Ashcroft v. Al-Kidd; United States v. Naidu (D. Maryland); United States v. Cromatie (S.D.N.Y.)

1. Cert. granted in Ashcroft v. Al-Kidd, no. 10-98 (S.Ct. Oct. 18, 2010)

The Supreme Court today granted certiorari in Ashcroft v. Al-Kidd, a civil suit that seeks to hold former Attorney General John Ashcroft liable for alleged misuse of the federal “material witness” statute in the days after 9/11 (specifically, by using it pretextually as a preventive detention mechanism rather than as a testimony-preservation mechanism). Review is limited to questions 1 & 2 from the petition. Those questions are:

1. Whether the court of appeals erred in denying petitioner absolute immunity from the pretext claim.

2. Whether the court of appeals erred in denying petitioner qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of respondent’s arrest.

2. United States v. Naidu (D. Maryland Oct. 18, 2010) (conviction in material support case)

Balraj Naidu of Singapore was convicted by a jury today on charges of conspiring to provide material support to the Tamil Tigers in the form of weaponry. Details from the press release follow:

BALTIMORE – A federal jury today convicted Balraj Naidu, 48, a citizen of the Republic of Singapore, of conspiracy to provide material support to a foreign terrorist organization, the Justice Department announced.

According to evidence presented at his five day trial, beginning in February 2006, Naidu and his co-conspirators attempted to purchase state of the art weaponry from China, Thailand, North Korea, the Philippines and Indonesia for the terrorist organization, Liberation Tigers of Tamil Eelam (Tamil Tigers) operating within Sri Lanka, to be used to fight against Sri Lankan government forces. Several arms merchants refused to supply the Tamil Tigers with weaponry once the destination for the arms had been disclosed by Naidu and his associates. In April 2006, Naidu’s Indonesian sources for weapons unwittingly introduced Naidu and his associates to an agent for an undercover business in Maryland that purported to sell military weapons.

The evidence showed that in the subsequent months, the conspirators’ negotiations with the undercover agent centered on the acquisition of American made weaponry. Terms of the sale included delivery of the weapons to locations in international waters off the coast of Sri Lanka. The weaponry was to be off-loaded by the Sea Tigers, the naval branch of the Tamil Tigers. A co-conspirator, Haniffa Bin Osman, visited Baltimore in the summer of 2006, where he examined and test-fired much of the weaponry. As a result of the trip, Tamil Tiger representatives wire transferred $250,000 into the undercover business’ accounts as down payment on a $900,000 weapons deal. Approximately 28 tons of weapons and ammunition, which the conspirators believed they were purchasing, was air-lifted to the U.S. territory of Guam. On Sept. 29, 2006, after inspecting the weapons and transferring an additional $450,000 into the undercover business’ accounts, co-conspirators Bin Osman, Haji Subandi, Erick Wotulo and Thirunavukarasu Varatharasa were arrested and indicted. The investigation continued and led to the indictment of Naidu and an alleged Tamil Tigers financier on charges of conspiracy to provide material support to the Tamil Tigers and related offenses.

Naidu faces a maximum sentence of 15 years in prison for conspiracy to provide material support to a foreign terrorist organization. U.S. District Judge Catherine C. Blake scheduled sentencing for Dec. 16, 2010, at 11 a.m.

Thirunavukarasu Varatharasa, 40, a citizen of the Democratic Socialist Republic of Sri Lanka; Haji Subandi, 73, and retired Indonesian Marine Corps General Erick Wotulo, 62, both citizens of the Republic of Indonesia; and Haniffa Bin Osman, 59, a citizen of the Republic of Singapore, pleaded guilty to their participation in the conspiracy and were sentenced to 57 months, 37 months, 30 months and 37 months in prison, respectively.

3. United States v. Cromatie (S.D.N.Y. Oct. 18, 2010) (

Convictions today in New York in connection with a plot to attack a synagogue and Jewish community center in the Bronx and to attempt to shoot down military aircraft flyijng out of Newburgh. Details from the press release:

NEW YORK – James Cromitie, aka Abdul Rahman, aka Abdul Rehman; David Williams, aka Daoud, aka DL; Onta Williams, aka Hamza; and Laguerre Payen, aka Amin, aka Almondo, were found guilty today of plotting to detonate explosives near a synagogue and Jewish community center in the Riverdale section of the Bronx, N.Y., and to shoot military planes located at the New York Air National Guard Base at Stewart Airport in Newburgh, N.Y., with Stinger surface-to-air guided missiles, announced Preet Bharara, the U.S. Attorney for the Southern District of New York. The four men were arrested on May 20, 2009, in the Bronx after planting what they believed were live explosives at various target locations, and were subsequently indicted on June 2, 2009.

“Homegrown terrorism is a serious threat, and today’s convictions affirm our commitment to do everything we can to protect against it,” said U.S. Attorney Bharara. “The defendants in this case agreed to plant bombs and use missiles they thought were very real weapons of terrorism. We are safer today as a result of these convictions. We thank the members of the jury for their time and diligent service. We also commend the extraordinary work of the prosecutors, agents, and detectives who demonstrated unyielding dedication during the investigation and prosecution of this case.”

According to the complaint, indictment, and the evidence presented at trial before U.S. District Judge Colleen McMahon, in June 2008, an informant working with the FBI was approached by Cromitie in Newburgh. Cromitie explained to the informant that his parents had lived in Afghanistan and that he was upset about the war there. Cromitie expressed interest in returning to Afghanistan and said that if he were to die a martyr, he would go to “paradise.” Cromitie also expressed an interest in doing “something to America.” The following month, Cromitie and the informant discussed Jaish-e-Mohammed, a Pakistan-based designated foreign terrorist organization, with which the informant claimed to be involved, and Cromitie stated that he would be interested in joining the organization to “do jihad.”

During further meetings with the informant, Cromitie, David Williams, Onta Williams and Payen discussed their desire to attack certain targets in New York, including a synagogue in the Bronx and military aircraft located at the Air National Guard Base. Cromitie asked the informant to supply surface-to-air guided missiles and explosives for the planned operations. The informant responded that he could provide Cromitie with C-4 plastic explosives.

After Cromitie, David Williams, Onta Williams and Payen selected the synagogue and Jewish community center they intended to target and conducted surveillance of military planes at the Air National Guard Base, Cromitie, David Williams and Payen drove with the informant toward Stamford, Conn., to obtain what the defendants were told would be a surface-to-air guided missile system and three improvised explosive devices (IEDs) containing C-4 plastic explosive material. The informant provided the defendants with a Stinger surface-to-air guided missile provided by the FBI that was not capable of being fired, telling the defendants that he had obtained it from Jaish-e-Mohammed. The informant also provided three IEDs that each contained more than 30 pounds of inert C-4 plastic explosives, again telling the defendants that he had obtained them from Jaish-e-Mohammed. Cromitie, David Williams and Payen transported these weapons back to Newburgh. Two days later, Cromitie, David Williams, Onta Williams and Payen met to inspect the “missile system” and the “explosive devices” and to further discuss the logistics of the operation.

Cromitie, 44; David Williams, 29; Onta Williams, 34; and Payen, 29, were found guilty of counts one through seven in the indictment. Cromitie and David Williams were also found guilty of count 8 in the indictment. The charges and maximum penalties are described in the chart below.

Count Charge Maximum Prison Term
1 Conspiracy to use weapons of mass destruction within the United States Life
2 Attempt to use weapons of mass destruction within the United States Life
3 Attempt to use weapons of mass destruction within the United States Life
4 Attempt to use weapons of mass destruction within the United States Life

5 Conspiracy to acquire and use anti-aircraft missiles Life*
6 Attempt to acquire and use anti-aircraft missiles Life*
7 Conspiracy to kill officers and employees of the United States Life

8 Attempt to kill officers and employees of the United States 20 years

*Counts Five and Six also carry mandatory minimum penalties of 25 years in prison.

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