nationalsecuritylaw United States v. Kadir (E.D.N.Y. Dec. 15, 2010)

December 16, 2010

* United States v. Kadir (E.D.N.Y. Dec. 15, 2010)

A life sentence yesterday for Abdul Kadir in connection with the plot targeting JFK airport. Recall that Kadir was convicted by a jury last summer, after a lengthy trial, of conspiring to carry out an attack on the airport involving fuel tanks and pipelines. Details from the DOJ press release follow:

BROOKLYN, NY – Earlier today, in the Eastern District of New York, U.S. District Judge Dora L. Irizarry sentenced Abdul Kadir to life in prison for conspiring to attack John F. Kennedy International Airport in Queens, N.Y., by exploding fuel tanks and the fuel pipeline under the airport. Kadir and his co-conspirators believed their attack would cause extensive damage to the airport and to the New York economy, as well as the loss of numerous lives.

A federal jury convicted Kadir and co-conspirator Russell Defreitas in July 2010, after a nine-week trial. A third defendant, Abdel Nur, pleaded guilty before trial to supporting the plot and faces a sentence of up to 15 years. A fourth member of the plot, Kareem Ibrahim, faces trial on the same charges as Defreitas and Kadir.

The evidence at trial established that Defreitas, a naturalized U.S. citizen from Guyana, originated the idea to attack JFK Airport and its fuel tanks and pipelines by drawing on his prior experience working at the airport as a cargo handler. During multiple trips to Guyana and Trinidad in 2006 and 2007, Defreitas recruited Kadir and others to join the plot. Between trips, Defreitas engaged in video surveillance of JFK Airport and transported the footage back to Guyana to show Kadir and their co-conspirators. Kadir, a trained engineer with connections to militant groups in Iran and Venezuela, provided the conspirators with links to individuals with terrorist experience, advice on explosive materials, and a bank account through which to finance the terrorist attack. The members of the plot attempted to enlist support from prominent international terrorist groups and leaders, as well as the government of Iran, including Abu Bakr, leader of the Trinidadian militant group Jamaat Al Muslimeen, and Adnan El Shukrijumah, an al-Qaeda leader.

At trial, Kadir, a former member of the Guyanese parliament, admitted that he regularly passed information to Iranian authorities about sensitive topics, including the Guyanese military, and believed himself bound to follow fatwas from Iranian religious leaders. On June 2, 2007, Kadir was arrested in Trinidad aboard a plane headed to Venezuela, en route to Iran. He was subsequently extradited to the United States.

The specific charges Kadir was convicted of were: conspiracy to attack a public transportation system, conspiracy to destroy a building by fire or explosive, conspiracy to attack aircraft and aircraft materials, conspiracy to destroy international airport facilities and conspiracy to attack a mass transportation facility.

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nationalsecuritylaw Forthcoming Scholarship

December 15, 2010

* Forthcoming Scholarship

Still a Bad Idea: Military Commissions Under the Obama Administration

David W. Glazier
Loyola Law School Los Angeles

Although Senator Obama was critical of the Bush administration’s military commissions, President Obama surprised many observers by reviving the trials. Congress then enacted the Military Commissions Act of 2009, improving their procedural fairness including a categorical ban on statements obtained through torture and cruel, inhuman, or degrading treatment. The new statute largely quieted previous criticism and support has grown for commission use in preference to federal courts. This article argues that the commissions remain badly, if not fatally, flawed in both procedure and substantive law. The bar against evidence obtained through coercion is ineffective, for example. Prosecutors seem determined to use such evidence, purporting to rely on commission judges as gatekeepers. But the adversarial commission process then shifts the effective burden of keeping the evidence out to the defense, which is substantially impeded by government control of information about interrogations, abuse of classification rules, and lack of good faith discovery. Other procedural issues include the multiple roles allowed the civilian convening authority, denial of defense representation by counsel of choice, and the inequality of resources and access to evidence between prosecution and defense. Issues with the substantive law being applied are even more significant, with serious defects in almost all offenses prosecuted to date. The most common charges, conspiracy and providing material support to terrorism are not recognized violations of the law of armed conflict which would make them prohibited ex post facto enactments. Other offenses have serious problems as applied, being used to prosecute suspected terrorists on the basis of their status as unprivileged belligerents rather than for conduct violating the law of war. These factors may result in commission verdicts being overturned during judicial review; they will surely undermine the trials’ credibility and enhance support for America’s adversaries.

Journal of National Security Law & Policy, Volume 4 Issue #2 (2010)

The new issue of JNSL&P is now out, and as always well-worth a read. You probably already have a subscription ($30) already, but just in case here are the contents of the latest issue:

One Lantern in the Darkest Night: The CIA’s Inspector General
Ryan M. Check & Afsheen John Radsan

The Laws of War as a Constitutional Limit on Military Jurisdiction
Stephen I. Vladeck

The Choice of Law Against Terrorism
Mary Ellen O’ Connell

Balancing Security and Liberty in Germany
Russell A. Miller

Security First? Patterns and Lessons from China’s Use of Law To Address National Security Threats
Jacques deLisle

The International Standardization of National Security Law
Kim Lane Scheppele

The Sacrificial Yoo: Accounting for Torture in the OPR Report
David D. Cole

A Knowledgeable Insider Warns of the Challenges in Shaping Counterterrorism Policies
(reviewing Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism by Stewart A. Baker)

John H. Shenefield

______________

The Principle of Proportionality Under International Humanitarian Law and Operation Cast Lead

Robert Perry Barnidge Jr.
University of Reading – School of Law

NEW BATTLEFIELDS/OLD LAWS, William C. Banks, ed., Columbia University Press, September 2011

Abstract:
This chapter critically examines the principle of proportionality under international humanitarian law and contextualizes its vulnerabilities by looking at Israel’s actions during Operation Cast Lead in the Gaza Strip between December 27, 2008, and January 18, 2009. It begins by providing a black letter law overview of the principle. Although widely accepted, the proportionality principle suffers from significant shortcomings that impact its usefulness as a predictable tool for distinguishing between the lawful and the unlawful, particularly in the context of asymmetrical warfare. These shortcomings exist at both a theoretical level, in the abstract, and at a practical level. To focus these discussions, the second half of this chapter looks at the largely negative international reaction to Israel’s actions during Operation Cast Lead. This reaction, which was, and has been, typically couched with a feigned certainty that belies and leaves unanswered the theoretical shortcomings of the principle of proportionality, suggests that, more often than not, proportionality acts as the ultimate exemplar of law used instrumentally, as a tool to further a particular politics and paradigm of power.

Excerpted from the forthcoming: New Battlefields/Old Laws edited by William C. Banks scheduled for publication in September 2011. Copyright (c) 2010 Columbia University Press. Used by arrangement with the Publisher. All rights reserved.

"Use and Misuse of Evidence Obtained During Extraordinary Renditions: How Do We Avoid Diluting Fundamental Protections?"

NSU Shepard Broad Law Center Research Paper

VICTOR HANSEN, New England Law | Boston
Email: vhansen

This article considers and questions the ways in which grand schemes of rights infringement such as extraordinary rendition can translate into specific but also corrosive questions of accommodation in the law of evidence. This article enables us to see the extents to which questions considered to be either ‘grand’ or ‘minor’ in the context of counter-terrorism and human rights protections are, in fact, inter-connected. The article focuses on the use of information obtained from detainees who were subjected to extraordinary rendition. The article examines how the information obtained during these periods of extraordinary rendition might be used in any subsequent criminal prosecutions of the detainees. The article explores the rules in both U.S. Federal Court and the Military Commissions which govern the admissibility of evidence obtained during extraordinary renditions and questions whether evidence obtained under this practice should be admissible in any subsequent prosecutions of the detainees. The paper examines the likely corrosive impact that the use of this evidence could have on fundamental due process protections and concludes that while the admissibility of this evidence is problematic in any forum, trying these suspects in federal court is the best option available.

"Scholars and Security"

Perspectives on Politics, Vol. 8, No. 4, p. 1095, 2010

PAUL BRACKEN, Yale School of Management
Email: paul.bracken

A reset of relations between academia and the US security community is needed to manage an increasingly dangerous international order. Concerns about Pentagon co-optation of academia pale in comparison to continued reliance on a loosely associated collection of DoD, the intelligence community, Congressional staffers, contractors, and Washington based think tanks for strategic thinking. Few have noticed how the intellectual base of US defense and security thinking has concentrated geographically to inside the Washington beltway. In contrast, the analytical structures of thought leadership in World War II and the Cold War had a much broader intellectual base, drawing from wider segments of American life.

The paper explores several case studies of the changing market for thought leadership in US security thinking, arguing that a decisive factor reshaping it in the past has been the degree of peril and risk. As the evident danger grew, thinking became more serious and focused. We are, once again, on the cusp of such a change in the locus of US thinking.


nationalsecuritylaw forthcoming scholarship: Chesney on the Individual Scope of Detention Authority in the Habeas Caselaw

December 14, 2010

* Forthcoming Scholarship

With apologies for the shameless self-promotion. Note that this is a draft, and comments/criticisms are welcome.

Who May Be Held? Military Detention Through the Habeas Lens

Robert Chesney (University of Texas School of Law)

52 Boston College Law Review (forthcoming 2011)

We lack consensus regarding who lawfully may be held in military custody in the contexts that matter most to U.S. national security today—i.e., counterterrorism and counterinsurgency. More to the point, federal judges lack consensus on this question. They have grappled with it periodically since 2002, and for the past three years have dealt with it continually in connection with the flood of habeas corpus litigation arising out of Guantanamo in the aftermath of the Supreme Court‘s 2008 decision in Boumediene v. Bush. Unfortunately, the resulting detention jurisprudence is shot through with disagreement on points large and small, leaving the precise boundaries of the government‘s detention authority unclear.

Part I opens with an abstract typology of criteria and constraints that might be used to define a detention standard at the individual level. Part II then provides further context with a thumbnail sketch of two overarching disagreements that greatly complicate the detention debate: we do not agree as to which bodies of law govern this question, nor do we agree as to what each particular body of law actually has to say, if anything, regarding individualized detention criteria even if that body is applicable. Part III follows with a survey of about two dozen habeas decisions between 2002 and 2010 in which courts grapple with the individualized-scope issue, using the typology from Part I as a device to facilitate comparison of the decisions.

With respect to affirmative predicates for detention, the survey concludes that something close to consensus has emerged regarding the use of group membership as a sufficient condition for detention, but that there may yet be considerable disagreement as to what counts as membership in this context. The survey also notes that the jury remains out with respect to whether non-member support for certain groups may also function as a sufficient condition for detention. With respect to variables that can function as constraints on detention authority, the survey shows that the courts have developed consensus against employing certain constraints (such as forbidding the use of detention as to citizens, or in circumstances where the government might have a criminal prosecution alternative). On the other hand, the question of geographic constraints on the scope of detention authority remains unsettled.

Part IV considers the ramifications of this descriptive account. I open by arguing that the lingering uncertainty matters a great deal both in terms of the remaining Guantanamo cases and in terms of other military activities that take place in the shadow of the habeas caselaw. I then consider the arguments for and against legislation to reduce the uncertainty, finding that the case for legislation is difficult but ultimately persuasive in the abstract (note that this paper is not a pitch for adopting some particular legislative proposal). Finally, I explain that the detention litigation illustrates three larger phenomena: (i) the dynamic relationship between law and strategic context; (ii) the increasing significance of domestic courts for purposes of developing international humanitarian law, and (iii) the increasing extent to which domestic law challenges both international humanitarian law and international human rights law for primacy when it comes to the legal regulation of national security-related activities.


nationalsecuritylaw United States v. Garcia, et al. (Dec. 14, 2010) (FARC indictment)

December 14, 2010

* United States v. Garcia, et al., (D.D.C. Dec. 14, 2010) (FARC indictment)

Eighteen FARC members, including a Dutch national, have been indicted on a variety of hostage-taking and material-support charges stemming from the kidnapping of three Americans in Columbia. The indictment (the fifth in a series of FARC-related indictments out of DC) is attached, and the press release details follow:

WASHINGTON – Tanja Anamary Nijmeijer, a Dutch national who moved to Colombia and joined the Revolutionary Armed Forces of Colombia (FARC) in 2002, and 17 other members of the FARC designated foreign terrorist organization were indicted by a federal grand jury in Washington, D.C., today on seven counts of terrorism and weapons charges arising out of their participation in the hostage-taking of three American citizens in the Republic of Colombia.

The three former hostages – Marc Gonsalves, Keith Stansell and Thomas Howes – were held in the Colombian jungle by members of the FARC for more than five years, until their rescue by Colombian military forces on July 2, 2008.

The indictment charges Nijmeijer, 32, and the other 17 defendants with one count of conspiracy to commit hostage taking, three substantive counts of hostage taking, one count of using and carrying a firearm during a crime of violence and two counts of conspiracy to provide material support to terrorists and a designated foreign terrorist organization.

Sixteen of the defendants are being charged for the first time; two others, charged earlier, face new counts in today’s indictment. If convicted of these charges, each defendant would face a maximum term of up to 60 years of incarceration, the maximum sentence permitted under Colombian law for Colombian nationals extradited to the United States for prosecution. The weapons charge carries a statutory mandatory minimum penalty of 30 years incarceration. Four of the 18 defendants are also charged in count two of the indictment with an eighth count, the premeditated murder of a U.S. national outside the United States, done during the perpetration of, and attempt to perpetrate, a kidnapping, which also carries a maximum sentence of up to 60 years incarceration in this case.

Marc Gonsalves, Keith Stansell, Thomas Howes, Thomas Janis and a Colombian national, Sgt. Luis Alcides Cruz, were conducting counter-drug aerial surveillance in southern Colombia on Feb. 13, 2003, when their Cessna aircraft experienced engine failure and was forced to make an emergency landing on a remote mountainside where a large contingent of FARC guerrillas were gathered. All five occupants of the plane survived the crash, but were immediately taken captive by the FARC guerrillas. The pilot of the plane, Thomas Janis, and the Colombian national, Sgt. Cruz, were both immediately executed by the FARC, and their bodies were left near the crash site. The other three, Mr. Gonsalves, Mr. Stansell and Mr. Howes, were held under barbaric conditions in the jungle for more than five years.

The indictment alleges that the defendants used choke harnesses, chains, padlocks and wires to bind the necks and wrists of the American hostages to prevent their escape, and constructed a large barbed-wire concentration camp to hold dozens of civilian hostages in the jungle for more than a year, including the three Americans.

As Colombian rescue efforts intensified in later years, the indictment alleges that the defendants forced the hostages to move long distances, from camp to camp, including a grueling 40-day march while carrying heavy backpacks through dense jungle to outrun Colombian military forces. The defendants are also charged with forging an agreement to kill the hostages, if necessary, to prevent their escape or rescue.

The indictment sheds new light on the international aspect of the FARC’s hostage-taking enterprise, and this crime in particular. For example, it alleges that the hostages were taken to a meeting in 2003 with several senior members of the FARC’s Estado Mayor Central, who told the Americans that their continued detention as U.S. citizens would assist the FARC’s goals by increasing international pressure on the government of Colombia to capitulate to the FARC’s demands. The FARC published communiques articulating their political demands on the Internet, in Spanish and English, to be read in the United States and, in 2003, released a proof of life video articulating their demands to Colombian and American media outlets.

The indictment also alleges that the defendants transported the hostages, at times, outside Colombia and into the Republic of Venezuela, in order to prevent the Colombian police and military from rescuing the hostages.

Four of the defendants in today’s indictment, Carlos Alberto Garcia, also known as “Oscar Montero” and “El Paisa,” Juan Carlos Reina Chica, also known as “Farid,” Jaime Cortes Mejia, also known as “Davison,” and Carlos Arturo Cespedes Tovar, also known as “Uriel,”are charged with murder of a U.S. national outside the United States, for their involvement in the kidnapping when Thomas Janis was shot in the back of the head with an assault rifle by FARC guerrillas. The indictment also alleges that “El Paisa” gave the order to shoot at the disabled plane as it was attempting to land.

Defendant Tanja Nijmeijer gained notoriety in recent years in Colombia, after her personal journal was recovered in a Colombian military raid in 2007, and excerpts of a video interview of her were released to the international press in 2010. On the recently-released video, Nijmeijer describes how she first learned about Colombia’s guerrilla war when she was still a student at the University of Groningen in the Netherlands. She describes how she helped the FARC as an operative in Bogota before eventually joining the group as an armed insurgent in November, 2002. Nijmeijer states on the video that she will be a “guerrilla until we are victorious or until we die, and there’s no turning back.”

Today’s charging document represents the fifth indictment issued in the District of Columbia against various FARC members involved in the kidnappings.

In 2005, the Republic of Colombia extradited Juvenal Ovidio Ricardo Palmera Pineda, also known as Simon Trinidad, to the United States in this case. He was subsequently convicted at a jury trial of conspiracy to commit hostage taking, and is now serving a 60-year sentence in federal prison. Chief Judge Royce C. Lamberth, who sentenced defendant Trinidad in 2008, called the crime an act of terrorism that was heinous, barbaric, and “against the law of all civilized nations.” The Colombian Supreme Court declined to extradite three other conspirators who were charged with this hostage-taking case in 2007 and 2008, and four other conspirators who were charged in 2003 have been killed or died in Colombian military operations in recent years.

Two of the defendants in today’s indictment – Carlos Alberto Garcia, aka El Paisa, and Jose Ignacio Gonzalez Perdomo, aka Alfredo Arenas – were charged previously in an indictment returned in the District of Columbia in 2003, shortly after the three Americans were taken hostage. Today’s indictment re-files each of those charges and adds a new homicide count against El Paisa. Today’s indictment also adds a new weapons charge and an additional material support charge against both men.

The U.S. government, through the Rewards for Justice Program of the Department of State, is offering a reward of up to $5 million for information leading to the apprehension or conviction of any FARC commanders involved in the hostage taking of Keith Stansell, Thomas Howes and Marc Gonsalves, and the murder of Thomas Janis. The Department of State’s Rewards for Justice Program has been employed worldwide to fight terrorism. Since the program’s inception in 1984, the United States has paid more than $77 million to more than 50 persons who provided credible information that led to the apprehension of individuals or prevented acts of international terrorism.

USAO-DC FARC Indictment (Dec 14 2010).pdf


nationalsecuritylaw upcoming event: “Teaching IHL Workshop” (Feb. 25-26 at Emory, co-sponsored by ICRC and the IHL Clinic at Emory Law)

December 9, 2010

* upcoming event: "Teaching IHL Workshop" (Feb. 25-26 at Emory, co-sponsored by ICRC and the IHL Clinic at Emory Law)

Teaching International Humanitarian Law Workshop
On February 25-26, 2011, the International Humanitarian Law Clinic at Emory University Law School and the International Committee of the Red Cross (ICRC) will convene the semi-annual Teaching International Humanitarian Law (IHL) Workshop in Atlanta. The Workshop is targeted at law professors in the United States and Canada interested in teaching an IHL course for the first time (otherwise known as the Law of Armed Conflict), integrating IHL modules into their current courses and/or rethinking their current teaching of this important subject. Topics covered will include: Defining the scope and content of an IHL class; Exploring the intersection between international human rights law, international humanitarian law, and international criminal law; Incorporating IHL modules into the teaching of classes such as public international law, national security law, immigration law, constitutional law, administrative law and more; Identifying strategies for developing curricula, responding to current events, and gaining support from school administrations for the teaching of IHL. The Workshop provides an opportunity for law faculty to think creatively about their teaching of IHL and network with others to support and expand their teaching of the topics. The cost of the two-day seminar is $250 per person and includes breakfast and lunch for both days, dinner Friday night, as well as all materials.

Contact: Laurie Blank, Director of Emory’s IHL Clinic – lblank

To register, please visit: http://www.law.emory.edu/centers-clinics/international-humanitarian-law-clinic/teaching-ihl-workshop.html

The ICRC – working to protect and assist people affected by armed conflict and other situations of violence. Find out more: www.icrc.org


nationalsecuritylaw AG Letter to Congress Opposing GTMO-Transfer Legislation

December 9, 2010

* Letter from Attorney General Holder to Senators Reid and McConnell regarding GTMO-transfer language in the Continuing Resolution

The letter is attached, and full text appears below

December 9, 2010

The Honorable Harry Reid

Majority Leader

United States Senate

Washington, DC 20510

The Honorable Mitch McConnell

Minority Leader

United States Senate

Washington, DC 20510

Dear Senators Reid and McConnell:

I write in opposition to Section 1116 of the proposed 2011 Full-Year Continuing Appropriations Act, which would prohibit the use of any funds to transfer detainees from the detention facility in Guantanamo Bay, Cuba, to the United States for any purpose. This provision goes well beyond existing law and would unwisely restrict the ability of the Executive branch to prosecute alleged terrorists in Federal courts or military commissions in the United States as well as its ability to incarcerate those convicted in such tribunals.

In order to protect the American people as effectively as possible, we must be in a position to use every lawful instrument of national power to ensure that terrorists are brought to justice and can no longer threaten American lives. As reflected in the President’s National Archives speech in May 2009, he, as Commander-in-Chief, has determined that prosecutions of alleged terrorists in Article III courts for the criminal terrorism offenses Congress has enacted—a powerful and well-established tool that has been used successfully in hundreds of cases—should be available in this effort to protect the nation.

Section 1116 is an extreme and risky encroachment on the authority of the Executive branch to determine when and where to prosecute terrorist suspects. Such decisions should be based on the facts and circumstances of each case and the overall national security interests of the United States. Section 1116 would undermine my ability as Attorney General to prosecute cases in Article III courts, thereby taking away one of our most potent weapons in the fight against terrorism.

It would therefore be unwise, and would set a dangerous precedent with serious implications for the impartial administration of justice, for Congress to restrict the discretion of the Executive branch to prosecute terrorists in these venues. The exercise of prosecutorial discretion has always been and must remain an Executive branch function.

We have been unable to identify any parallel to Section 1116 in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes. It would be a mistake to tie the hands of the President and his national security advisers now.

For these reasons, I urge you to remove Section 1116 from the bill or from any other appropriations bill that the Senate may consider.

Sincerely,

Eric H. Holder, Jr.

Attorney General

AG CR Letter 12-9-10.pdf


nationalsecuritylaw United States v. Martinez (D. Maryland) (Dec. 8, 2010)

December 8, 2010

* United States v. Martinez (D. Maryland) (Dec. 8, 2010) (would-be-bomber caught in a sting)

Well, this no doubt will contribute the burgeoning conversation about the pros and cons of sting operations. Complaint attached, press release excerpts follow below.

BALTIMORE – Antonio Martinez, aka Muhammad Hussain, age 21, of Baltimore, a U.S. citizen, was charged by criminal complaint today with attempting to murder federal officers and employees and attempted use of a weapon of mass destruction against federal property, in connection with a scheme to attack an Armed Forces recruiting station in Catonsville, Maryland. Martinez was arrested this morning after he attempted to remotely detonate what he believed to be explosives in a vehicle parked in the Armed Forces recruiting station parking lot.

U.S. Attorney Rod J. Rosenstein stated, “First, there was no actual danger because the people Mr. Martinez asked to help carry out his attack actually were working with the FBI. Second, every person Mr. Martinez asked to join in his scheme either declined to participate, tried to talk him out of it or reported him to the FBI, and there is no evidence that Mr. Martinez received direction or support from any other person. Third, undercover investigations are pursued only when supervisory law enforcement agents and prosecutors conclude that there is a serious risk that cannot be ignored. I am grateful to the FBI for the care it takes to evaluate all credible allegations of terrorist threats and to investigate people who threaten violence.”

The affidavit filed in support of the criminal complaint alleges that on Sept. 29, 2010, Martinez publicly posted on his Facebook account a statement calling for violence to stop the oppression of Muslims, and that on Oct. 1, 2010, he publicly posted a message stating that he hates any person who opposes Allah and his prophet.

On Oct. 8, 2010, an FBI confidential source (CS) brought these public postings to the attention of the FBI. The affidavit alleges that on Oct. 10, 2010, in response to these postings, the CS began communicating with Martinez through Facebook. The affidavit alleges that during Martinez’ discussions with the CS over Martinez’ Facebook page, Martinez wrote that he wanted to go to Pakistan or Afghanistan, that it was his dream to be among the ranks of the mujahideen, and that he hoped Allah would open a door for him because all he thinks about is jihad. The CS provided copies of the communications to the FBI.

After learning from the CS that Martinez was seeking to attack and kill military personnel, the FBI recorded a series of conversations between Martinez and the CS. During the conversations, Martinez identified his target as the Armed Forces recruiting station on Route 40 in Catonsville, Maryland.

The affidavit alleges that during the undercover operation, Martinez told the CS about five persons he believed would join in the operation. Martinez allegedly attempted to recruit at least three of those people to join in the operation, including an individual whom he said had the ability to obtain weapons. All three of them declined, and one of them expressly attempted to dissuade Martinez from committing jihad. Thereafter, Martinez allegedly agreed to meet the CS’s “Afghani brother,” an undercover FBI agent (UC), whom the CS represented would be interested in assisting in the operation. Martinez’ conversations with the UC were also recorded, and the FBI continuously monitored Martinez’ activities up to the time of his arrest.

On Nov. 4, 2010, Martinez introduced the CS to another person whom Martinez described as a potential recruit for his operation. The affidavit alleges that Martinez spoke to the person about his plans and the person refused to participate, telling Martinez that what he wanted to do was wrong ideologically, would cause harm to Muslims.

On Nov. 16, 2010, the CS introduced Martinez to the UC. Martinez allegedly told the UC about his goal to become a martyr and his desire to attack the Armed Forces recruiting center on Route 40 soon. According to the affidavit, the UC and the CS repeatedly asked Martinez if he was sure that this was the right path for him and told Martinez it was OK if he did not want to go through with the operation. Each time, the affidavit alleges that Martinez stated his intention to go forward with the plan.

The affidavit alleges that Martinez and the CS met again on Dec. 2 to look at the parking area around the recruiting center. Martinez allegedly drew a map detailing where the vehicle containing the bomb should be parked, which he gave to the CS for the UC. On Dec. 4, 2010, Martinez and the CS spoke over the phone. The CS told Martinez that he wanted to make sure that Martinez was not doing this because he felt “like someone pushing you.” Martinez replied, “I came to you about this, brother.”

According to the affidavit, on Dec. 7, 2010, Martinez met with the UC and CS to finalize plans for using a vehicle bomb to attack the Armed Services recruiting center. The UC allegedly showed Martinez the device that would activate the bomb and explained to him how to use it. The UC also showed Martinez the components for the bomb that were in the back of the SUV. According to the affidavit, Martinez pulled out his map of the recruiting center and told the UC where he believed it was best to park the SUV the next morning. It was agreed that all three men would drive separate vehicles, and the CS would pick up Martinez after the SUV was parked at the center. Martinez and the CHS would then drive to a vantage point where Martinez would detonate the bomb. The parties agreed that after the operation was over, they would not meet until Friday to arrange their getaway.

On the morning of Dec. 8, 2010, the affidavit alleges that Martinez met as planned with the UC and the CHS. Martinez was observed by surveillance agents inspecting the components of the bomb in the back of the SUV. It appeared that he was arming the device as instructed by the UC the day before. Martinez then drove the SUV to the recruiting center, parked in front of the building and left the area with the CS. Martinez and the CS drove to a vantage point near the recruiting center, where Martinez allegedly attempted to detonate the device, which was, in fact, an inert bomb. Martinez was immediately placed under arrest.

Martinez faces a maximum sentence of 20 years in prison for attempting to murder federal officers and employees, and life in prison for attempted use of a weapon of mass destruction against federal property.

MartinezAntonioCriminalComplaint.pdf