nationalsecuritylaw U.S. v. ‘Isa (E.D.N.Y. Dec. 9, 2011) (Iraq insurgency-related indictment)

December 9, 2011

The indictment in this case, along with my commentary on how it relates to the pending Daqduq situation, is here. From the press release:

NEW YORK – Today, a federal grand jury in Brooklyn, N.Y., returned an indictment charging Faruq Khalil Muhammad ‘Isa, 38, aka “Faruk Khalil Muhammad ‘Isa,” “Sayfildin Tahir Sharif” and “Tahir Sharif Sayfildin,” with aiding in the murder of five American soldiers in a suicide-bomb attack in Iraq in April 2009.

Specifically, he is charged with the murders of Staff Sergeant Gary L. Woods, 24, of Lebanon Junction, Ky.; Sergeant First Class Bryan E. Hall, 32, of Elk Grove, Calif.; Sergeant Edward W. Forrest Jr., 25, of St. Louis; Corporal Jason G. Pautsch, 20, of Davenport, Iowa; and Army Private First Class Bryce E. Gaultier, 22, from Cyprus, Calif.

The indictment also charges the defendant with conspiring to kill Americans abroad and providing material support to that terrorist conspiracy to kill Americans abroad.

In January 2011, the defendant was arrested and detained in Canada after he was charged by a federal complaint in the Eastern District of New York. The United States is seeking the defendant’s extradition from Canada in relation to the federal complaint in the Eastern District of New York. He remains in custody, and the defendant’s extradition hearing in Canada is currently scheduled for Jan. 30 to Feb. 1, 2012.

The charges were announced by Loretta E. Lynch, U.S. Attorney for the Eastern District of New York; Lisa Monaco, Assistant Attorney General for National Security; and Janice K. Fedarcyk, Assistant Director-in-Charge of the New York Field Office of the FBI.

The government’s investigation is being conducted by the FBI New York Joint Terrorism Task Force, with assistance provided by the Department of Defense, the Royal Canadian Mounted Police and the government of Tunisia.

If convicted, the defendant faces a maximum sentence of life in prison.

The government’s case is being prosecuted by Assistant U.S. Attorneys Zainab Ahmad, Carter H. Burwell and Berit W. Berger, with assistance provided by Mary Futcher and Stephen Ponticiello of the Counterterrorism Section in the Department of Justice’s National Security Division. The Criminal Division’s Office of International Affairs also provided assistance in this matter.

The charges in the indictment are merely allegations, and the defendant is presumed innocent unless and until proven guilty.

# # #


nationalsecuritylaw United States v. Mujahidh (W.D. Wash. Dec. 8, 2011) (guilty plea)

December 8, 2011

* United States v. Mujahidh (W.D. Wash. Dec. 8, 2011) (guilty plea)

From the DOJ press release

SEATTLE – A former Los Angeles man pleaded guilty today in connection with the June 2011 plot to attack a military installation in Seattle, announced Jenny A. Durkan, U.S. Attorney for the Western District of Washington; Lisa Monaco, Assistant Attorney General for National Security; and Laura M. Laughlin, Special Agent-in-Charge of the FBI Seattle office.

Walli Mujahidh, aka “Frederick Domingue, Jr.,” 32, pleaded guilty to conspiracy to murder officers and agents of the United States, conspiracy to use weapons of mass destruction and unlawful possession of a firearm. If the plea agreement is accepted by the court, Mujahidh will be sentenced to between 27 and 32 years in prison under the terms of the agreement. Following the prison term, Mujahidh will be on federal supervised release for the rest of his life. Mujahidh is scheduled to be sentenced by U.S. District Judge James L. Robart on April 16, 2012.

The other defendant in the case, Abu Khalid Abdul-Latif, aka “Joseph Anthony Davis,” 33, of Seattle, remains scheduled for trial in May 2012.

Law enforcement first became aware of the plot when a citizen alerted them that he/she had been approached about participating in the attack and supplying firearms to the conspirators. The person then agreed to work with law enforcement, which began monitoring Abdul-Latif and Mujahidh. Since early June, the conspirators were captured on audio and videotape discussing a violent assault on the Military Entrance Processing Station (MEPS). The MEPS is where each branch of the military screens and processes enlistees. In addition to housing many civilian and military employees, the building houses a federal daycare center.

In his plea agreement, Mujahidh admits that he became aware of the planned attack in May 2011, and in early June was making plans to travel to Seattle from Los Angeles to participate in the attack. Mujahidh arrived in Seattle on June 21, 2011, and in a meeting with a person who was working with law enforcement, Mujahidh suggested going into the MEPS with machine guns and grenades and killing everyone there.

The next day, the person working with police brought some firearms, which had been rendered inoperable by law enforcement, to a meeting with Mujahidh and Abdul-Latif. The men were arrested after they took possession of the weapons. Mujahidh is prohibited from possessing firearms due to a felony conviction in California for theft.

The case is being prosecuted by the U.S. Attorney’s Office for the Western District of Washington, with assistance from the Counterterrorism Section of the Justice Department’s National Security Division.

The investigation is being conducted by the FBI’s Joint Terrorism Task Force, which has investigators from federal, state and local law enforcement. The Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) contributed significant expertise to this investigation.


nationalsecuritylaw U.S. v. Holy Land Foundation (5th Cir. Dec. 7, 2011)

December 8, 2011

Yesterday, a Fifth Circuit panel (King, joined by Garza and Graves) affirmed the convictions of the individual defendants in the Holy Land Foundation case and also dismissed the appeal lodged by the foundation itself. Be warned; the document is 170 pages. Here is the table of contents, so you can get a sense of the topics addressed:

I. Factual and Procedural Background………………………………………………………..7

II. Discussion……………………………………………………………………………………………..16

A. Testimony of witnesses using pseudonyms………………………………………16

B. Hearsay evidence…………………………………………………………………………..22

1. Mohamed Shorbagi……………………………………………………………….23

2. Documents seized from the Palestinian Authority…………………..27

3. Elbarasse and Ashqar documents…………………………………………..34

C. Prejudicial evidence under Rule 403……………………………………………….46

D. Expert and lay opinion testimony…………………………………………………..52

1. John McBrien……………………………………………………………………….52

2. FBI Agents Lara Burns and Robert Miranda………………………….56

3. Matthew Levitt……………………………………………………………………..59

4. Steven Simon………………………………………………………………………..60

E. Letter rogatory………………………………………………………………………………62

F. Production of the defendants’ intercepted statements………………………65

G. Harmless and cumulative error……………………………………………………..77

1. Harmless error……………………………………………………………………..78

a. HLF’s connection to Hamas…………………………………………..80

b. Hamas’s control of the zakat committees……………………….88

2. Cumulative error…………………………………………………………………..94

H. Jury charge…………………………………………………………………………………..94

I. The search of HLF’s offices……………………………………………………………101

J. Defendant Elashi’s double jeopardy issue………………………………………111

1. Time…………………………………………………………………………………..113

2. Co-conspirators…………………………………………………………………..114

3. Statutory offenses……………………………………………………………….115

4. Overt acts…………………………………………………………………………..117

5. Place…………………………………………………………………………………..120

K. Defendant El-Mezain’s collateral estoppel issue…………………………….121

1. Collateral estoppel as a bar to the instant conviction……………..122

2. Collateral estoppel and the exclusion of evidence…………………..132

L. Mistrial and double jeopardy………………………………………………………..134

M. Challenge to FISA applications and intercepts……………………………..142

1. Disclosure of FISA applications and orders…………………………..143

2. Suppression of FISA intercepts…………………………………………….151

N. Sentencing………………………………………………………………………………….154

1. Terrorism adjustment………………………………………………………….154

2. Value of laundered funds……………………………………………………..156

O. Appeals of HLF and Nancy Hollander…………………………………………..158

1. Background………………………………………………………………………..158

2. HLF’s appeal………………………………………………………………………165

3. Hollander’s appeal………………………………………………………………169

III. Conclusion………………………………………………………………………………………….170


nationalsecuritylaw United States v. Ahmad (E.D. Va. Dec. 2, 2011) (guilty plea in LET material support case involving youtube video)

December 2, 2011

A very interesting material support case in that the conduct at issue was the creation and uploading to Youtube of an LeT propaganda video. From the press release:

ALEXANDRIA, VA. – Jubair Ahmad, 24, a native of Pakistan and resident of Woodbridge, Va., pleaded guilty today to providing material support to Lashkar-e-Tayyiba (LeT), a designated foreign terrorist organization.

Neil H. MacBride, U.S. Attorney for the Eastern District of Virginia; Lisa Monaco, Assistant Attorney General for National Security; and James W. McJunkin, Assistant Director in Charge of the FBI’s Washington Field Office, made the announcement after the plea was accepted by U.S. District Judge T. S. Ellis III.

Ahmad faces a maximum penalty of 15 years in prison when he is sentenced on April 13, 2012.

LeT, or “Army of the Pure,” serves as the military arm of the political movement Markaz al-Dawa wal-Irshad in Pakistan. The mission of LeT is to conduct and promote violent jihad against those considered to be the enemies of Islam. On Dec. 24, 2001, the U.S. Department of State designated LeT as a foreign terrorist organization. The focus of LeT operations has been attacks on the neighboring country of India, in particular the disputed region of Kashmir between Pakistan and India.

According to a statement of facts filed with the plea agreement, Ahmad was born and raised in Pakistan and in 2007, after receiving a visa from the U.S. Department of State, Ahmad moved from Pakistan to the United States with his family.

Ahmad admitted today that in September 2010, while at his residence in Woodbridge, he engaged in a series of communications with an individual named Talha Saeed, who was in Pakistan. Talha Saeed is the son of Hafiz Muhammad Saeed, the leader of LeT. Talha Saeed requested Ahmad to prepare a video that would contain a prayer by Hafiz Saeed calling for the support of jihad and the mujahideen. In addition, Talha Saeed instructed Ahmad to present a variety of violent images on the video while Hafiz Saeed’s prayer is heard in the background.

Talha Saeed directed Ahmad to begin the LeT video with a number of pictures of Hafiz Saeed, then show scenes where atrocities have been inflicted on Muslims, followed by the activities of the mujahideen conducting attacks in Kashmir. At one point, Ahmad asked Talha Saeed if he wanted to include an image of the Mumbai attack to show the power of LeT. This is a reference to LeT’s operation against the city of Mumbai, India, on Nov. 26, 2008, which resulted in the death of over 160 people, including six Americans. Talha replied that he should not use anything referring to Mumbai.

Ahmad admitted that Talha Saeed told him to search for “Lashkar-e-Taiba” on YouTube to find additional images of mujahideen operations to include in the video. Talha Saeed further stated that the video will be popular in Pakistan and will run continuously on significant media programs and presentations.

On Sept. 25, 2010, Ahmad completed the LeT video and uploaded it to a YouTube account on the Internet. The next day, Ahmad sent a communication to another person overseas in which he explained that “Hafiz Saeed’s son Talha Saeed” had requested him to prepare the video. Forensic examination by the FBI subsequently confirmed that Ahmad had constructed the LeT video on his computer.

This case is being investigated by the FBI’s Washington Field Office. Assistant U.S. Attorney Stephen M. Campbell from the National Security and International Crimes Unit of the Eastern District of Virginia and Trial Attorney John T. Gibbs from the Counterterrorism Section of the National Security Division in the U.S. Department of Justice are prosecuting the case on behalf of the United States.


nationalsecuritylaw United States v. Yusuf (S.D. Cal. Dec. 1, 2011) (guilty plea in al Shabaab material support case)

December 1, 2011

United States v. Yusuf (S.D. Cal. Dec. 1, 2011) (guilty plea in al Shabaab material support case)

DOJ’s press release, describing the guilty plea in this material support to al-Shabaab case, appears below. I would note, though, that it is an interesting exercise to ask how this case would have played out had sections 1031 and 1032 of the Senate NDAA bill, currently under debate, been in force.

Section 1032, the “mandatory detention” provision, could not apply to Yusuf if she were a US citizen…but if I’m not mistaken she is instead a lawful permanent resident, and hence would be subject to that provision if she comes within its substantive scope. Would she?

Well, 1032 applies to persons determined to

(i) be part of al Qaeda or associated forces (thus requiring an analysis of

(a) whether al-Shabaab at this point counts as an associated force of al Qaeda, a position the Obama Administration has not yet embraced so far as I know and

(b) whether Yusuf’s conduct amounts to becoming part of al-Shabaab…support alone not being sufficient under 1032)); and

(ii) have participated in a planned or actual attack or attempted attack on the US or its coalition partners (thus requiring an analysis of whether

(a) the Somali transitional government, or maybe the African Union force in Mogadishu, or maybe Kenyan or Ethiopian forces in the area, count as “coalition forces” and

(b) the allegation of a plot to go abroad to fight on behalf of al-Shabaab counts as a plot to attack those coalition forces).

So, in short, hard to say as to 1032.

Would she at least be subject to the possibility of military detention, under 1031? The answer is more likely yes, but still not dispositive. 1031 does not require involvement in a particular plot, so that problem is avoided. And it encompasses both members and non-member supporters, and the allegation here does sound in “support.” The question, then, is simply whether al-Shabaab is an associated force of al Qaeda.

In any event, here’s the press release about the actual plea agreement:

SAN DIEGO – Nima Yusuf, 25, a resident of San Diego, pleaded guilty today in federal court in San Diego to conspiring to provide material support to al-Shabaab, a foreign terrorist organization, U.S. Attorney Laura Duffy announced. Yusuf entered her plea before Magistrate Judge Ruben B. Brooks, and the plea is subject to final acceptance by U.S. District Judge Barry Ted Moskowitz at or before sentencing.

As part of her plea, Yusuf admitted that she entered into an agreement with Mohamed Abdullahi Hassan, Abdisalan Hussein Ali, Cabdulaahi Ahmed Faarax and Abdiweili Yassin Isse to provide material support to al-Shabaab in the form of money and personnel to work under the direction and control of al-Shabaab. Yusuf admitted that she entered this agreement despite knowing that the United States had designated al-Shabaab as a foreign terrorist organization and that it was illegal to provide money or other material support to al-Shabaab.

Hassan, Ali, Faarax and Isse are charged separately in a federal grand jury indictment in Minnesota for conspiring to provide material support to al-Shabaab, among other offenses. The Minnesota indictment also charges Faarax with solicitation to commit a crime of violence, based on his alleged recruitment of three other men to travel to Somalia to fight for al-Shabaab, one of whom is believed to have carried out a suicide bombing on al-Shabaab’s behalf in or about October 2008.

As part of her guilty plea, Yusuf admitted that she knew Hassan, Ali, Faarax and Isse had left the United States to join and fight for al-Shabaab in Somalia. She admitted that, between approximately February 2010 and November 2010, she sent approximately $1,450 to these men, who were then fighting in Somalia for al-Shabaab. She also admitted that, when she was twice interviewed by agents from the FBI and the Department of Homeland Security concerning her activities, she falsely denied sending any money to Somalia.

Al-Shabaab is a terrorist organization based in Somalia, with objectives including the overthrow of the Transitional Federal Government, the elimination of African Union support for the TFG and the imposition of Shari’a law in Somalia. Al-Shabaab has engaged in and used violence, intimidation and acts of terrorism, including suicide bombings, in Somalia and elsewhere to further its objectives.

Yusuf is next scheduled to appear in court for sentencing on Feb. 10, 2012, at 10:00 a.m., before U.S. District Judge Barry Ted Moskowitz in San Diego. She remains held without bail pending sentencing. She faces a potential maximum sentence of 15 years in prison and a $250,000 fine.

This investigation was conducted by the San Diego Joint Terrorism Task Force and the FBI.


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