United States v. Shahzad (S.D.N.Y. June 21, 2010) (plea agreement letter)

June 23, 2010

* United States v. Shahzad (S.D.N.Y. June 21, 2010) (plea agreement letter)

The plea agreement letter is attached. Press release appears below:

WASHINGTON – Faisal Shahzad pleaded guilty today in Manhattan federal court before U.S. District Judge Miriam Goldman Cedarbaum to all counts of the 10-count indictment against him, for allegedly driving a car bomb into Times Square on the evening of May 1, 2010, the Justice Department announced.

Shahzad, 30, a naturalized U.S. citizen born in Pakistan, was taken into custody at John F. Kennedy International Airport (JFK Airport) on May 3, 2010, after he was identified by the Department of Homeland Security’s U.S. Customs and Border Protection while attempting to leave the United States on a commercial flight to Dubai. Shahzad was then charged in a five-count criminal complaint. On May 18, 2010, he was presented in Manhattan federal court before U.S. Magistrate Judge James C. Francis IV. Last week, on June 17, 2010, Shahzad was indicted in the Southern District of New York.

“Faisal Shahzad plotted and launched an attack that could have led to serious loss of life, and today the American criminal justice system ensured that he will pay the price for his actions,” Attorney General Eric Holder said. “We will not rest in bringing to justice terrorists who seek to harm the American people, and we will use every tool available to the government to do so.”

“This investigation included a combination of traditional law enforcement techniques and intelligence-based authorities, with men and women from a number of agencies working side-by-side in support of a common goal,” said FBI Director Robert S. Mueller.

“Today, less than two months after his arrest, Faisal Shahzad pleaded guilty to 10 felony charges for attempting to carry out a plot to bomb the heart of New York City,” said Preet Bharara, the U.S. Attorney for the Southern District of New York. “In admitting his guilt today, Shahzad reminded us of the uniquely serious threat that our city faces every single day. I express my gratitude and admiration for the agents and detectives of the FBI and New York Police Department (NYPD) who dedicate their lives to the daily fight to keep this city, its residents and its visitors, safe from harm.”

U.S. Attorney Bharara added that there is no plea agreement between the government and Shahzad, and that the investigation is continuing. Shahzad is scheduled to be sentenced by Judge Cedarbaum on Oct. 5, 2010, at 10 a.m.

According to the indictment to which Shahzad pleaded guilty, statements made during today’s proceeding, and the criminal complaint filed in Manhattan federal court:

In December 2009, Shahzad received explosives training in Waziristan, Pakistan, from explosive trainers affiliated with Tehrik-e-Taliban, a militant extremist group based in Pakistan. On Feb. 25, 2010, Shahzad received approximately $5,000 in cash in Massachusetts sent from a co-conspirator (CC-1) in Pakistan whom Shahzad understood worked for Tehrik-e-Taliban. Approximately six weeks later, on April 10, 2010, Shahzad received an additional $7,000 in cash in Ronkonkoma, N.Y., which was also sent at CC-1’s direction.

On March 15, 2010, Shahzad purchased a semi-automatic 9 millimeter Kel-Tec rifle in Connecticut. This rifle was found, loaded, in Shahzad’s car on the day of his arrest.

In April 2010, Shahzad contacted the seller of a Nissan Pathfinder after seeing an advertisement posted on a website. Thereafter, on April 24, 2010, Shahzad and the seller of the Pathfinder agreed to meet in a supermarket parking lot in Connecticut, where Shahzad paid the seller $1,300 for the Pathfinder. In April 2010, Shahzad also purchased components for the improvised explosive and incendiary devices that he loaded into the Pathfinder on May 1, 2010.

On May 1, 2010, Shahzad drove the Pathfinder, loaded with the improvised explosive and incendiary devices, to Manhattan and parked the Pathfinder in Times Square in the vicinity of 45th Street and Seventh Avenue. After parking the Pathfinder, Shahzad attempted to begin the detonation process of the improvised explosive and incendiary devices. Thereafter, Shahzad abandoned the Pathfinder and returned to his residence in Connecticut.

On May 3, 2010, Shahzad drove from Connecticut to JFK Airport as he attempted to flee to Dubai. He was arrested later that same day at JFK Airport. After his arrest, Shahzad admitted that he had recently received bomb-making training in Pakistan. He also admitted that he had brought the Pathfinder to Times Square and attempted to detonate it.

The indictment filed against Shahzad last week charges him with 10 offenses which carry the following potential penalties:

Count Charge Maximum Prison Term
1 Attempted use of a weapon of mass destruction Life
2 Conspiracy to use a weapon of mass destruction Life
3 Possession of a firearm during and in relation to a conspiracy to use a weapon of mass destruction Life*

4 Attempted act of terrorism transcending national boundaries Life

5 Conspiracy to commit an act of terrorism transcending national boundaries Life
6 Attempted use of a destructive device during and in relation to a conspiracy to commit an act of terrorism transcending national boundaries Life*
7 Transportation of an explosive 10 years
8 Conspiracy to transport an explosive 10 years
9 Attempted destruction of property by fire and explosive 20 years*
10 Conspiracy to destroy property by fire and explosive 20 years*

* Counts Three, Nine, and Ten each carry a mandatory minimum penalty of five years in prison. Because Shahzad pled guilty to Count Three, Count Six carries a mandatory minimum penalty of life in prison.

FBI New York Acting Assistant Director-in-Charge George Venizelos stated: “Today’s guilty plea is right on the mark. Faisal Shahzad was poised and ready to terrorize the citizens and visitors of New York City, and threaten the security of our nation. He set out to act on radical ideologies, but his evil plans were thwarted. The vigilance on behalf of ordinary citizens who alerted law enforcement of suspicious activity, and strength and swift actions taken by the FBI’s Joint Terrorism Task Force (JTTF), diverted this intended attack on our homeland. It’s the hard work of the FBI team along with our partnerships with law enforcement and the intelligence community that enables us to fight terrorism every day.”

Police Commissioner Raymond W. Kelly said, “The plea reflects outstanding and timely work by NYPD detectives and FBI agents in the immediate aftermath of the discovery of the car bomb in Times Square, as well as that of the accomplished team of prosecutors headed by United States Attorney Preet Bharara. We remain alert to and concerned by the threat of home grown terrorism aimed at New York City.”

The indictment was the result of the investigative efforts of the FBI’s Joint Terrorism Task Force (JTTF) in New York, Connecticut and Massachusetts, especially those JTTF members from the FBI and the New York City Police Department. U.S. Customs and Border Protection also made significant contributions to the case. Substantial assistance was also provided by the Justice Department’s National Security Division, as well as the U.S. Attorney’s Offices for the Districts of Connecticut and Massachusetts.

The prosecution is being handled by Assistant U.S. Attorneys Brendan R. McGuire, Randall W. Jackson, John P. Cronan and Jeffrey A. Brown of the Terrorism and International Narcotics Unit in the U.S. Attorney’s Office for the Southern District of New York.

Shahzad, Faisal – Government’s Letter Regarding Maximum Penalties.pdf

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Barhoumi v. Obama (D.C. Cir. June 22, 2010) (affirming denial of habeas)

June 23, 2010

* Barhoumi v. Obama (D.C. Cir. June 22, 2010) (affirming denial of habeas)

A D.C. Circuit panel (Tatel, joined by Ginsburg and Kavanaugh) has affirmed denial of habeas relief to GTMO detainee Sufyian Barhoumi. The opinion is posted here. Key aspects of the opinion include:

– affirmation that hearsay is admissible in the habeas proceedings

– affirmation that the preponderance standard is constitutionally permissible

– Barhoumi on appeal did not contest the detention standard advanced by the government, nor the claim that the group in question – Abu Zubaydah’s “militia”—constituted an “associated force” within the meaning of that standard. The question was whether the district court erred in finding that the government had sufficient evidence that Barhoumi was “part of” that group.

– Whether a person’s alleged conduct is of the kind adequate to justify a showing of membership is a question of law (e.g., whether training camp attendance or guesthouse residence = proof of membership); whether the evidence suffices to prove the particular person actually engaged in that conduct is, of course, a question of fact.

– Barhoumi argued for adoption of the Hamlily standard, developed by Judge Bates in 2009, pursuant to which the government should have to show that a person was part of a command structure taking orders/directions from a group, in order to prove membership in that group. The panel responded that “this court has yet to delineate the precise contours of the ‘part of’ inquiry—a legal issue,” but also that “we need not do so here because we conclude that even under the test espoused by Barhoumi, the district court committed no error” in finding that Barhoumi was part of Zubaydah’s militia.

– The evidence showed that Barhoumi had trained at the Khaldan camp, that Khaldan was a Zubaydah-run facility, and that Barhoumi was captured alongside Zubaydah at a guesthouse in Pakistan. The panel described as particularly important a diary belonging to a member of Zubaydah’s organization that identified Barhoumi (under an alias) as a permanent member of Zubaydah’s militia, and indicated that Barhoumi was providing explosives training to others in the group with an eye toward fighting against US forces in Afghanistan.