This blog post was written by a former co-worker of mine, Kathy Manley. Kathy works for one of the best criminal defense attorneys around, Terry Kindlon. She, herself is a force to be reckoned with. Here is the first of what I hope are many blogs to come.
I have this client, Yassin Aref, who is innocent but was targeted by the FBI because he was an imam from Iraq (even though he was a Kurd whose village had been destroyed by Saddam Hussein) who spoke out in support of Palestinian rights and against the US war in Iraq (even though he originally supported it to get rid of Saddam). Because the FBI was suspicious of him, they decided to preemptively prosecute him. (According to the prosecutor at a press conference after the sentencing, “our investigation was concerned with what he was gonna do here and in order to preempt anything else, we decided to take the steps we did take.”)
So there was a sting operation in 2004 and Yassin was tricked by an FBI informant into witnessing a loan (to his codefendant) which was supposed to be explained to him to constitute money laundering of the sale of a shoulder fired missile to a terrorist group. Except that it wasn’t explained, and he never saw the (fake) missile, was never told the code word for it, and even told the informant he could not support the group (JEM) that the informant claimed to be working for. If it sounds complicated, well, I think that’s the way the FBI wanted it. After all, it was their little theater piece, played out with a backdrop of post-911 fear.
They tried to keep him locked up pending trial by claiming that he was a “terrorist commander,” because the Arabic word for “commander” appeared next to his name in a notebook the military found in northern Iraq. But when the defense demanded the notebook page, and the judge ordered it provided, we got a letter saying, “oh, sorry, the word doesn’t mean ‘commander’ after all; it means ‘brother,’ and, um, it’s not actually in Arabic but Kurdish.” (In fact the word was “kak,” a respectful term meaning brother or mister, and it is one of the most common words in the Kurdish language.) The prosecution argued this didn’t matter but the judge ordered Yassin released on bond pending trial. A few weeks later, the government decided to invoke CIPA, the Classified Information Procedures Act, and that was the last we ever saw of any of this “evidence.” After that it was all given to the judge but not to us. Even though Terry, the lead trial attorney, got a security clearance to review the evidence, it was never shown to him. It was said (by the prosecution and the court) that Terry didn’t “need to know,” even though this evidence shaped the case and led to many of the judge’s decisions, some of which were fully classified.
Maybe the worst thing about all this classified “evidence” (which we could never challenge and much of which we knew was related to illegal warrantless wiretapping, since it was reported in the NYT that Yassin had been subjected to this program) was that it led the judge to tell the jury that “the government had good and valid reasons for targeting Yassin Aref.” The result was that even though Yassin was acquitted on every count until the last ones (based on the last conversation with the informant, where he was not provided with any new information) the jury was afraid to acquit him entirely, and he was convicted on those last few counts. Because of the way the FBI had crafted the sting (“sentencing entrapment”) the bottom of the sentencing guidelines range was 30 years, but because of huge community support, Yassin and his co-defendant were each sentenced to 15 years in March, 2007.
I wrote the appeal, and I swear that any one of those ten issues (it was a long a complex case) would have meant reversal in any normal case. But the Second Circuit judges were also shown the classified evidence that Terry didn’t “need to know” (so we couldn’t challenge it), and DOJ even sent a super secret prosecutor from DC to give a super secret argument to the appeal panel, one which the Albany prosecutor wasn’t even privy to. It was really insane – we always felt like we were fighting with blindfolds on, on ever-changing but always hostile terrain. Sure enough, the appeal was denied in a very short opinion which felt like a kick in the gut. They even said they couldn’t reach the warrantless wiretapping issue because the NYT report that Yassin had been wiretapped (in addition to trial evidence at a side bar where the FBI case agent made it clear that there was 24 hour “non-physical” surveillance of Yassin) wasn’t a “colorable basis” from which to suspect that he was wiretapped! And, of course, the petition for en banc review was denied. And the petition for certiorari to the Supreme Court was denied. A 2255 motion is now pending but has very little chance of success.
Meanwhile, many people in Albany were outraged by this case, and the Muslim Solidarity Committee (MSC) was formed in 2006. Yassin wrote a book about his life, “Son of Mountains” which sold about 800 copies. Ellie Bernstein made an award-winning movie about the case called “Waiting for Mercy.” The president of the mosque where Yassin was imam, Shamshad Ahmad, wrote an excellent book about it, called “Rounded Up.” People were not forgetting about this, and the MSC continues to support the families of the two imprisoned men, who have 10 young children between them.
With the help of retired attorney and good friend Steve Downs (who also inspired Yassin and Shamshad to write their books, and has kept me [semi] sane all these years), we discovered that there were many similar cases. Cases involving what Steve termed preemptive prosecution, where Muslims were targeted, often in sting operations, because someone was suspicious of them or their perceived ideas. We learned of Dick Cheney’s 1% solution – that if there was a 1% chance that someone (a Muslim) might support terrorism, it was necessary to take action against that person, via deportation, prosecution, etc. We formed Project Salam to research these cases, explore the connections between them and reach out to people impacted by them.
Last week, on April 5, 2010, thanks to the amazing Lynne Jackson and many others, we got a resolution passed by the Albany Common Council (the city government of Albany). The resolution, the first of its kind, asks the Department of Justice to investigate cases where it appears that Muslims were “preemptively prosecuted” and asks DOJ to follow their own Inspector General’s Report of July, 2009, which recommends a review of terrorism cases involving classified evidence, because there was no mechanism for providing exculpatory evidence to the defense in these cases.
Many people spoke passionately to the Common Council in support of the resolution –mother, daughters and other family members who Lynne had convinced to speak out came from the Fort Dix, NJ case (where several young men entrapped by two informants were sentenced to life plus thirty years) and the Newburgh, NY case (where the same sleazebag informant used in the Albany case entrapped some poor, mentally ill, drug-addicted young men with promises of money, jobs, and drugs – that case is still pending trial) and of course there were many people related to the Albany case.
The Common Council members were clearly very moved by all the testimony, especially from the children and other family members who traveled to make this plea. The President, Carolyn McLaughlin, made a very compassionate statement saying this was one of the most amazing public hearings she had ever witnessed in 13 years, and thanking everyone for coming and bringing their emotions. She personally thanked each child who spoke and said their incarcerated fathers would be very proud of them. The Council had earlier decided in a caucus not to vote on the resolution that night, and to put it off for a couple weeks or longer. But they changed their minds after hearing everyone speak.
Then many council members made impassioned speeches in favor of the resolution. That was amazing too, as many of them (who we weren’t even sure would support this in the beginning) discussed their own backgrounds. Anton Konev, a Russian immigrant, talked about his relatives having been sent to Siberia and how his grandmother was still afraid to discuss politics on the phone – he said he was afraid something like Stalinism was being repeated in the US. Jimmy Sano alluded to the internment of Japanese Americans and said when are they going to apologize to the Italians. Lester Freeman (who is African-American) spoke of the racism endured by his grandparents and spoke very passionately in support of Muslims, especially the Muslim store owners in his ward. Of course Dominick Calsolaro, Barbara Smith, and Cathy Fahey (who were all co-sponsors) made great statements as well, as did Michael O’Brien, who was the one who had originally wanted to put it off, but then you could see him crying during the testimony… Finally it passed with 10 members voting yes, no one voting no, and 4 members voting “present.”
We are hoping that other towns follow in the footseps of our capital city and pass similar resolutions, and also heed the words of Benjamin Franklin: They who would give up an essential liberty for temporary security, deserve neither liberty or security.
