nationalsecuritylaw United States v. Ferduas (D. Mass. Sep. 28, 2011) (arrest in sting involving plot to attack Pentagon)

September 28, 2011

* United States v. Ferduas (D. Mass. Sep. 28, 2011) (arrest in sting involving plot to attack Pentagon)

The complaint and underlying affidavit for the arrest are attached. In brief, the case involves a US citizen who thought he was working with members of al Qaeda to (i) create IED components for use against American soldiers in Iraq and (ii) carry out an attack on the Pentagon, among other possible targets. He was arrested today after he took delivery of C4, grenades, and firearms in connection with the planned Pentagon attack. The charges contemplated by the complaint include attempted use of explosives in violation of 18 USC 844, attempted destruction of a national defense facility in violation of 18 USC 2155, and attempted provision of material support to al Qaeda in violation of 18 USC 2339B. From the press release:

BOSTON – A 26-year-old Ashland, Mass., man was arrested and charged today in connection with his plot to damage or destroy the Pentagon and U.S. Capitol, using large, remote controlled aircraft filled with C-4 plastic explosives. Rezwan Ferdaus, a U.S. citizen, was also charged with attempting to provide material support and resources to a foreign terrorist organization, specifically to al-Qaeda, in order to carry out attacks on U.S. soldiers stationed overseas.

“Our top priority is to protect our nation from terrorism and national security threats. The conduct alleged today shows that Mr. Ferdaus had long planned to commit violent acts against our country, including attacks on the Pentagon and our nation’s Capitol. Thanks to the diligence of the FBI and our many other law enforcement partners, that plan was thwarted,” said U.S. Attorney for the District of Massachusetts Carmen M. Ortiz. “I want the public to understand that Mr. Ferdaus’ conduct, as alleged in the complaint, is not reflective of a particular culture, community or religion,” she added. “In addition to protecting our citizens from the threats and violence alleged today, we also have an obligation to protect members of every community, race and religion against violence and other unlawful conduct.”

The public was never in danger from the explosive devices, which were controlled by undercover FBI employees (UCs). The defendant was closely monitored as his alleged plot developed and the UCs were in frequent contact with him.

Richard DesLauriers, Special Agent in Charge of the FBI’s Boston Division said, “Today’s arrest was the culmination of an investigation forged through strong relationships among various Massachusetts law enforcement agencies to detect, deter and prevent terrorism. Each of the more than 30 federal, state and local agencies on the FBI’s Joint Terrorism Task Force (JTTF) worked together to protect the community from this threat. In this particular investigation, the Worcester, Ashland and Framingham Police Departments and the Bureau of Alcohol, Tobacco, Firearms and Explosives, played particularly critical roles. The communities of Worcester, Ashland and Framingham should be proud of the unwavering commitment and professionalism the agencies demonstrated in ensuring that their towns and region were safe from harm. The Massachusetts State Police and the Commonwealth Fusion Center also contributed significantly to this investigation.

“The FBI used an undercover operation to conduct this investigation. Undercover operations are used to combat all types of crimes and criminals, including in the counter-terrorism arena.

“The JTTF initiated this investigation because we have an obligation to take action to protect the public whenever an individual expresses a desire to commit violence. A committed individual, even one with no direct connections to, or formal training from, an international terrorist organization, can pose a serious danger to the community,” added DesLauriers. “It is important to remember that our system of justice is based on the notion of individual responsibility. Therefore, no one should cite Mr. Ferdaus’ actions as an excuse or reason to engage in any unlawful behavior against others in the community. We will work diligently to protect the civil rights of all Americans.”

The affidavit alleges the following: Ferdaus, a Northeastern University graduate with a degree in physics, began planning to commit a violent “jihad” against the U.S. in early 2010. He obtained mobile phones, each of which he modified to act as an electrical switch for an IED. He then supplied the phones to FBI UCs, who he believed to be members of, or recruiters for, al Qaeda. According to the affidavit, Ferdaus believed that the devices would be used to kill American soldiers overseas. During a June 2011 meeting, he appeared gratified when he was told that his first phone detonation device had killed three U.S. soldiers and injured four or five others in Iraq. Ferdaus responded, “That was exactly what I wanted.”

According to the affidavit, after each subsequent delivery, Ferdaus was anxious to know how well each of his detonation devices had worked and how many Americans they had killed. During recorded conversations, Ferdaus stated that he devised the idea of attacking the Pentagon long before he met with the government’s cooperating witness (CW) and UC, and that his jihad had, “started last year.”

In recorded conversations with the CW that began in January 2011, Ferdaus stated that he planned to attack the Pentagon using aircraft similar to “small drone airplanes” filled with explosives and guided by GPS equipment. According to the affidavit, in April 2011, Ferdaus expanded his plan to include an attack on the U.S. Capitol. In May and June 2011, Ferdaus delivered two thumb drives to the UCs, which contained detailed attack plans with step-by-step instructions as to how he planned to attack the Pentagon and Capitol. The plans included using three remote controlled aircraft and six people, including himself whom he described as an “amir,” i.e., an Arabic term meaning leader.

During various recorded meetings, Ferdaus envisioned causing a large “psychological” impact by killing Americans, including women and children, who he referred to as “enemies of Allah.” According to the affidavit, Ferdaus’ desire to attack the United States is so strong that he confided, “I just can’t stop; there is no other choice for me.”

In May 2011, Ferdaus traveled from Boston to Washington, D.C., conducted surveillance and took photographs of his targets (Pentagon and Capitol), and identified and photographed sites at the East Potomac Park from which he planned to launch his aircraft filled with explosives. Upon his return, Ferdaus told the UC that “more stuff ha[d] to be done,” that his plan needed to be expanded, and that he had decided to couple his “aerial assault” plan with a “ground directive.” Ferdaus indicated that his ground assault plan would involve the use of six people, armed with automatic firearms and divided into two teams. Ferdaus described his expanded attack as follows:

…with this aerial assault, we can effectively eliminate key locations of the P-building then we can add to it in order to take out everything else and leave one area only as a squeeze where the individuals will be isolated, they’ll be vulnerable and we can dominate.

Once isolated, Ferdaus planned to “open up on them” and “keep firing” to create “chaos” and “take out” everyone. He also provided the expanded plan to the UC on a thumb drive.

Between May and September 2011, Ferdaus researched, ordered and acquired the necessary components for his attack plans, including one remote controlled aircraft (F-86 Sabre). This morning prior to his arrest, Ferdaus received from the UCs 25 pounds of (what he believed to be) C-4 explosives, six fully-automatic AK-47 assault rifles (machine guns) and grenades. In June 2011, Ferdaus rented a storage facility in Framingham, Mass., under a false name, to use to build his attack planes and maintain all his equipment.

According to the affidavit, in August 2011, the F-86 remote controlled aircraft was delivered to the Framingham storage facility. Ferdaus delivered a total of eight detonation devices to the UCs over the course of the investigation, which he built with the intention that they be used by al Qaeda operatives overseas to kill U.S. soldiers. On Sept. 20, 2011 Ferdaus made a training video, which he provided to the UCs, demonstrating how to make “cell phone detonators.”

According to the affidavit, at today’s meeting the UCs allowed Ferdaus to inspect the explosives and firearms (a quantity of C-4 explosives, three grenades, and six fully-automatic AK-47 assault rifles) that the UCs delivered, and that Ferdaus had requested for his attack plan. After inspecting the components, Ferdaus brought them to his storage unit, took possession of the explosives and firearms, and locked them in his storage unit. Ferdaus was then immediately arrested.

Although Ferdaus was presented with multiple opportunities to back out of his plan, including, being told that his attack would likely kill women and children, the affidavit alleges that Ferdaus never wavered in his desire to carry out the attacks.

If convicted Ferdaus faces up to 15 years in prison on the material support and resources to a foreign terrorist organization charge; up to 20 years in prison on the charge of attempting to destroy national defense premises; and a five year minimum mandatory in prison and up to 20 years on the charge of attempting to damage and destroy buildings that are owned by the United States, by using an explosive. On each charge Ferdaus also faces up to three years of supervised release and a $250,000 fine.

The case was investigated by the FBI, with assistance from the Worcester, Ashland and Framingham Police Departments and the Bureau of Alcohol, Tobacco, Firearms and Explosives. The case is being prosecuted by Assistant U.S. Attorneys B. Stephanie Siegmann and Donald L. Cabell of Ortiz’s Anti-Terrorism and National Security Unit.

11-4270 comp.pdf

11-4270 aff.pdf


nationalsecuritylaw United States v. al-Nashiri (Mil. Com. Sep. 28, 2011) (charges referred)

September 28, 2011

Ok, looks like the military commission process is ready to roll forward again. Charges have just been referred in the al-Nashiri case. Next step: arraignment. Thanks to the very-slick new commissions website (www.mc.mil), the charges are available here. They include some but not all the charges originally specified by prosecutors. To wit:

Charge 1: Using Treachery/Perfidy (10 USC 950t(17)) – the idea here is that the use of a civilian boat, civilian clothing, and so forth to get close to the USS Cole exploited the protection for civilians under the law of war.

Charge 2: Murder in Violation of the Law of War (10 USC 950t(15)) – the idea here is that the perfidious attack rendered the resulting murders violations of the law of war)

Charge 3: Attempted Murder in Violation of the Law of War (10 USC 950t(28)) – same as above as to the Cole, but a separate specification mounts this charge also in relation to the failed attack on the USS Sullivans in January 2000.

Charge 4: Terrorism (10 USC 950t(24)) – The first idea here is that the attack on the Cole was intended to influence the government through unlawful violence. A second specification presents the same claim as to the 2002 attack on the MV Limburg.

Charge 5: Conspiracy (10 USC 950t(29)) – The conspiracy charge as referred is a touch narrower than it was when first specified. References to activities in Qatar and Bosnia have been deleted, for example. But the bottom line is the same: a conspiracy with other al Qaeda figures to commit terrorism and murders in violation of the law of war, supported by various overt acts. Interestingly, the convening authority deleted the first specified overt act, having to do with allegations that al-Nashiri between 1994 and 1999 traveled to various locations to obtain training and participated in fighting.

Charge 6: Intentionally Causing Serious Bodily Injury (10 USC 950t(13)) – similar to the murder count, related to the Cole attack.

Charge 7: Attacking Civilians (10 USC 950t(2)) – Based on the Limburg attack.

Charge 8: Attacking Civilian Objects (10 USC 950t(3) – same as above

Charge 9: Hazarding a Vessel (10 USC 950t(23) – same as above

Deleted charges: The Convening Authority did not refer the destruction of property in violation of the law of war charge, nor the attempt version of that charge.

From DOD’s press release:

The Department of Defense announced today that the Convening Authority, Office of Military Commissions referred charges to a military commission in the case of United States v. Abd Al Rahim Hussayn Muhammad Al Nashiri. The referred charges allege, among other things, that Al Nashiri was in charge of the planning and preparation for the attack on USS Cole (DDG 67) in the Port of Aden, Yemen, on Oct. 12, 2000. That attack killed 17 sailors, wounded 37 sailors, and severely damaged the ship.

The Convening Authority referred the charges to a capital military commission, meaning that, if convicted, Al Nashiri could be sentenced to death. Pursuant to the reforms in the Military Commissions Act of 2009, Al Nashiri has been provided with additional counsel, learned in the applicable law relating to capital cases, to assist in his defense.

The charges also allege that Al Nashiri was in charge of planning and preparation for an attempted attack on USS The Sullivans (DDG 68) as that ship refueled in the Port of Aden on Jan. 3, 2000. The charges further allege that Al Nashiri was in charge of the planning and preparation for attack on the French civilian oil tanker MV Limburg in the Gulf of Aden on Oct. 6, 2002. This attack resulted in the death of one crewmember and the release of approximately 90,000 barrels of oil into the gulf.

In accordance with Military Commissions rules and procedures, the Chief Trial Judge of the Military Commissions Trial Judiciary will assign a military judge to the case, and Al Nashiri will be arraigned at Guantanamo within 30 days of service of the referred charges upon him


nationalsecuritylaw United States v. Alwan (W.D. Kentucky Sep. 27, 2011) (denial of motion to dismiss)

September 28, 2011

* United States v. Alwan (W.D. Kentucky Sep. 27, 2011) (denial of motion to dismiss)

District Judge Thomas Russell has denied defendant Waad Ramadan Alwan’s motion to dismiss counts 1 and 2 of the indictment against him, in a much-discussed prosecution involving individuals accused of having been insurgents in Iraq who attacked American troops. The eleven page opinion holds as follows:

(i) 18 USC 2332 and 2332a have extraterritorial application, and there is no implied exception precluding their application to contexts of armed conflict overseas; and

(ii) neither is limited by Article 64 of the Fourth Geneva Convention, which requires Occupying Powers to permit the courts and legal system of an occupied territory to continue to function subject to certain limitations; nothing in Article 64, the court concluded, precludes concurrent jurisdiction as in this case.


nationalsecuritylaw Upcoming event: Conference in Milan, Dec. 1-2, on national security, secrecy, and constitutional law

September 28, 2011

* IACL and Bocconi University present “Secrecy, National Security, and the Vindication of Constitutional Law” (Dec. 1-2, 20110) (Milan)

Going to be in Milan in early December, or looking for a reason to go?

The International Association of Constitutional Law Research Group on Constitutional Responses to Terrorism

and

The Bocconi University – Angelo Sraffa Department of Law

invite you to a Conference:

Secrecy, National Security, and

the Vindication of Constitutional Law

at Bocconi University, Milan, Italy, Dec. 1-2, 2011

In virtually every nation, assertions of the need for secrecy on matters of counterterrorism policy and practice have created tensions with efforts to ensure transparency, accountability and procedural fairness. Secrecy claims have grown only more insistent in the wake of the terrorist attacks of September 11, 2001, and in many other nations since. This workshop will address in a comparative frame the ways that various constitutional systems have sought to balance this tension between transparency and fairness on the one hand, and secrecy and security on the other.

Featured speakers include scholars, judges, and lawyers from twelve countries, among which Sir Stephen Sedley, Lord Justice (Ret.) of the Court of Appeal of England and Wales; Justice Lech Garlicki of the European Court of Human Rights, Gita Gutierrez, an attorney with the Center for Constitutional Rights who has represented Guantanamo detainees; Murray Hunt, counsel to the UK Parliament Joint Committee on Human Rights; and constitutional scholars Daphne Barak-Erez, David Cole, Kent Roach, Martin Scheinin, and Stephen Schulhofer. Panels will discuss the impact of secrecy on criminal trials, administrative proceedings (such as the designation of “terrorists” for terror financing prohibitions), detention hearings, and legislative process.

Attendance at the conference is free and open to the public, but you must register at: http://www.unibocconi.eu/wps/wcm/connect/News+and+Events/Events/Bocconi+Events/Program+of+Events/ev2011030127

A full programme for the conference is available at: http://www.unibocconi.eu/wps/wcm/connect/News+and+Events/Events/Bocconi+Events/Program+of+Events/ev2011030127

Poster WS Bocconi.pdf

Program WS Bocconi.pdf

Advertisement WS Bocconi.doc


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