Miami. The judge ruled that the government’s FISA notification was legally sufficient.
Across the country, in California, Adam Shafi was accused of providing material support to terrorist groups after the FBI discovered that Shafi had disappeared from his family for two days while they were in Egypt. Shafi later told his family and the FBI that he had traveled to Turkey to see the conditions of Syrian refugee camps, but in an affidavit to support a criminal charge, the FBI disclosed that intercepted communications revealed that Shafi had discussed traveling to Syria to join Nusra Front. Prosecutors in June told Shafi’s lawyer, Galia Amram, that they did not intend to file Section 702 notice in the case. Amram demanded that the judge determine whether Section 702 notice was required, as Qazi’s lawyer had. The judge in California also ruled that the government’s notification was legally sufficient.
The case of Khalid Ouazzani is even more perplexing. In May 2016 testimony before the Senate Judiciary Committee, Matthew G. Olsen, former director of the National Counterterrorism Center, specifically touted Ouazzani’s arrest as a success story for Section 702 surveillance.
“NSA conducted surveillance under Section 702 of an email address used by a suspected extremist in Yemen,” Olsen said. “This surveillance led NSA to discover a connection between the extremist and an unknown person in Kansas City, Missouri, who was then identified as Khalid Ouazzani. The follow-up investigation revealed that Ouazzani was connected to other Al Qaeda associates in the United States, who were part of an earlier plot to bomb the New York Stock Exchange.”
Ouazzani, a used car and auto parts dealer, pleaded guilty in 2010 to sending $23,500 to Al Qaeda. But court records in his case show that he was not notified of either traditional FISA or Section 702 surveillance.
Explaining why Ouazzani would not be notified of Section 702 surveillance while 10 other terrorism defendants were notified of such surveillance is impossible because the Justice Department has refused to release documents related to its notification policy. The ACLU sued the Justice Department in 2013 under the Freedom of Information Act to release documents related to the policy. The Justice Department still refused to comply, claiming none of its documents contained a “binding” interpretation of the obligation to provide Section 702 notice.
“Without knowing the government’s policy, it’s impossible to even begin to audit whether these notifications are taking place in all cases where they are legally required,” said Andrew Crocker, a staff attorney for the Electronic Frontier Foundation.
The notification concerns surrounding Section 702 do not affect only accused terrorists. While to date only terrorism defendants have received notification of Section 702 evidence, the FBI does not have a policy limiting the use of Section 702 searches to suspected terrorists. The searches are available for all domestic criminal investigations.
“The immense authorities given to security agencies for counterterrorism purposes should be of concern to every American,” said Patel of the Brennan Center. “The government is able to circumvent the Fourth Amendment’s warrant requirement to go poking around into private communications. This allows for targeting for reasons of politics and prejudice.”
The U.S. government has prosecuted more than 800 people for terrorism since the 9/11 attacks. Most of them never committed an act of violence.
The alleged terrorist said he went along with the plot because he was afraid that FBI agents, posing as ISIS members, would kill his family.
Harlem Suarez was an unlikely jihadi.
When he was born in Cuba, Suarez had blue skin. His fragile brain had been deprived of oxygen, a tragedy his family points to in explaining his lifelong social and intellectual challenges. As a child, Suarez also suffered several significant head injuries, including being struck by a brick and falling off motorcycles without a helmet on. His parents brought him to Key West, Florida, in 2004, when he was 12 years old. He struggled in the public education system and dropped out of high school. He then took odd jobs in Key West — stocking store shelves, cleaning up restaurants, working in kitchens. Even after more than a decade in the United States, he spoke English without confidence.
In 2015, seeing reports about the Islamic State on cable news, Suarez became intrigued by the terrorist group, he explained to an FBI informant. He was 23 years old at the time and still living in Key West. He was slender and fit, with tattoos covering his chest, stomach, and arms. He wore his brown hair cropped close to his scalp, and a goatee covered the bottom of his chin.
Suarez began to identify as Muslim and gave himself an Arabic name: Almlak Alaswd, which translates to “dark angel.” He said he wanted to be part of ISIS, but he knew little about the group or its rival organizations. He thought Osama bin Laden had founded ISIS, and he admitted to an FBI informant that he didn’t know what Hamas was or how the group was different from ISIS.
A U.S. military officer in the inactive reserves, Skaik was born in the Middle East and moved to the U.S. at age 16. He was fluent in Arabic, his first language, and he spoke English with a flawless American accent. When the FBI recruited Skaik in late 2014, he was a research assistant at a Florida medical school, and he had ambitions to study to be a doctor. The FBI offered what was essentially a part-time gig posing online as a man sympathetic to and interested in ISIS.
Following FBI instructions, Skaik sent Suarez a Facebook friend request. “Hey, brother, can you add me, please?” Skaik wrote. “I have something extremely important to communicate to you.”
Suarez accepted the friend request. On his profile, Suarez said he lived in Miami. Skaik was just north in West Palm Beach, so not knowing that Suarez was actually in Key West, the informant assumed he and Suarez were practically neighbors.
“It’s good to see someone around here that lives nearby me,” Skaik wrote on Facebook. “A word of advice: I’ve been down your alley and got my accounts taken down numerous times. I would be very careful not to post things onto my account relating to my location. Just an advice from a brother to another. I hope to get to know you.”
Suarez replied by sending Skaik his cellphone number, and they began to exchange text messages. Suarez explained that he wasn’t in Miami but was instead “more down,” referring to the Florida Keys to the south.
“I have a car,” Skaik texted. “We can go to the mosque and train together.”
“I was trying to make timers bomb,” Suarez told him.
The message startled Skaik, he later told a jury. He didn’t anticipate that Suarez would so readily disclose his attempts to a build a bomb. Skaik sent a message to his FBI handler, and Suarez quickly became a priority. Within days, Skaik was making the four-hour drive to Key West. He and Suarez first met in the parking lot of Japanese steakhouse chain Benihana. Suarez drove up on a black and white Yamaha moped. He was wearing black sunglasses and a black, long-sleeve, button-down shirt. “How you doing?” Suarez said, greeting Skaik. Still seated on his moped, Suarez gave the informant a hug. “You really are driving a moped,” Skaik said with surprise.
He and Skaik walked to a wooded area near the Key West airport. Once they were in a secluded spot, Suarez opened his bag and showed off his equipment. He had two body armor vests. He had a handgun. “I show you one of these, brother,” he told Skaik, who secretly videotaped the encounter. “I’ve been getting ready, boy. This shit cost a lot of money.” He then pulled out an AR-15 assault rifle.
Suarez’s small arsenal seemed to confirm the FBI’s initial concerns. But there were also early indications that Suarez might have been more of an aimless big talker than a violent jihadi. He was not familiar with Dabiq, the ISIS magazine that had become essential reading for wannabe ISIS members, and he wasn’t watching ISIS propaganda videos on the dark web but instead on CNN. When the informant asked him how he communicated with people overseas, suggesting that encrypted methods would be most appropriate, Suarez was stumped and seemed to know nothing about encryption.
“Do you use, like, WhatsApp?” the FBI informant asked.
“Well, I use Facebook,” Suarez replied. “I was trying to use, um, how you call this thing — Tweeter?”
“Twitter,” Skaik corrected.
Suarez admitted that he didn’t have a plan of attack, and he also was under the impression that ISIS members had been flowing into the United States through the U.S.-Mexico border by the hundreds with the help of drug cartels. “We ain’t alone, you know?” he told Skaik with authority. “But it’s, it’s hard to find another of us, like — I don’t know why.”
Suarez’s research skills left a lot to be desired. He told the informant there wasn’t a mosque in Key West. (There was one, about 5 miles from his apartment.) And he seemed to know little about Islam. (“I heard that you cannot, you cannot, um, eat pork, right?” he asked Skaik.)
Since the 9/11 terrorist attacks, the FBI’s top priority has been to stop attacks in the U.S. before they occur. The bureau’s primary tool has been a policy of preemption, with undercover agents and informants looking for would-be terrorists before they have the opportunity to strike. Sting operations, in which agents or informants lead targets right up to the brink of a supposed attack and then arrest them, are the hallmarks of the FBI’s preemption policy. Since September 2001, nearly 300 people have been arrested and indicted following terrorism stings in which the FBI provided the means and opportunity necessary for the terrorist plot. A 2014 Human Rights Watch report found that many of these cases resulted in prosecutions against “individuals who perhaps would never have participated in a terrorist act on their own initiative.”
Following that report, as ISIS gained territory in the Middle East and began to distribute its propaganda widely over the internet and with a greater level of sophistication than Al Qaeda had exhibited, the FBI in 2015 refocused much of its counterterrorism resources inside the U.S. on ISIS — on so-called lone wolves who, inspired by ISIS propaganda, move forward with attacks on their own. FBI officials point to Omar Mateen, who killed 49 people at an Orlando nightclub in June 2016, as an example of a successful ISIS lone wolf. To date, 66 ISIS sympathizers have been arrested following FBI stings, some for plotting attacks like Mateen’s and others for conspiring to travel to Syria to join the ranks of ISIS proper.
Suarez presented a conundrum for the FBI. He said he wanted to join ISIS, even though his understanding of the group and its religion was rudimentary. He was actively looking for likeminded people, even though he admitted he wasn’t finding any. He had body armor vests, even though he didn’t have the armored plates that slip inside. He had weapons, including an assault rifle, even though he admitted he didn’t have much ammunition.
“What would you do in a situation like that?” said Peter Ahearn, a retired FBI special agent who headed the field office in Buffalo, New York. “Would you want to be the agent who let this guy go, and then you find out later that he killed people in some attack?”
It’s a valid question. But as the FBI aggressively investigated Suarez, the government’s case turned on its head, with Suarez quickly transforming from the potential hunter into the very real hunted.
Skaik introduced the young man to two undercover agents who played the parts of hardened ISIS members. One claimed to be military-trained; the other said he was a professional bomb maker. Suarez, who realized too late that he was playing with fire in exploring his naive curiosity about ISIS, tried to back out in passive ways, the FBI’s evidence showed. He didn’t return calls and was consistently hard to reach. When the FBI agents asked for money to build a bomb, Suarez claimed to be broke, though he would later say he had $4,000 in the bank. Instead of participating in a bomb plot on the Fourth of July holiday, as he’d discussed with undercover agents, Suarez dodged their calls and instead went out drinking in Key West.
But Suarez was worried about consequences. Skaik knew where Suarez and his parents lived, and Suarez had no reason to doubt these men were from the murderous group he’d been hearing about on cable news. He didn’t know how to get out of the situation he’d created. “I was worried about my parents’ life,” Suarez later told a jury. Suarez said he had concocted a plan to protect himself and his family. If these ISIS guys wanted him to plant a bomb, he’d take that bomb to an isolated beach and detonate it. No one would die; no one would get hurt. He’d fulfill his obligation and protect his family. But it didn’t work out that way.
Over a period of about two weeks, Suarez and Skaik spoke by phone a half-dozen times after meeting in person in Key West. Their rough plan was to film a video for ISIS, post it online, and then launch some sort of bomb attack on the Fourth of July. Skaik said he had an ISIS contact who could provide the bomb.
But while Suarez never outright rebuffed Skaik’s prodding to make a video and move forward with an attack, he was much more concerned about grinding out his day-to-day existence. “I’m kind of like getting stressed out because no job, and bills, bills, they’re still coming and coming,” Suarez told Skaik. Suarez was so hard up that he’d fenced his assault rifle, which he owned legally, to a pawnshop. Suarez was apologetic, because he and Skaik had discussed how he’d hold the AR assault rifle in the ISIS video they were to make. But the hiccup didn’t concern the FBI informant.
“Well, that’s OK,” Skaik said. “Then you can, I mean, you can … hold my rifle then. It’s not a big deal.”
In FBI stings, informants often develop close relationships with their targets, either as father figures or close friends. Suarez’s conversations with Skaik suggested the Key West man was lonely, heartbroken, and had few friends. He confided in Skaik that he and his girlfriend had recently broken up after he’d suggested that they have a threesome with her female friend. “She told me that she’s not like that kinda type of (sic) girl,” Suarez told him. He later heard that his ex-girlfriend was in another relationship. “I should not care, ’cause, you know, we wasn’t together, but like, you know, I really, like, love her, you know what I’m saying?”
Skaik responded by lavishing Suarez with praise. He told Suarez that he wanted to join ISIS and always figured he’d have to travel to Syria to do it. Until he’d met Suarez, he said, he’d never imagined he could be an ISIS member here in the United States.
“When I met you, I knew there was something about you,” Skaik told Suarez by phone. “You know, like, I knew that I don’t have to go overseas; I knew you were the real deal, you know, like, I was like, ‘This guy, he’s a leader, he’s a fantastic leader.’ I think you are, man.”
Suarez was similarly effusive about their bromance. “It’s not just me; it’s me and you, you know. We are the brain, and we’re gonna be the bosses, you know; it’s me and you together, you know. You know what I’m saying, like, I cannot do this without you either, you know?”
“So are we gonna do anything in Key West? Like on the Fourth of July? Is there a lot stuff that goes on over there?” Skaik asked.
“We cannot do — we must do it, like, around here. Homestead.”
“Homestead?” Skaik asked, surprised.
“Yeah, close in the, you know, middle, middle,” Suarez answered.
“Gotcha. What’s in Homestead?”
“I don’t know,” Suarez admitted.
For the video, Suarez dressed in all black and wore a ski mask that covered everything but his eyes. He also wore one of his body armor vests (he still didn’t have the armored plates) and a black and yellow scarf around his neck. Sitting on the floor of the hotel room, a white wall behind him, Suarez read from a rough script that he and Skaik had come up with over lunch at Burger King. Skaik aimed the video camera.
“All right, let’s, let’s try to do one without the paper,” Suarez said, referring to the script.
“OK,” Skaik said.
“Let’s see how, how it goes.”
Suarez then cleared his throat and Skaik began the countdown: “Three, two, one —”
“I call to all my brothers worldwide to come to USA soil,” Suarez said, beginning his monologue. “Brought your weapons, AK, grenades, bring all your tanks. Shit, hold on. Fuck.”
“OK, you wanna redo it?” Skaik asked.
“Yeah,” Suarez said.
Skaik started the countdown again: “Three, two, one —”
“I call to all my brothers in the worldwide,” Suarez said. “Stand up for our right, our Muslims’ right. Brought your AK and shoot everyone against us. This is the time to fight for the caliphate and create the entire worldwide caliphate.” Suarez paused. “Well?” he asked.
“Good. All right, we recorded this one,” Skaik said. “That’s perfect.”
The FBI had their jihadi video. Now agents needed a bomb plot.
On June 3, 2015, Skaik traveled again to Key West, this time with his supposed ISIS associate, an FBI agent who went by the name Sharif. A decorated soldier who had received the Bronze Star and Purple Heart for his service in Iraq, Sharif had been working undercover for the FBI for about three years. His real name has not been disclosed.
Skaik and Sharif picked up Suarez, and together they went to Denny’s for lunch. Suarez seemed perplexed by Sharif. A black man with an American accent who was not only Muslim, but a member of ISIS? It didn’t make sense to him.
“But wait, wait, wait, you’re American?” Suarez asked him.
“Yeah,” Sharif answered.
“Oh, for real?”
Sharif provided his cover story: He was born in the United States, but his father taught him Arabic. He then moved overseas with his family and spent nearly two years in the Middle East before joining the U.S. Army, where he specialized in supplies and logistics.
Suarez and Sharif exchanged small talk. Suarez admitted that he didn’t speak “the Muslim language,” but that he understood what ISIS was standing for and he wanted to be part of the movement.
“I like you, brother,” Sharif told Suarez.
“Thank you,” Suarez replied.
“I told you he’s, uh, very, very smart guy, and, you know, and a great leader too,” Skaik said.
“Very smart, very smart,” Sharif followed.
Suarez insisted to Skaik and Sharif that he wanted to learn how to make bombs; he needed someone to teach him. But the FBI consistently steered him toward a plan in which they’d provide the bomb. “It’s like someone cooking, you know?” Skaik told him over lunch. “Like, I can tell you how to make that pasta, but when you make it, it tastes like shit!”
Even as they were directing Suarez, Skaik and Sharif spoke to him as if he were the leader. “Sheikh, I’m not trying to question your leadership,” Sharif said. Sharif told him that he had a contact who could build a bomb; Suarez just needed to kick in a little bit of money for the materials. “I mean realistically, how much money do you think you have to put toward this, to get them started on this?” Sharif asked him.
“Right now, I don’t have enough,” Suarez said.
“You don’t have, uh — I’m sorry, what’d you say?”
“I don’t have, like — I’m kinda short.”
Suarez explained that not only did he not have money, but he also didn’t have any of his guns. He’d pawned them for cash. Nevertheless, he seemed to be living in a wandering fantasy, constantly talking of different targets, from bombing a police cruiser to taking the bomb to a pool, despite having no clear means to launch any such attack. It appeared to frustrate the undercover FBI agent.
“Bro, brother, you, you said, like, cop car, you said open places, you said —” Sharif said, his voice terse.
“No, I know, I know, but uh —” Suarez replied, stumbling over his words.
“When I leave here, you tell me exactly what you want, what you want to do, when you want to do it, how many, how big, how little. I go talk to the brothers.”
Two days later, Skaik called Suarez. He said he saw Sharif at the mosque and his ISIS contact had agreed to make a bomb for Suarez. He also agreed to teach Suarez how to make a bomb after he’d planted the first one, Skaik explained, but he didn’t have many details. “I’m just a middleman,” Skaik said.
“What do you mean?” Suarez asked him. “You’re my partner.”
Skaik laughed uncomfortably.
“You’re my right hand,” Suarez added.
The FBI sting was moving along. But then, out of nowhere, Suarez dropped out of contact for 21 days. He didn’t return calls or respond to text messages.
On June 30, 2015, Suarez finally called Skaik. “I’ve been trying to get a hold of you, man,” Skaik told him. “Like, have you been getting my text messages at all?”
Suarez’s explanation for losing contact was convoluted. His phone’s screen had cracked. He was working a lot. But Skaik moved quickly to endear himself to the target again. “I just miss you,” the informant told Suarez. He explained that he’d stalled Sharif; everything was still fine to move forward. But if Suarez indeed wanted to move forward with the attack, he was showing little initiative. The Fourth of July holiday, when he had talked of planting a bomb, had come and gone. A week later, on July 11, 2015, Suarez called Skaik again and gave him a new phone number on which he could be reached. Sharif called him a couple of days after that and scolded him for being unresponsive.
“I went back to the brothers, and I spoke on your behalf, and then I don’t hear from you guys for over a month,” Sharif said. “Listen to me, brother, these guys that I speak to for you are serious guys.”
Suarez was in his bedroom, where a large, wooden four-poster bed was at the center. A Sony flat-screen television was on one wall, next to the door. Behind the door, visible when it was closed, hung an American flag. A toy helicopter rested on a tall dresser. Suarez’s collection of hats, their bills unbent, was on one of the walls. When Sharif called, Suarez’s mother was in the other room. He didn’t want her to hear, so he turned up the volume on the television, which also made it difficult for the undercover FBI agent to hear.
“Hey, turn the TV down some; it’s too loud,” Sharif told him.
“Hold on, hold on, hold on,” Suarez said, complying. “Go ahead.”
“These guys I spoke to for you are serious guys, all right?” Sharif explained. “If you and Mohammed, if you guys are not serious Islamic State brothers, then I don’t know why you guys are bothering me and playing games with me.”
Sharif gave Suarez an assignment. If he wanted to move forward, he needed to purchase a prepaid phone and be reachable at all times on that phone. Suarez did as he was told, but he only paid for a few minutes — barely enough time to hold conversations with Sharif and Skaik. But no matter. The FBI sent Skaik down to Key West again on July 19, 2015, and he delivered a new phone with more than enough minutes to remedy the FBI’s communication problems. In return, Suarez gave Skaik a backpack, nails, his old prepaid phone, and $100 — the items he was instructed to provide for the bomb.
“The video’s almost ready,” Skaik told Suarez. “Like, I put the music, I put the subtitles. It’s pretty fucking cool.”
Suarez would not see Skaik again for more than a year, when the informant arrived in U.S. District Court in Key West to testify against him. Skaik was paid $90,000 for his work with the FBI during this period.
Suarez received a phone call from his supposed bomb maker on July 24, 2015, but only after he’d failed to answer a number of calls from him. The bomb maker said his name was Omar, and he wasn’t happy about having to call so many times. “When I call you from this point on, I expect you to … pick up my phone call,” he said.
Unbeknownst to Suarez, Omar was an inspector with the U.S. Department of Justice. He was born in India, but he spoke perfect American English. His real name has not been revealed. Omar kept the conversation brief and maintained his authority throughout, at times barking orders at Suarez.
“I will be in Key West with your package ready to go for you in Key West on Monday between 10:30 and 11:00. I will call you when I’m —”
“But I’m, uh —” Suarez said, starting to interrupt but seeming to have no argument to make.
“Do not be late,” Omar said. “I’m gonna tell you again: do not be late. When I call you, make sure you are there on time. Do you understand?”
“Yes, yes,” Suarez replied.
Three days later, Omar drove to Key West. A hefty man who wore a blue and black patterned button-down shirt, Omar parked in the lot of an Italian restaurant next to Benihana, where Suarez had first met the FBI’s informant. Suarez hopped in the passenger seat of Omar’s car. Suarez was dressed in a gray hoodie and gray and purple hat. He had a red beach towel wrapped around his neck.
Omar handed Suarez the fake bomb. It was in the backpack Suarez had provided. The nails he’d given Skaik were attached to the side of the bomb. The cellphone he’d provided was wired to the bomb as the trigger mechanism. Omar showed him how to power on the bomb and then how to trigger it by calling the number.
“That’s it, brother,” Omar told him. “And then you just wanna turn it off right over here. Turn off that switch. There you go. Pretty simple, right? And power it all the way down. There you go. Do you have any questions?”
“No,” Suarez answered.
“How do you feel?” Omar asked.
“I’m feelin’ good.”
“Kinda exciting,” Suarez added.
As Suarez exited Omar’s car with the fake bomb wrapped inside his red beach towel, FBI agents arrested him. The U.S. Attorney’s Office in Miami charged Suarez with attempting to use a weapon of mass destruction. “There is no room for failure when it comes to investigating the potential use of a weapon of mass destruction,” FBI Special Agent in Charge George L. Piro said in a prepared statement announcing Suarez’s arrest.The odds were stacked against Suarez from the start. The Justice Department has a perfect record of conviction in ISIS cases. Prosecutors offered Suarez a plea deal that would have resulted in a maximum sentence of 20 years in prison. Both Suarez and his lawyer, Richard F. Della Fera, were open to the plea deal, fearing that he might be sentenced to life in prison if convicted at trial.
A neuropsychologist who examined Suarez after his arrest found him to be naive, with a tendency to acquiesce to others. In Della Fera’s view, Suarez’s acquiescence made him easy prey for the forceful undercover FBI agents. But it also factored into his decision to plead out. In May 2016, Suarez’s mother called him in jail. He told his mother he believed it was impossible to win the case, but she steamrolled over his instinct to plead guilty, telling him not to think that way and instead to have faith in God. “Although he is in his mid-20s, defendant’s mother treats him like a child,” Della Fera wrote in a court filing.
At his trial, Suarez attempted to explain away his interactions with the FBI by describing how he wanted to learn more about ISIS, which he discovered by watching CNN, but did not know what to do when he found himself in too deep with Sharif and Omar. “I wanted to have a conversation so that I could learn how these people are, what these people think, and how these people act,” Suarez said.
He testified that, after not returning Skaik’s calls, he felt threatened by Sharif’s demands that he get a phone and be responsive. “In a very strong manner, and to me it was a very threatening manner because in my mind they were people from the — they were people from the Islamic group,” Suarez said.
“Could you describe for us why you agreed to meet with Omar on July 27?” Della Fera asked Suarez, referring to do the day he collected the fake bomb.
“I saw that I had no other choice but to keep on doing what they were telling me to do, since I had been trying for many times to get out of that circle, giving them excuses, but they would make me go back, and I had no other choice but to go to that place.”
The jury didn’t accept Suarez’s excuses and convicted him on February 1. U.S. District Court Judge Jose E. Martinez, a former prosecutor who was appointed to the bench by President George W. Bush, gave Suarez the maximum punishment: life in prison.
Suarez’s sentence is indicative of the increasingly harsh punishment ISIS defendants caught up in FBI stings are now facing in federal courts. While federal judges rarely gave life sentences to sting targets allegedly affiliated with Al Qaeda and other groups — the Fort Dix Five being a notable exception — Suarez is one of two ISIS defendants to receive a life sentence in the last year.
In each of these ISIS cases, the other being Justin Nojan Sullivan, the FBI provided the weapons in the supposed plots. Since Suarez was arrested after taking custody of the fake bomb, there’s no way of knowing with certainty what he would have done with it.
During Suarez’s testimony, Della Fera asked him what he planned to do with the bomb the FBI provided.
“The only thing that I thought was to take it to a place where there were no people and detonate it there,” Suarez answered.
“Did you have a place in mind where you might be able to accomplish that?”
“Big Coppitt,” Suarez said, referring to an island next to Key West.
“And is that a crowded area, or is that an isolated area?” Della Fera asked.
Correction: September 3, 2017
A previous version of this article stated that a third ISIS defendant, Munir Abdulkader, had been sentenced to life in prison. He was sentenced to 20 years in prison plus life supervision.
The U.S. government has prosecuted more than 800 people for terrorism since the 9/11 attacks. Most of them never committed an act of violence.
Abdulrahman Farhane maintained that he was not involved in terrorism, but he pleaded guilty to the charges to avoid a longer prison sentence.
Once considered so dangerous by the U.S. Department of Justice that he was kept in solitary confinement for more than six months, Abdulrahman Farhane, a Moroccan-born U.S. citizen, will be released today from a Brooklyn halfway house, not far from where he once operated an Islamic bookstore.
Farhane will be the 417th defendant to be released following a conviction on terrorism-related charges after the 9/11 attacks. He pleaded guilty to his role in what the government described as a plot to send money to fighters in Afghanistan and Chechnya. Farhane was sentenced to 13 years in prison.
His case was a touchstone in the war on terror, because it involved one of the earliest investigations after 9/11 as well as two informants and two FBI agents who all would become notable figures in their own rights.
Farhane, a father of six children whose House of Knowledge on Atlantic Avenue sold religious books, bumper sticks, and various gadgets, came to the FBI’s attention in the days after 9/11 when an informant claimed the bookstore owner had “radical views of Islam.” The informant, Mohamed Alanssi, was a Yemeni man who had worked at the U.S. Embassy in Sana in the 1970s. He had a trail of debts and a history of failed businesses in Yemen and the United States, and his handler at the FBI was agent Robert Fuller (who later played a role in the extraordinary rendition of Canadian Maher Arar and oversaw the controversial FBI sting involving the so-called Newburgh Four).
Alanssi discussed with Farhane the possibility of sending money to Afghanistan and Chechnya. Alanssi made it clear in these conversations that he wanted the money sent to terrorists, and Farhane wanted to help, according to FBI recordings. (Farhane later told the FBI in an interview that “he did not want to be rude” to his customer.) Farhane then introduced Alanssi to Tarik Shah, a jazz bassist who played at Bill Clinton’s inauguration, telling the FBI informant that Shah could help him smuggle money out of the country.
The FBI informant nurtured his relationships with Farhane and Shah, but couldn’t push the case forward. After two years, the FBI introduced a second informant, an ex-convict and former Black Panther named Saeed Torres (who also went by the name Theodore Shelby). Torres, who was later featured in the documentary “(T)ERROR,” rented an apartment in a building in the Bronx owned by Shah’s mother, and recorded conversations with Shah in which the jazz bassist obsessed about martial arts and his ambitions to train Muslims in hand-to-hand combat. Torres then introduced Shah and one of his friends, a doctor named Rafiq Sabir, to an undercover FBI agent, who led them in a pledge to Al Qaeda. The agent, Ali Soufan, later spoke out publicly about CIA torture and started a security consulting company that does business with the Qatari government.
As the FBI was building its case against Farhane, Shah, Sabir, and a Washington, D.C., taxi driver named Mahmud Faruq Brent, Alanssi publicly divorced himself from the FBI. In November 2004, he sent a fax to Fuller, his FBI handler, reading: “Why you don’t care about my life and my family’s life?”
Alanssi, wearing a suit and tie, doused himself in gasoline and walked up to the northwest guardhouse of the White House. He asked the Secret Service agents to deliver a message to President George W. Bush. The guards turned him away. Alanssi then set himself on fire, burning about 30 percent of his body.
The Justice Department first indicted Shah, Sabir, and Brent, and then later added Farhane to the indictment, based on recordings in which Farhane discussed sending money overseas. Farhane and Shah were accused of conspiring to transfer money to be used to buy communications equipment for terrorists. Farhane was also charged with making false statements to the FBI to cover up his involvement, according to the government.
During his first appearance in court, Farhane told the judge: “I’m not guilty. I didn’t do anything. This is my country. I love my country.”
Farhane’s lawyer at the time, Michael Hueston, added: “He had no run-ins with the law until Mr. Alanssi came along.”
While Farhane maintained that he was not involved in terrorism, he pleaded guilty to the charges to avoid a longer prison sentence. Shah and Brent also pleaded guilty, and received sentences of 13 and 15 years, respectively. Sabir was found guilty at trial and received 25 years.
Farhane is the first of the group to be released. Shah and Brent are scheduled to be released from federal prison next summer.
The U.S. government has prosecuted more than 800 people for terrorism since the 9/11 attacks. Most of them never committed an act of violence.
Jeff Sessions has worked since at least 2015 to build a case for limiting Muslim immigration. His evidence is ambiguous at best.
While the Trump administration has struggled to provide evidence to support the need for a travel ban targeting Muslims, Attorney General Jeff Sessions has been working since at least 2015 to limit Muslim immigration.
In November 2015, in a letter co-signed by Texas Sen. Ted Cruz, then-Alabama Sen. Sessions accused the Obama administration of refusing to provide immigration information about defendants who had been charged in U.S. District Court with international terrorism-related offenses.
“It is quite telling that this administration — which seems to have unlimited resources to circumvent our immigration laws and further its executive amnesties — cannot find the time or resources to provide timely answers to these simple questions,” Sessions and Cruz wrote.
So the two senators took matters into their own hands. Using a list of 580 terrorism-related defendants provided by the Justice Department, Sessions assigned the staff of the Subcommittee on Immigration and the National Interest, which he chaired at the time, to research the country of origin and immigration status of each defendant. The committee staff found that of the 580 terrorism defendants they researched, 375 were born outside the United States. To Sessions and Cruz, this validated their view that terrorism was a largely foreign threat.
In another letter to the Obama administration in June 2016, Sessions and Cruz wrote that the information “makes clear that the United States lacks the ability to properly screen individuals prior to their arrival to the United States. It further makes clear that our nation has a serious assimilation problem.”
The Sessions data, which included country of origin and immigration data for some, but not all, of the defendants, was among the sources used by The Intercept to build a database of international terrorism prosecutions since the 9/11 attacks. (The Intercept intends to keep the database up to date and expand the fields regularly; at present, staff members are researching, among other data, the country of origin for approximately 350 international terrorism-related defendants not found by the subcommittee staff.)
A review of the Sessions data, however, suggests that neither country of origin nor immigration status is a clear indicator of heightened national security concern.
|COUNTRY OF ORIGIN||NUMBER OF PEOPLE|
|Kuwait – Citizen of Jordan||1|
|Lebanon – Canada||1|
|Pakistan – Canada||1|
|Trinidad & Tobago||1|
|United Kingdom – India||1|
While at first blush the Sessions data may seem to suggest disproportionate numbers of terrorism defendants from countries affected by the travel ban, or by immigrants who came to the United States as refugees, the data is incomplete — country of origin is not known for 132 defendants, or 23 percent — and inherently biased by prosecutorial targeting. Following the 9/11 attacks, with the FBI increasing its number of informants in Muslim communities due to a presidential mandate, Muslims became the primary focus of terrorism investigations and, by extension, prosecutions for charges related to international terrorism. Many of these prosecutions were not for serious offenses such as material support or weapons of mass destruction, but instead for nonviolent crimes such as immigration violations or lying to FBI agents.
In addition, the U.S. government segregates terrorism prosecutions into two types — domestic and international. The Sessions data includes only prosecutions related to international terrorism and leaves out all prosecutions of domestic terrorists, who are in most cases born in the United States.
Of the 580 defendants in the list, Sessions’s committee staff found the country of birth for 448 based on open-source research. Of those, U.S.-born American citizens represented the single largest group, with 73 defendants. The second largest group, consisting of 61 defendants, was from Pakistan, which is not affected by the travel ban.
The numbers fall precipitously from there. The third-largest group, consisting of 21 defendants, was from Somalia, which is included in the travel ban. The other countries included in Trump’s travel ban were Iran (four), Libya (two), Sudan (three), Syria (seven), and Yemen (20). Iraq, which was in the first version of the travel ban but not the second, had 19 terrorism defendants in Sessions’s data.
For comparison, 20 of the terrorism defendants in the Sessions data were born in Colombia, the same number of defendants who were born in Yemen. If the travel ban were indeed about restricting travel from terror-prone nations, as the Trump administration has claimed, the Sessions data would in theory provide a compelling case for adding Colombia, a Catholic-majority nation, to the ban list.
The Trump administration’s travel ban, which was established by executive order and affected seven Muslim-majority nations in its first iteration and six in its second, also temporarily blocks refugees from entering the country. Of the 448 defendants for whom Sessions’s committee staffers could find information, 24 entered the United States as refugees. According to the Sessions data, not a single refugee from Syria has been charged with terrorism-related offenses in the United States. Trump’s first travel ban blocked Syrian refugees indefinitely. The current travel ban places a temporary halt on the entry of all refugees.
Neither version of Trump’s travel ban is in effect, following multiple successful court challenges arguing that the executive orders discriminate against Muslims. The Trump administration has filed notice to appeal at least one ruling that halted the second version of the travel ban.
Alexander Ciccolo professed support for ISIS, but it’s unclear whether he would have posed a threat had the FBI not provided weapons and encouragement.
Boston Police Capt. Robert Ciccolo was one of the first responders to the Boston Marathon bombings. When his 23-year-old son, Alexander, who had converted to Islam and given himself the name Ali Al Amriki, began telling his father he was “not afraid to die for the cause,” Ciccolo became alarmed. Alexander had a history of mental illness, and his interest in Islam had become an obsession. In October 2014, Ciccolo contacted the FBI about his son.
The federal agents could have monitored Alexander, or perhaps confronted him. Instead, as the bureau does in most such cases, agents launched an investigation. They found Alexander’s Facebook page, listed under his nom de guerre. There was a photograph of a young man in a wooded area wearing a head covering and holding a machete. “Another day in the forest strengthening myself,” the caption read. Another photo on his Facebook page appeared to show a dead American soldier. “Thank you Islamic State!” read the caption.
As part of a sting, an FBI informant contacted Alexander and offered to provide him with guns for an attack. After Alexander collected the weapons on July 4, 2015, FBI agents arrested him and charged him with terrorism-related offenses. As he was being processed at a detention center, he stabbed a nurse with a pen, causing a minor injury. His case made national news, and FBI Director James Comey told reporters that Alexander Ciccolo’s was among several plots related to the Fourth of July holiday that were foiled by counterterrorism agents. “I do believe that our work disrupted efforts to kill people, likely in connection with July 4,” Comey told reporters during a July 7, 2015, briefing.
Alexander Ciccolo is among 63 men and women who have been arrested in FBI stings targeting ISIS sympathizers, according to an analysis of federal terrorism prosecutions by The Intercept.
Demonstrating the evolving threat of terrorism in the United States, alleged ISIS sympathizers are now the primary targets of FBI stings, upstaging Al Qaeda, the Shabab, and all other terrorist groups. The first ISIS case in the United States culminated in an arrest in March 2014, and the number quickly grew. Fifty-eight people were charged in 2015 for alleged ISIS affiliations. In 2016, 32 FBI cases involved ISIS sympathizers, compared to just one each that year involving Al Qaeda and Shabab sympathizers.
But as with earlier FBI stings that primarily targeted Al Qaeda sympathizers, most of the targets of the bureau’s ISIS stings are aspirational, not operational.
In the majority of ISIS stings, targets were not in direct contact with ISIS representatives and did not have weapons of their own, government evidence showed. Instead, these targets were inspired by online propaganda to join ISIS and either made arrangements on their own to travel to Syria or were aided by FBI informants or undercover agents in their attempts join ISIS or plot attacks inside the United States.
Dressed in a black T-shirt and jeans, he refused to talk about the guns, but he defended ISIS as a just organization, even as he demonstrated his ignorance about the group. The FBI recorded the interview.
“ISIS claimed responsibility, right, for a lot of beheadings?” Ambrogio asked. “There’s someone who names himself Jihadi John and he beheads people, right? He does it in an online way so that people can see it. So what’s your feeling about that? They represent themselves as ISIS; they’re ISIS. What’s your feeling?”
“The people that you see being executed are criminals,” Alexander answered. “They’re criminals. They’re the lowest of the low.”
According to his family, Alexander, a high school dropout, had battled off and on with alcohol addiction. He was also admitted to a psychiatric institution when he was a teenager.
As a child, he went back and forth between the homes of his father, a stern cop who did not respond to requests for comment for this story, and his mother, something of a free spirit. Alexander followed in his mother’s footsteps.
“I raised him Catholic; he was baptized Catholic,” said Shelley MacInnes, his mother. “He stayed with his Catholic beliefs for quite a long time. I would say he is a very religious person and very spiritual, but as he got older, I think he started searching.”
Alexander Ciccolo first gravitated toward Buddhism and spent time at the Grafton Peace Pagoda in Petersburgh, New York. In 2012, he and other members of the Peace Pagoda walked around Lake Ontario to raise awareness of the dangers of nuclear power. A photograph from the time shows him wearing a green V-neck T-shirt and holding a handwritten sign that reads: “Peace walk for no more Fukushima.”
Shortly after, he returned to Massachusetts and announced that he would become a Muslim. “One day we were out having dinner, and he went to the bathroom,” MacInnes recalled. “He ran into an imam. … He was so excited. ‘Mom, you’re aren’t going to believe what just happened.’”
Alexander became fixated on Islam and ISIS, and he would talk often with his parents about his newfound beliefs. “He’s always been an investigator, never takes anything at face value,” MacInnes said. “As far as ISIS goes, my personal opinion is that he was investigating the validity of that organization, rather than taking the media’s answer for it.”
Following its sting playbook, the FBI introduced to Alexander an informant posing as an ISIS sympathizer. The informant and Alexander met for the first time in person on June 24, 2015. The young man told the informant that he wanted to travel to another state and use pressure cooker bombs to attack two bars and a police station. Over the course of a week, his plan changed from bombing bars and a police station to attacking a university. He boasted that he knew how to use sniper rifles and had grown up with guns. “I know what I’m doing,” he said.
But Alexander didn’t have any weapons, aside from a couple of machetes. His only would-be bomb components were a pressure cooker purchased from Wal-Mart and some half-made Molotov cocktails.
That’s where the FBI stepped in again. The undercover informant provided Alexander with two assault rifles and two handguns. As soon as Alexander took possession of the guns, FBI agents arrested him, charging him with attempting to provide material support to a terrorist organization and attempting to use weapons of mass destruction. He was also charged with being a felon in possession of firearms, owing to an earlier state conviction of driving under the influence.
Whether out of mental illness, immaturity, or naiveté, Alexander Ciccolo professed support for ISIS, but it’s unclear whether he would have posed a threat had the FBI informant not encouraged him and provided him with weapons. In this way, Ciccolo’s case is prototypical of ISIS stings.
In these cases, the FBI provides encouragement and capacity to otherwise hapless individuals.
For example, in a similar case in April 2016, the FBI arrested a South Florida man who allegedly plotted to bomb a Jewish community center. An FBI informant gave James Medina, a homeless man with a history of making baseless threats of violence, the opportunity. It was in fact the FBI informant who first came up with the idea of crediting their attack to ISIS. Farther north, in upstate New York, Emanuel L. Lutchman, another homeless man, told an FBI informant that he had received directions from an overseas ISIS member and was planning an attack, using a machete and knives, on a New Year’s Eve celebration in Rochester. The FBI’s informant provided the $40 Lutchman needed to purchase the machete and knives.
In other ISIS stings, the FBI has encouraged and helped to facilitate the international travel of would-be ISIS recruits. An example is the case of Jason Michael Ludke, a Milwaukee man who made contact with an FBI undercover employee through social media. The FBI undercover employee, pretending to be affiliated with ISIS, encouraged Ludke and his friend Yosvany Padilla-Conde to join the terrorist group. The pair drove from Wisconsin to Texas, where they were arrested. According to Padilla-Conde’s statements after the arrest, they were under the impression that the FBI undercover employee was going to assist them in crossing the border into Mexico and then traveling to Iraq or Yemen. Ludke and Padilla-Conde are facing charges of material support for terrorists.
The analysis of terrorism prosecutions by The Intercept shows that federal judges have wrestled with appropriate punishments for those convicted of ISIS-related terrorism offenses.
Some defendants who were arrested before they had an opportunity to travel to Syria have received relatively lenient sentences. Mohammed Hamzah Khan, of Bolingbrook, Illinois, was arrested as he attempted to board a flight to Turkey at O’Hare International Airport. He received about three years in prison. Shannon Maureen Conley, who lived in Colorado, received about four years after she was arrested at the airport in Denver, on her way to Turkey.
At the same time, defendants whose support for ISIS consisted of online activity, such as distributing propaganda on social media, have received comparable sentences to, and in some cases more prison time than, defendants who tried to join ISIS on the battlefield. Heather Elizabeth Coffman, of Glen Allen, Virginia, used several social media accounts to communicate with FBI informants posing as ISIS agents. She was sentenced to 4 1/2 years in prison. Ali Shukri Amin, who also lived in Virginia, admitted that he operated a pro-ISIS Twitter account and blog and provided instructions to ISIS supporters on how to use Bitcoin to avoid currency transfer restrictions. He was sentenced to more than 11 years in prison.
But the most significant prison sentences await those who, like Alexander Ciccolo, moved forward with terrorist plots in the United States, even if it was the FBI making them possible. Christopher Cornell, of Cincinnati, Ohio, plotted with an FBI informant to travel to Washington, D.C., and attack the U.S. Capitol. He was arrested as he was leaving a gun store. After pleading guilty to terrorism-related charges, Cornell was sentenced to 30 years in prison. Lutchman, who was involved in the purported plans to attack a New Year’s Eve celebration in upstate New York, pleaded guilty to material support and received a 20-year prison sentence.
It’s still too early to establish conclusive trends about the sentencing of ISIS defendants in U.S. District Courts. Of the 110 ISIS defendants charged, only 45 have been sentenced.
Yet the arrests of ISIS sympathizers continue at a steady clip, even when the targets of stings have proven themselves to be incompetent ISIS recruits.
An example is Mohamed Rafik Naji, of New York, who attempted five times to travel to ISIS territory but never made it. That’s when an FBI informant, posing as an ISIS affiliate, contacted him through Facebook.
The informant told him that ISIS needed someone to attack Times Square with a garbage truck. “I was saying if there is a truck, I mean a garbage truck, and one drives it there to Times Square and crushes them,” Naji told the informant, repeating the idea. Naji was indicted in November 2016 on a charge of material support for terrorists, the 93rd person to be charged in federal court in an ISIS-related case.
Alexander Ciccolo is now undergoing psychological evaluation; his trial is pending. MacInnes, Ciccolo’s mother, believes he was an impressionable young man manipulated by the FBI and set up with weapons that he never could have obtained on his own. “I don’t think he even knew what his plan was,” MacInnes said.