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TAR G E T E D AN D E NT R AP P E D

ABOUT THE AUTHORS

The Center for Human Rights and Global Justice (CHRGJ) at New York University School
of Law was established in 2002 to bring together the law school’s teaching, research, clinical,
internship, and publishing activities around issues of international human rights law. Through its
litigation, advocacy, and research work, CHRGJ plays a critical role in identifying, denouncing,
and fighting human rights abuses in several key areas of focus, including: Business and Human
Rights; Economic, Social and Cultural Rights; Caste Discrimination; Human Rights and CounterTerrorism; Extrajudicial Executions; and Transitional Justice. Philip Alston and Ryan Goodman
are the Center’s Faculty Chairs; Smita Narula and Margaret Satterthwaite are Faculty Directors;
Jayne Huckerby is Research Director; and Veerle Opgenhaffen is Senior Program Director.

The International Human Rights Clinic (IHRC) at New York University School of Law provides
high quality, professional human rights lawyering services to community-based organizations,
nongovernmental human rights organizations, and intergovernmental human rights experts and
bodies. The Clinic partners with groups based in the United States and abroad. Working
as researchers, legal advisers, and advocacy partners, Clinic students work side-by-side with
human rights advocates from around the world. The Clinic is directed by Professor Smita Narula
of the NYU faculty; Amna Akbar is Senior Research Scholar and Advocacy Fellow; and Susan
Hodges is Clinic Administrator.

All publications and statements of the CHRGJ can be found at its website: www.chrgj.org.

This Report should be cited as: Center for Human Rights and Global Justice, Targeted and
Entrapped: Manufacturing the “Homegrown Threat” in the United States (New York: NYU
School of Law, 2011).

© NYU School of Law Center for Human Rights and Global Justice

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TAR G E T E D AN D E NT R AP P E D

ACKNOWLEDGEMENTS

The International Human Rights Clinic (IHRC)/Center for Human Rights and Global Justice (CHRGJ)
at New York University (NYU) School of Law is enormously grateful to the following individuals for their
contributions in the preparation of this Report. Names are listed under each heading in alphabetical
order.
Project Directors
Amna Akbar, Senior Research Scholar & Advocacy Fellow, CHRGJ/IHRC
Smita Narula, Faculty Director, CHRGJ/IHRC
Authors and Researchers
Amna Akbar, CHRGJ/IHRC
Christine Chiu, IHRC
Smita Narula, CHRGJ/IHRC
Times Wang, IHRC
Review and Editorial
Petra Bartosiewicz
Veena Dubal, Asian Law Caucus (ALC)
Aisha Ghani
Faisal Hashmi, Muslim Justice Initiative (MJI)
Jayne Huckerby, Research Director, CHRGJ
Veerle Opgenhaffen, Senior Program Director, CHRGJ
Jennifer Reiss, Associate, CHRGJ
Additional Research, Writing, Production, or Other Assistance
Susan Hodges, Clinic Administrator, IHRC
Kibum Kim, IHRC
Audrey Watne, Program Assistant, CHRGJ
ART DIRECTION
Joe Namy
COVER PHOTO
Lyric R. Cabral
Photos
Lyric R. Cabral
S. Nadia Hussain
Desis Rising Up and Moving (DRUM)

TAR G E T E D AN D E NT R AP P E D

CHRGJ thanks the following individuals for their insights and contributions to this Project: Mike German
(ACLU); Faisal Hashmi (MJI); Arun Kundnani (Open Society Institute); Veena Dubal (ALC); Steven Downs,
Kathy Manley, Lynne Jackson and Project SALAM; Lyric R. Cabral; Aisha Ghani; Petra Bartosiewicz;
Professor Jeanne Theoharis, Brooklyn College; Monami Maulik and the staff at DRUM; Professor Peter
Erlinder, William Mitchell College of Law, and the National Coalition to Protect Civil Freedoms; Jed
Eisenstein; Joe Namy; Anjali Kamat; Ayesha Hoda; Hesham el-Meligy; Emily Berman (Brennan Center
for Justice, NYU School of Law); Beena Ahmad; Vyoma Jha.

Special thanks to Alicia McWilliams, Elizabeth Williams, Lord McWilliams, Zurata Duka, Burim Duka, Ferik
Duka, Lejla Duka, Shahina Parveen, Saniya Siraj, and Lyric R. Cabral.

CHRGJ thanks the Security & Rights Collaborative, a Proteus Fund initiative, for its generous support
of this Project.

TAR G E T E D AN D E NT R AP P E D

GLOSSARY
CHRGJ
DIOG
DOJ
DOJ OIG

Center for Human Rights and Global Justice
Domestic Investigative Operational Guidelines
Department of Justice
Department of Justice, Office of the Inspector
General

DRUM

Desis Rising Up and Moving

ECtHR

European Court of Human Rights

FBI

Federal Bureau of Investigation

ICCPR

International Covenant on Civil and Political
Rights

ICERD

International Convention on the Elimination of
All Forms of Racial Discrimination

JTTF
Ashcroft Guidelines

Joint Terrorism Task Force
Attorney General’s Guidelines on FBI
Undercover Operations (2002)

Gonzales Guidelines

Attorney General’s Guidelines Regarding the
Use of FBI Confidential Human Sources (2006)

Mukasey Guidelines

Attorney General’s Guidelines for Domestic FBI
Operations (2008)

NYPD

New York City Police Department

TAR G E T E D AN D E NT R AP P E D

© Lyric R. Cabral. Elizabeth McWilliams, mother of David Williams, prepares macaroni salad
at her home in Newburgh, NY.

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TAR G E T E D AN D E NT R AP P E D

CONTENTS
Executive Summary 2
I. The context 6
A. Law enforcement Trends 6
1. Conflating Muslims with Terrorists and Terrorism 6
2. The Myth of “Radicalization” 7
3. “Preventative” Policing 8
4. Permissive Legal Frameworks 8
B. The Domestic Legal Framework 9
1. The Mukasey Guidelines 9
2. Informants Under the FBI Guidelines 11
3. The Entrapment Defense 15

Text Boxes
The NYPD and the Handschu Guidelines 12
Convictions Rely on Prejudicial Evidence 16
Entrapment in other Jurisdictions: The U.K. and Canada 18
II. The Cases 19
A. David Williams – “The Newburgh Four” (Newburgh, NY) 21
1. The Family 21
2. The Case 21
3. The Impacts 23
B. Eljvir, Dritan and Shain Duka – “The Fort Dix Five” (Cherry Hill, NJ) 26
1. The Family 26
2. The Case 26
3. The Impacts 28
C. SHAHAWAR MATIN SIRAJ (BAY RIDGE, NY) 33
1. The Family 33
2. The Case 33
3. The Impacts 36
D. Patterns 38
III. Human Rights Implications and Obligations 39
A. Right to a Fair Trial 39
B. Right to Non-Discrimination 40
C. Rights to freedom of religion and expression 43
IV. Recommendations and Concluding Observations 45

TAR G E T E D AN D E NT R AP P E D

Wake up, open your eyes, look around you, see how
this world has changed… At least take 5 minutes to
look into these cases, and research, and look for
real proof.

Lejla Duka, age 13, daughter of Dritan
Duka, defendant in the “Fort Dix Five” case

Newburgh is an extremely impoverished town.
How much money did they spend on this whole
production? They need to be investing in our
communities for the future, not spending millions
of dollars on a fake case that makes nobody safer.

Alicia McWilliams, aunt of David Williams,
defendant in the “Newburgh Four” case

There are many stories that overlap. Many men
in our communities have been targeted, and the
women and children are left out in the cold.

Shahina Parveen, mother of defendant
Shahawar Matin Siraj

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Executive Summary

Since September 11, 2001, the U.S.
government has targeted1 Muslims in the
United States by sending paid, untrained
informants2 into mosques and Muslim
communities. This practice has led to the
prosecution of more than 200 individuals in
terrorism-related cases.3 The government
has touted these cases as successes in the
so-called war against terrorism.4 However,
in recent years, former Federal Bureau of
Investigation (FBI) agents,5 local lawmakers,6
the media, the public, and community-based
groups7 have begun questioning the
legitimacy and efficacy of this practice,
alleging that—in many instances—this type
of policing, and the resulting prosecutions,
constitute entrapment.8

information to law enforcement, creating a
dangerous incentive structure.10
In the cases this Report examines, the
government’s informants held themselves out
as Muslims and looked in particular to incite
other Muslims to commit acts of violence.
The government’s informants introduced
and aggressively pushed ideas about violent
jihad and, moreover, actually encouraged
the defendants to believe it was their duty to
take action against the United States. In two
of the three cases, the government relied
on the defendants’ vulnerabilities—poverty
and youth, for example—in its inducement
methods. In all three cases, the government
selected or encouraged the proposed
locations that the defendants would later be
accused of targeting. In all three cases, the
government also provided the defendants
with, or encouraged the defendants to
acquire, material evidence, such as weaponry
or violent videos, which would later be used
to convict them.

This Report examines three high-profile
terrorism prosecutions in which government
informants played a critical role in instigating
and constructing the plots that were then
prosecuted. In all three cases, the FBI or New
York City Police Department (NYPD) sent
paid informants into Muslim communities or
families without any particularized suspicion
of criminal activity. Informants pose a
particular set of problems given they work
on behalf of law enforcement but are not
trained as law enforcement.9 Moreover,
they often work for a government-conferred
benefit—say, a reduction in a preexisting
criminal sentence or a change in immigration
status—in addition to fees for providing useful

The government played a significant role
in instigating and devising the three plots
featured in this Report—plots the government
then “foiled” and charged the defendants
with. The defendants in these cases were all
convicted and are facing prison sentences
of 25 years to life. These prosecutions—and
others that similarly rely on the abusive use of
informants—are central to the government’s

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TAR G E T E D AN D E NT R AP P E D

claim that the country faces a “homegrown
threat” of terrorism. Serious questions have
been raised about the government’s role
in each of these cases, as well as around
the set of laws that have facilitated these
practices. They also raise fundamental
human rights concerns.
Part I.A. of this Report considers four
trends that have enabled the aggressive
and widespread use of informants in Muslim
communities: (1) the conflation of Muslims
with terrorism and terrorists; (2) the U.S.
government’s adoption of unsupported
theories
about
“radicalization”
and
“homegrown terrorism” in American Muslim11
communities; (3) a shift toward a preventative
model of policing and prosecuting terrorism,
which seeks to intervene prior to any plan to
commit a particular crime; and (4) the lack
of accountability and transparency of law
enforcement activities. Part I.B. assesses the
domestic legal framework governing the use
of informants in undercover investigations,
including the entrapment defense. Drawing
on media accounts, court documents, and
interviews, Part II then examines three
high-profile terrorism prosecutions, looking
closely at the government’s practices in
instigating and constructing the plot through
informants, and the impacts the prosecutions
have had on the families of the defendants.
Part III evaluates the human rights impacts
of the practices and policies detailed herein

© Lyric R. Cabral. Alicia McWilliams, reads a letter from her
nephew David Williams. The letter reads, “Dear Aunt Alicia. I
love you and I miss you. It warms me to know that every time
I step into that court room our eyes meet.”

and the corresponding obligations of the
U.S. government to respect, protect, and
fulfill these human rights. Part IV concludes
with policy recommendations.
This Report is grounded in consideration of
the government’s prosecutions against the
“Newburgh Four”12 with a focus on defendant
David Williams; the “Fort Dix Five”13 with a
focus on defendants Eljvir, Dritan, and Shain
Duka; and the case of Shahawar Matin Siraj.14
Family members of David, Eljvir, Dritan,
Shain, and Shahawar were interviewed
for this Report, which builds on the Center
for Human Rights and Global Justice’s
(CHRGJ) longstanding work documenting
the impact of U.S. counterterrorism policies
on Muslim, Arab, Middle Eastern, and South
Asian communities.15 We also interviewed
and consulted with experts, journalists, and

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TAR G E T E D AN D E NT R AP P E D

an end to criminalizing Muslim communities.
Not only do these practices fail to enhance
public safety goals, but they pose intolerable
threats to basic human rights across the
country.

community leaders studying these issues,
and drew on court documents and media
accounts.
The experiences of the families who were
interviewed for this Report demonstrate
the profound toll government policies are
taking on Muslim communities and families.
Counterterrorism law-enforcement policies
and practices are undermining U.S. human
rights obligations to guarantee the rights
to nondiscrimination; a fair trial; freedom of
religion expression and opinion; as well as
the right to an effective remedy when rights
violations take place.

To abide by these international human
rights obligations, CHRGJ urges the U.S.
government to act immediately to implement
the following recommendations with respect
to law enforcement and counterterrorism
investigations, particularly those that involve
the use of extensive surveillance and paid
informants without particularized suspicion
of criminal activity:
 The U.S. government should reject
“radicalization” theories that threaten the
rights to freedom of religion, opinion, and
expression, and should put an end to the
preventative policing and prosecution
methods that rely on such theories.18

The families have been outspoken about
the injustice of these tactics and the
prosecutions that they have spawned. A
growing chorus of commentators, community
members, scholars, and policy experts, is
beginning to challenge the legitimacy of
the government’s practices, and the notions
that these prosecutions substantiate a
“homegrown threat” or provide any securityenhancing benefits.16

 Congress should hold hearings on the
impact of counterterrorism policies
on Muslim, Arab, South Asian, and
Middle Eastern communities in the
United States. These hearings should
include consideration of current intelligence-gathering tactics and the
use of informants in counterterrorism
investigations.

The cases highlighted in this Report do not
stand alone. A number of cases around the
country have been met with similar concerns,
which further suggests that the practices
highlighted here are illustrative of similar
law enforcement activities targeting Muslim
communities around the country.17 As this
Report argues, the U.S. government must put

 Congress should pass the End Racial
Profiling Act, proposed federal legislation
to ban racial profiling by law enforcement.

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TAR G E T E D AN D E NT R AP P E D

© Lyric R. Cabral. Zurata Duka holds a photo of her son Dritan Duka.

stage.
Further, the new guidelines
should ensure that:

 The Department of Justice (DOJ) should
revise its own June 2003 Federal
Guidance on Racial Profiling to eliminate
the border and national security loophole,
to include a ban on profiling based on
religion and ethnic origin, and to ensure
that the guidance is enforceable.

…… The FBI and other law enforcement
agencies do not open investigations,
including by using informants, against
individuals absent particularized
suspicion of wrongdoing.

 The DOJ should open an investigation
into all terrorism-related cases involving
the use of an informant since September
11, 2001, with a view towards examining
oversight and actions of informants,
the circumstances under which they
are deployed, the types of information
they gather, and their role in instigating
terrorist plots.

…… The FBI and other law enforcement
agencies are not allowed to target
individuals and communities through
surveillance, informants, or other
information-gathering
techniques
based on race, religion, or national
origin, or political and religious
statements or beliefs.
…… The FBI is explicitly and consistently
prohibited from using informants to
engage in entrapment or inducement
to commit crimes.

 Attorney General Holder should issue
new guidelines to replace the Mukasey
Guidelines for Domestic FBI Operations
(2008), the 2006 Gonzales Guidelines
on Confidential Human Sources, and
the 2002 Ashcroft Guidelines on FBI
Undercover Operations.
These new
guidelines should eliminate authorization
for the pre-investigation “assessment”

 The NYPD should revise its guidelines
to only allow for investigations when
there is an articulable and reasonable
suspicion of criminal activity.

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I. The Context

1. Conflating Muslims with Terrorists
and Terrorism

The practices and policies that are the focus
of this Report are, at their core, about the
targeting of Muslims as “potential threats”
to the United States. This section talks first
about law enforcement and cultural trends
facilitating the prosecutions featured in
this Report; and secondly about the legal
frameworks governing the FBI and NYPD
in their law enforcement practices, including
the use of informants and the low thresholds
required to commence investigations.

The first problematic contributing factor to the
current situation is the conflation of Muslims
with terrorists and terrorism. The popular
notion of terrorism has become inextricably
linked to Muslims and Islam, due in no
small part to a host of government policies
targeting Muslims as potential terrorists.22
There is also evidence to suggest that many
law enforcement agencies are trained with
materials that construct Muslims as potential
terrorists.23

A. Law Enforcement Trends
The U.S. government’s focus on Muslims in
counterterrorism operations appears to stem
from a series of assumptions about Muslims
and terrorism, including the following: that
Muslims are more likely to become terrorists;
that American Muslims are increasingly being
“radicalized” and compelled into committing
violence in the name of Islam; and that
counterterrorism policies should focus on
identifying individuals who hold certain
ideologies and exhibit certain behaviors
as indicative of “radicalization” in order to
stop them before they can act.19 These
assumptions, however, find no support in
empirical research. To the contrary, research
conducted by a variety of institutions suggests
the assumptions in the radicalization theory
Worse still, government
are wrong.20
policies relying on these assumptions greatly
undermine fundamental human rights.21

Moreover, commentators have noted that
the government tends to use criminal
terrorism charges in cases involving Muslim
defendants charged with violent crimes,
but not against non-Muslims charged with
similar conduct.24 Yet, since September
11, 2001, there have been more instances
of politically-motivated violence in the U.S.
committed by non-Muslims than there have
been by individuals claiming to be motivated
by Islam.25
In addition, the construction of a terrorist
“Other” has conflated notions of race,
ethnicity, religion, national origin, gender,
and political views, effectively racializing
Islam, Muslims, and Muslim religious
practice as radically threatening to U.S.
national security interests.26 Muslim men
have been constructed as particularly

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TAR G E T E D AN D E NT R AP P E D

notion that “the path to terrorism has a fixed
trajectory and that each step of the process
has specific, identifiable markers.”34 Yet no
empirical, social scientific research supports
the notion of a “religious conveyer belt” that
predictably leads to terrorism. In fact, research
suggests that there is no such process that
can be identified with any confidence.35
Equally troubling, the so-called markers of
radicalization are over-determinate36 and
focused on Muslim religious practice in
fundamentally discriminatory ways.37

Dritan and Shain Duka, with Dritan’s children Idris, Yasmine,
and Xhebrail.

dangerous.27 “Muslim” and “Arab” are no
longer discrete signifiers of religion or race
but have been combined—by the media,
popular conceptions, and the government’s
own practices and policies—into a broader
category of “Muslim looking people.”28
Muslim cultural and religious practices
have also been marked in various ways as
indicators of potential terrorist criminality.29
In turn, law enforcement officers target those
who they perceive to look or act like Muslims
in terrorism investigations, surveillance, and
prosecutions.30

Nonetheless, the U.S. government has played
a role in nurturing the idea that “radicalization”
is an identifiable process. In February
2011, under the leadership of Senator Joe
Lieberman, the Homeland Security and
Governmental Affairs Committee issued a
report on the Fort Hood shooting, calling on
the National Security Council and Homeland
Security Council to develop “a comprehensive
national approach to countering homegrown
radicalization to violent Islamist extremism.”38
In March 2011, Representative Peter King
held a widely criticized Congressional
hearing, premised on the assertions that
American Muslims are “radicalizing” at an
increasing rate; that American Muslims are
not doing enough to counter this trend; and
that American Muslim communities are not
cooperating with law enforcement.39 The
only law enforcement witness called by
Representative King rejected the premise of
the hearing.40

2. The Myth of “Radicalization”
A second explanatory factor is the view
that American Muslims are increasingly
being “radicalized” into committing violence
in the name of Islam. The 2007 NYPD
report entitled “Radicalization in the West:
The Homegrown Threat” has been pivotal
in popularizing radicalization theories.31
Though the theories underlying the report
have been criticized as “thinly sourced”
and “reductionist,”32 they continue to enjoy
support at the highest levels of government.33
These theories are premised roughly on the

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4. Permissive Legal Frameworks

The King hearing is only the most recent
manifestation of the government’s adoption
of the radicalization theory. Elsewhere,
President Barack Obama, the FBI, the
Department of Homeland Security, and the
National Counterterrorism Center, have
all embraced the theory of radicalization.41

A fourth factor—examined in greater detail in
the next section—is the use of particular laws
and policies that facilitate the preventative
model of aggressive policing and
prosecution, combined with a concomitant
absence of legal or regulatory safeguards.46
The U.S. government has aggressively used
material support statutes, conspiracy or
attempt charges, or combinations thereof
in terrorism prosecutions, resulting in the
criminalization of a range of behaviors that
do not seem to be indicative of any intent
to commit a violent crime.47 At the same
time, the DOJ has expanded its powers and
relaxed longstanding safeguards against
rights abuses, including, but not limited to,
the relaxation of the Attorney General’s
regulations of the FBI.48 Moreover, the DOJ’s
guidance on racial profiling49 bans profiling
on the basis of race and ethnicity, but does
not explicitly ban profiling on the basis
of religion or national origin, and creates
loopholes for racial profiling in national
security and border security contexts.

3. “Preventative” Policing
A third interrelated factor is law
enforcement’s shift to a preventative
approach to counterterrorism, whereby the
government investigates individuals without
any evidence of individual wrongdoing.42
The preventative model assumes that
radicalization is as an identifiable process,
and suggests that it is desirable to investigate
and prosecute individuals while they are
still in the early stages of “radicalizing” so
that they will not develop into full-fledged
terrorists.43 Rather than focusing on the
policing of criminal activity, this approach
facilitates the criminalization of those who
“act Muslim,” either through their religious
practice, attendance at a mosque, or their
expression of political opinions critical of
U.S. foreign policy.44 The use of informants
appears to be a core feature of this model of
policing terrorism.45

These four factors and trends are mutually
reinforcing. Together, they help explain the
phenomenon that will be analyzed more
closely in this Report—namely, the targeted
and abusive use of paid informants in Muslim
communities.

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B. The Domestic Legal
Framework

The following section closely examines
the issue of informants by looking at the
domestic legal framework governing the use
of informants, to wit, the relevant FBI and
NYPD guidelines for such activities; and the
entrapment defense. As it will reveal, there
are almost no limits placed on when or how
law enforcement agencies use informants.

Since September 11, 2001, as the FBI has
settled into a dual role of an intelligence
gathering and law enforcement agency, its
authority to collect information has expanded,
and its focus, in the counterterrorism context,
has shifted to a preventative model.50 As a
result, the FBI seems to increasingly rely on
informants, undercover agents, and other
forms of surveillance to gather information
and, allegedly, to prevent terrorism. Serious
questions have been raised about the efficacy
and discriminatory nature of these practices,
which seem to target Muslim, Arab, South
Asian, and Middle Eastern communities
as well as activists critical of U.S. foreign
policy.51 In the last few years, the FBI’s use
of informants, cooperating witnesses, and
undercover agents in political and religious
spaces has come under increased scrutiny
and criticism.52

1. The Mukasey Guidelines
From World War II through to the 1970s, the
FBI conducted a series of covert domestic
operations aimed at various groups considered
to be antagonistic to the U.S. government,
including
through
the
oft-criticized
55
COINTELPRO program. As part of these
operations, the FBI systematically surveilled
and worked to undermine the “New Left,”
including individuals thought to be members
of the Communist Party, Black and women’s
liberation struggles, and other groups critical
The United
of the U.S. government.56
States Senate Select Committee to Study
Governmental Operations with Respect to
Intelligence Activities—also known as the
Church Committee—found that the FBI
relied on “secret informants . . . wiretaps,
microphone ‘bugs,’ surreptitious mail opening,
and break ins, [sweeping] in vast amounts of
information about the personal lives, views
and associations of American citizens”
and “conducted a sophisticated vigilante
operation aimed squarely at preventing

Informants pose a particular set of
problems given they work on behalf of law
enforcement but are not trained as law
enforcement.53 Moreover, they often work
for a government-conferred benefit—say, a
reduction in a preexisting criminal sentence
or change in immigration status—in addition
to fees for providing useful information to
law enforcement, creating a dangerous
incentive structure.54

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the exercise of First Amendment rights of
speech and association, on the theory that
preventing the growth of dangerous groups
and the propagation of dangerous ideas
would protect the national security and deter
violence.”57

authorize informants and other surveillance
techniques without any factual predicate
or nexus to suspected criminal conduct.61
Under these Guidelines, for instance, it is
permissible for the FBI to broadly instruct
informants to gather names, emails, and
phone numbers of particularly devout
mosque attendees, without any particular
nexus to suspected criminal activity.62

Against this background, in 1976, Attorney
General Edward Levi promulgated the
first Attorney General Guidelines.58 In the
words of Attorney General Levi, these
Guidelines “proceed from the proposition
that Government monitoring of individuals
or groups because they hold unpopular or
controversial political views is intolerable in
our society.”59 For the first time, the Attorney
General placed express limits on the FBI’s
investigative techniques in order to protect
against the types of abuses that marked
COINTELPRO.

More specifically, (1) the Guidelines authorize
the FBI to undertake “assessments”63 prior
to preliminary investigations, in situations
where there is no “information or . . .
allegation indicating” wrongdoing or a threat
to national security; (2) in this assessment
stage, the Guidelines permit the FBI to
use intrusive investigative techniques such
as “recruiting and tasking informants to
attend meetings or events surreptitiously”;
“questioning people or engaging them in
conversation while misrepresenting the
agent’s true identity”; and, “engaging in
definite physical surveillance of homes,
offices and individuals”; and (3) the
Guidelines “eliminat[e] or reduc[e] many of
the requirements for supervisory approval
of particular investigative techniques and
temporal limits on investigative activity.”64

As documented in a recent study by the
Brennan Center for Justice at NYU School
of Law, over the years, particularly after
September 11, 2001, Attorneys General
have steadily eroded the Guidelines.60
Attorney General Michael Mukasey’s 2008
Guidelines—currently in effect—reinforced
that trend, eviscerating the Guidelines
sufficiently as to bring us almost full circle to
a pre-Guidelines era.

The Guidelines are implemented by the
FBI’s Domestic Investigative Operational
Guidelines (DIOGs), which are available to
the public only in highly redacted form.65

The Mukasey Guidelines are profoundly
troubling in that they allow the FBI to

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FBI Domestic Investigations and Operations Guide, heavily redacted section on “Undisclosed Participants”

Although heavy redactions prevent a holistic
assessment of the DIOGs, it is clear that
the DIOGs allow for the FBI to engage in
investigative activity “based in part—or even
primarily” on “‘the exercise of First Amendment
rights or on the race, ethnicity, national origin
or religion.’ of their subject.”66 The DIOGs
also allow the FBI to collect “information
regarding ethnic and racial behaviors
‘reasonably believed to be associated with
a particular criminal or terrorist element of
an ethnic community’” and “to collect ‘the
locations of ethnic-oriented businesses and
other facilities’ (likely including religious
facilities such as mosques) because
‘members of certain terrorist organizations
live and operate primarily within a certain
concentrated community of the same
ethnicity.’”67

communities, rather than policing individuals
on the basis of particularized suspicion of
criminal activity.68
In tandem with the Guidelines and DIOGs,
the 2003 DOJ Guidance Regarding the
Use of Race by Federal Law Enforcement
Agencies69 bans profiling on the basis of
race and ethnicity, but does not explicitly ban
profiling on the basis of religion or national
origin. It also creates loopholes for racial
profiling in the national security and border
security contexts.

2. Informants Under the FBI
Guidelines
While the Mukasey Guidelines and DIOGs
allow the FBI to recruit informants and
place them within communities without
any suspicion of specific criminal activity,
they also authorize informants to engage
in activities that would otherwise be illegal,
and do not contain an unequivocal ban on
entrapment.70

The Guidelines and DIOGs work together
to authorize extensive surveillance, information-gathering, and “geo-mapping” of
Muslim communities, creating a troubling law
enforcement approach of targeting entire

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The NYPD and the Handschu Guidelines

Since September 11, 2001, the FBI, NYPD, and other law enforcement agencies
have increasingly directed their surveillance and investigation activities—including
the use of informants—at Muslim communities in an effort to identify would-be
terrorists. Although the targets may be different, these aggressive tactics are
not new. In the midst of COINTELPRO, the NYPD, like the FBI, infiltrated and
kept dossiers on individuals thought to be affiliated with the “New Left”—those
considered to be radical at that time.83
In 1971, a group of activists brought a class action in federal court against the
Mayor of the City of New York, its Police Commissioner, and the New York City
Police Department’s Public Security Section, formerly known as the Special
Services Division. The plaintiffs in Handschu v. Special Services Division
alleged that their constitutional rights had been violated by the Special Services
Division’s surveillance and other investigatory activities against them and their
organizations.84 In 1985, the court approved a settlement prohibiting the NYPD
from investigating political and religious organizations and groups unless there
was “specific information” that the group was linked to a crime that had been
committed or was about to be committed.85 The settlement also established a
system of record-keeping and procedures for approval of investigations by a
three-member body, called the Handschu Authority.86 The system set up a “paper
trail” enabling individuals to access information about whether they were under
investigation, what information had been gathered, and how it was gathered.87
The terms of the settlement came to be known as the “Handschu Guidelines.”
In September 2002, New York City Police Commissioner Ray Kelly moved to modify
the 1985 Handschu consent decree on the grounds that the guidelines did not
reflect our “more dangerous, constantly changing world, one with challenges and
threats that were never envisioned when the Handschu guidelines were written.”88
In February 2003, the court determined that the NYPD should be permitted to
modify the 1985 decree in a way that was consistent with the FBI Guidelines.89 In

12
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August 2003, the court approved the modified guidelines submitted by the NYPD,
opening the door to the same kind of abuses the original Handschu Guidelines
were designed to safeguard against.90 The revised guidelines provide substantially
fewer protections than the original Handschu Guidelines, and lower the substantive
threshold required for investigation.91 In fact, the revised guidelines explicitly state
in the preamble, “In the view of federal, state and local law enforcement agencies,
the prevention of future attacks requires the development of intelligence and the
investigation of potential terrorist activity before an unlawful act occurs.”92 The
revised guidelines allow the NYPD to initiate investigations based on speech
or expression protected by the First Amendment.93 There are no restrictions
placed on the use of informants except that their deployment must be authorized
by the Deputy Commissioner of the Intelligence Division.94 In fact, the revised
guidelines give enormous discretion to the Deputy Commissioner. The Deputy
Commissioner now has the authority to internally approve investigations and
investigatory techniques, rather than having to subject the decision to approval
from the quasi-independent Handschu Authority.95
In addition to the relaxation of Handschu Guidelines, the NYPD has grown in
size, scope, and resources since 2001. In 2002, Commissioner Kelly created
the Counterterrorism Bureau of the NYPD,96 which, in turn, participates in the
NYPD-FBI Joint Terrorism Task Force (JTTF),97 one of many JTTFs across the
country.98 Although the NYPD collaborates with the FBI through the JTTF,
it appears to have developed its own independent machinery for operating
counterterrorism investigations within New York and around the world, largely
without federal oversight.99 The NYPD has become a leading advocate for law
enforcement based on the flawed radicalization model.100

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The Mukasey Guidelines point to the
Attorney General’s Guidelines Regarding the
Use of FBI Confidential Human Sources—
promulgated in 2006 by then-Attorney
General Alberto Gonzales—for additional
guidance on the use of informants.71 Both
the Mukasey and Gonzales Guidelines
explicitly contemplate that informants will be
authorized to engage in illegal activity, with
limitations only on acts of violence and acts
that would be unlawful if performed by an
actual FBI agent.72

are only required to provide instructions on
entrapment “if applicable.”76 The Guidelines
do not, however, explain under what
conditions these instructions must be given.
In 2005, the DOJ Office of the Inspector
General (DOJ OIG) released a report77 on
the FBI’s compliance with, among other
things, the 2002 Ashcroft Guidelines on FBI
Undercover Operations.78 The Undercover
Operations Guidelines include a section
regarding entrapment.
The language
reflects the contours of the entrapment
defense—which will be explained in the
next section—and a concern about running
afoul of the doctrine in court. Though the
Undercover Operations Guidelines counsel
that entrapment should be “avoided,” they
provide a number of conditions under which
“an inducement to an individual to engage
in crime is authorized.”79 In the 2005 DOJ
OIG report, the DOJ OIG declined to review
the FBI’s compliance with the section on
entrapment on the grounds that the section
“largely addresses authorization issues
that we analyzed through examination
of the Guidelines’ general authorization
Thus, nowhere in this
provisions.”80
301-page report is there any review of the
issue of entrapment.

Departing from prior sets of guidelines
promulgated by John Ashcroft and Janet
Reno,73 the Gonzales Guidelines do not
require FBI agents to prohibit informants
from engaging in entrapment. Whereas
prior guidelines prohibited the FBI from
permitting an informant to “participate in an
act that constitutes an obstruction of justice
(e.g. perjury, witness tampering, witness
intimidation, entrapment, or the fabrication,
alteration, or destruction of evidence),”
or to “initiate a plan or strategy to commit
a federal, state, or local offense,”74 the
Gonzales Guidelines’ General Provisions
section removed these prohibitions.
The Gonzalez Guidelines address entrapment
obliquely.75 While they require the FBI
agent to provide a prospective informant
unconditional prohibitions on violence and
unlawful gathering of evidence, FBI agents

A more recent 2010 report by the
DOJ OIG on the FBI’s investigations of
domestic advocacy groups raised similar

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3. The Entrapment Defense

concerns about the FBI’s compliance
with its own guidelines. For example, the
DOJ OIG reviewed documents that “gave
the impression” that the FBI focused
on a particular group “as a result of
its anti-war views.” The DOJ OIG also
found “the FBI extended the duration of
investigations involving advocacy groups
or their members without sufficient basis”;
as well as “instances in which the FBI used
questionable techniques and improperly
collected and retained First Amendment
information in FBI files.”81

As the previous section demonstrated, the
relevant FBI guidelines provide few checks
on an expansive set of available surveillance
tools, including informants. However, those
indicted after an investigation involving
the aggressive use of an informant have
recourse to the judicially created entrapment
defense. To mount a successful entrapment
defense, the defendant must show by a
preponderance of the evidence that the
government induced him or her to commit
the crime charged.101 If the defendant is
successful in proving inducement, the
government must prove beyond a reasonable
doubt that the defendant was predisposed
to commit the crime charged. Although
the standards for establishing inducement
and predisposition vary across the federal
circuits and between states,102 “the principal
element in the defense of entrapment [is]
the defendant’s predisposition to commit
the crime.”103 Focused on predisposition,
the “subjective test” prevails as the general
standard in federal courts. The alternative
“objective” test focuses on the conduct
of the government actors, rather than the
mental state of the defendant.104

The 2005 and 2010 DOJ reports raise
concerns about the FBI’s compliance with
its own permissive guidelines.
Amongst those who have been critical of the
FBI’s lack of compliance is Mike German, a
former FBI domestic counterterrorism agent,
currently serving as Senior Policy Counsel
at the ACLU. In an interview with CHRGJ,
German noted that the 2005 Report “showed
that the FBI was out of compliance with
its guidelines to an extraordinary extent.”
German also said that “the Attorney General
guidelines are FBI policy. If they’re not being
followed, that’s a signal that something’s
wrong. The policies were derived from cases
where the FBI overreached.”82

Though it has yet to succeed, the entrapment
defense has been raised in a number of
federal criminal terrorism cases relying
on a paid, undercover informant.105 The

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Convictions Rely on Prejudicial108 Evidence

The types of evidence relied upon by the government in terrorism-related prosecutions are
highly prejudicial, and build on the conflation of Muslim religious practice, political opinions
critical of U.S. foreign policy, and terrorism. The prejudicial nature of relying on such evidence
is magnified in the context of an entrapment defense, when the defendant’s predisposition
to commit the charged crimes is at issue. The evidence shown in court used to establish
predisposition to commit the charged crime—violent videos, unpopular political and religious
speech, and, in some cases, weaponry109—is in fundamental tension with rights to a fair trial,
nondiscrimination, and freedom of religion, expression, and opinion.110 The evidence tends to
correlate what should be protected speech and expression with predisposition for criminality.111
Moreover, from videos to weaponry the material is often either provided by or obtained at the
encouragement of the informant.112 In the case of unpopular political and religious speech, the
speech is often reflective of—or encouraged by—the informant’s own speech and attempts to
incite the defendants over several months. Thus, whether the defendants would have committed
the charged crimes on their own is highly questionable.113 But given the sensational evidence,
government rhetoric about the threat of “homegrown terrorism,” and rising Islamophobia, it is not
surprising that juries have opted to conclude that the defendants in question were predisposed
to committing terrorism-related crimes.
The seeming conflation of unpopular political and religious views with the notion of predisposition
to criminal activity114 raises particular human rights concerns in regards to U.S. obligations
to protect rights to a fair trial, nondiscrimination, and freedom of religion, expression, and
opinion.115 In investigating or trying Muslim defendants, law enforcement agents and the courts
have equated the expression of religious ideas—or even the possession of particular print and
video materials—as evidence of a desire to commit terrorism.116 There is no empirical research
that establishes a causal link between any political or religious viewpoint with a propensity
to commit violent acts.117 However, much of the evidence presented at trials to convict the
individuals highlighted in this Report (as well as other defendants in terrorism prosecutions)
is based on the problematic assumption that religious and political views or speech constitute
proof of intent or predisposition.

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defendants are usually able to demonstrate
government inducement by a preponderance
of the evidence, shifting the burden to the
government to prove beyond a reasonable
doubt that the individual defendant was
predisposed to commit the crime prior to
meeting the informant.106 But the entrapment
defense has consistently failed, because
juries have either found that there was no
inducement or that the government had
proved predisposition beyond a reasonable
doubt.107
To the extent that the policing and
prosecutorial policies relied upon in these
cases go unquestioned, these cases
will further legitimate the practice of
investigating individuals based solely on
their religious and political views. As former
FBI Agent Mike German notes,
“If the government targets somebody
based on political advocacy, and can
lure a few people into committing bad
acts, then a successful prosecution in
those cases justifies future targeting of
people who are in the same position. . . .
Whether these cases could survive an
entrapment defense is not the relevant
question. It’s whether it’s appropriate
for the government to act in a way where
they’re aggrandizing the nature of the
threat. It’s just difficult to understand
what the legitimate government interest
is in these cases.”118

Dritan Duka with his wife, Jennifer Marino, and their children
Lejla, Xhebrail, Yasmine, Idris, and Annesa, at the Federal
Detention Center in Philadelphia, during Dritan’s first visit with
his children in prison.

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TAR G E T E D AN D E NT R AP P E D

renders
the
entrapment
defense
125
ineffectual.
Civil rights lawsuits are also
theoretically possible, but seem unlikely to
succeed.126 As the three case studies that
follow will illustrate, this lack of protection
essentially leaves the individuals—and their
families—caught up in these FBI-incited
plots with little recourse to justice.

Between the FBI Guidelines and the
entrapment defense, there are effectively no
legal protections placed on the government’s
use of informants.124 Substantive defenses
like entrapment or outrageous government
conduct exist, but in particular in the terrorism
context, the virtual equation of political and
religious viewpoints with predisposition

Entrapment in other Jurisdictions: The U.K. and Canada
Peer jurisdictions, including the U.K. and Canada, have dealt with entrapment cases by adopting
an objective test, based on a view that the violation is best understood as government abuse
of process, and that the courts should not permit prosecutions predicated on that abuse.
In both jurisdictions, the analysis focuses on the propriety of police conduct in light of the
circumstances.119
Common factors in both jurisdictions in assessing government conduct include the nature and
extent of police inducement, the particular vulnerability of the defendant, the extent of police
intrusiveness, and the nature of the offense.120
In the U.K., the overriding consideration is whether the conduct of the police was so seriously
improper as to bring the administration of justice into disrepute.121
In Canada, additional factors include whether the police exploited the compassion, sympathy,
or friendship of the target, and whether the police conduct is aimed at undermining other
constitutional values.122
Notably, both jurisdictions have rejected focusing on predisposition, and have counseled instead
for a focus on the propriety of government conduct.123 If applied to the cases considered in
this Report, such standards would likely lead to different results on the question of entrapment.

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II. The Cases

This section describes three New York-area
cases involving the government’s targeted
use of informants in Muslim communities.
However, it is important to note that the use
of these tactics in is not limited to New York
or New Jersey. There have been a number
of cases around the country that have raised
similar concerns, suggesting the practices
highlighted in these cases are illustrative of
larger patterns of law enforcement activities
that target Muslim communities around the
country.127
The accounts that follow are drawn from a
combination of interviews with the defendants’
family members, court documents, and
media coverage. The accounts seek to move
beyond the government’s one-dimensional
portrayals of the defendants in these cases
as terrorists, providing a fuller picture of the
government’s role in constructing the plots at
issue and highlighting the human toll of these
abusive government policies and practices.
The specter of terrorism allegations has cast
a shadow on the defendants, as well as on
family members who have lost their sons,
husbands, brothers, or fathers, and have
suffered stigmatization and harassment as a
result of these government-incited plots.

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© Lyric R. Cabral. Elizabeth McWilliams, mother of David Williams holds her son’s school photograph.

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A. David Williams – “The Newburgh Four” (Newburgh, NY)

1. The Family

with liver cancer. Lord was immediately
hospitalized and David was devastated.

When David Williams was 10 years old, his
mother Elizabeth moved the family from
Brooklyn to Newburgh.128 David’s father
had gone to prison on drug charges and she
wanted to get away from crime in the city.129
But Newburgh was a city on the decline.
As David got older, he began selling drugs,
and eventually wound up serving a five-year
prison sentence.130

“It was the first time I saw David cry,” Lord
has said. “For him not to be able to protect
me, I can only imagine how he felt.”133
Elizabeth anticipated how David would react.
“I didn’t want to tell him how serious it was,
because I didn’t want him to go back to
selling drugs. I told him Lord was going to
be OK.”134

After his release in 2007 at the age of 24,
David set about getting his life in order. With
no high school degree and a conviction on
his record, he faced significant challenges.
Nonetheless, Elizabeth recalls, “He was
doing good. I told him, even though you
have a felony, you can still go to college.”
Despite his learning disabilities, he pursued
his education at ASA College in Brooklyn.131

David’s aunt, Alicia McWilliams, recalls the
time well. “David watched his brother almost
die and be revived five times. He knew Lord
needed a liver. The whole experience took
him for a loop.” 135

2. The Case
In April 2009, David was presented with
an opportunity to make the kind of money
he needed to help Lord and more.136 An
acquaintance by the name of James
Cromitie told him about a wealthy Pakistani
businessman he knew as Maqsood.137 He
had offered Cromitie $250,000, several
luxury cars, and financing for a barbershop,
to help him carry out a terrorist attack in the
United States; Hussain also encouraged
Cromitie’s anti-Semitism.138 Maqsood had
asked Cromitie to find lookouts, who would
also be paid. But the lookouts, Maqsood

To his younger brother, Lord McWilliams,
David was the only father figure he had.
Together with their other brother, Hassan,
David steered Lord away from making the
same mistakes he had made. “He always
tried to show me the do’s and don’ts of
life, told me to stay in school, stay off the
streets,” says Lord.132 In early 2009, Lord
was planning on joining the military, with
his sights set on the elite Navy SEALs. In
March, however, his stomach swelled to a
frightening size and doctors diagnosed him

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repeatedly insisted, had to be Muslim.139 As
David would later tell it, Cromitie had a plan
to get the money before they would actually
carry out the plot. Either way, Cromitie told
David nobody would get hurt.140

(no relation to David)—to the Bronx to conduct
surveillance on various synagogues.145
Next he drove them to Connecticut to look
at the Stinger missile they were to use.146
Unbeknownst to David and the others, the
weapons were fake and supplied by the
FBI.147

Maqsood’s real name was Shahed Hussain.
He was a paid FBI informant who—for
the previous eight months—had been
encouraging Cromitie to agree to a plot
to plant bombs at a local synagogue.141
Originally sent into Newburgh to report on
the local mosque, Masjid Al-Iklas, he focused
on Cromitie after the mosque regulars grew
suspicious of his attempts to
engage them in discussions
about violent jihad.142

The night of May 20th, Hussain drove
Cromitie, Payen, and the two Williamses
to the Bronx. The FBI had placed two
cars in front of the proposed targets and
instructed Hussain to have Cromitie place
the explosives in their trunks.148 Hussain

“We got pulled into a political game. The case was
directed, produced, and scripted by the FBI, and all
they needed were puppets.”

Hussain
had
prior
experience
investigating
on behalf of the FBI. He
had helped the FBI obtain
convictions in a controversial case against
a pizza-parlor owner and a local imam in
Albany.143 Hussain’s apparent generosity
wasn’t limited to Cromitie. He told Elizabeth
that when Lord got better, he would take the
whole family to Disney World. Lord recalls,
“When my mom first told me that, I thought,
that’s nice of him.”144

dropped David off first and then drove the
remaining men to the first car.149 Before
reaching the second car, Hussain turned
off his recording device.150 The four were
arrested shortly after.151
At the time, Lord was at home in Newburgh.
He had just come home from chemotherapy
and was playing cards with a friend. “I heard a
boom at the door. I thought something must
be wrong, because it wasn’t a knock, it was
like someone kicking at the door. Then the

On May 13, 2009, at the FBI’s direction,
Hussain drove Cromitie, David, and two
others—Laguerre Payen and Onta Williams

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TAR G E T E D AN D E NT R AP P E D

SWAT team stormed in, I put my hands up,
and sat down.” Lord and his family members
were taken outside and watched as the FBI
removed evidence from their home. “At first,
I thought my brother had stored drugs in our
house. But then I started hearing the words
terrorism, mass destruction, and I was very

The guards were told to go hard on him. In
these cases, you’re guilty until proven guilty.”
In October 2010, after eight days of
deliberation, the jury returned a guilty
verdict.154 On May 3, 2011, the judge
denied the defendants’ motions for dismissal
on the bases of outrageous government
conduct and entrapment.155 Sentencing
is scheduled for June 2011. The charges
carry a minimum sentence of 25 years, and
the men could face life in prison.156

“Being called a terrorist hurts more than
if people say other things. Sometimes,
I want to throw in the towel….”

3. The Impacts
The damage to the family has been profound.
Since David’s arrest, Elizabeth has struggled.
“The friends I thought I had, I didn’t have,” she
says. She was evicted from the apartment
where the original raid was conducted. And
she’s had a hard time finding work or a
regular place to stay.157

confused.”152
At first, Alicia’s anger was directed at her
nephew. “I thought, what the f*** did you
do?” But the more she learned about the
case, the more her anger shifted toward the
government.

Lord, now 22, feels responsible. In his mind,
“David was put in this position because I got
sick.” Since the arrest, he has been harassed
for being Muslim and for being the brother of
an accused terrorist. “Being called a terrorist
hurts more than if people say other things.
Sometimes, I want to throw in the towel. I
think, if life is this hard, maybe death is easier.”
For a while, he even stopped taking his
cancer medication. “My brother said, you’re
not taking your medication, if you die, who is

“We got pulled into a political game. The
case was directed, produced, and scripted by
the FBI, and all they needed were puppets.”
At the initial jury selection in White Plains,
she recalls, “They had snipers on the roof.
That was just for show.”
Alicia also recalls that when David was locked
up in White Plains, people kept slipping notes
under his door calling him a terrorist.153 “He
was judged, tried, and convicted while inside.

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she adds. When asked if she feels daunted
or scared, she says, “No. I’m going to keep
fighting for David until the end of time.”160
Alicia quickly realized that David’s case was
just one of dozens of cases where informants
were inserted into Muslim communities to
lure young Muslim men into participating in
concocted plots.161 She became close with
several other families and urged them to
speak out. “They’re going to have to learn to
deal with the fear that’s going to come with
speaking out on behalf of their loved ones.”
Despite these difficulties, Alicia notes that
organizing around David’s case has also been
a fulfilling and positive process. “I’m learning
about new cultures and religions.” But she
insisted the issue is not exclusively a Muslim
one. “This affects all of us, as Americans.”

Alicia McWilliams, aunt of David Williams, in her living room.

going to take care of mom? Now, I see that
was selfish. I’m taking my medication now.
I’m trying to hold my mother together.”158
For her part, Alicia McWilliams has gone
from feeling abandoned by her community,
to becoming a leading organizer around the
issues raised by her nephew’s case. Alicia
particularly laments the resources wasted
on the case. “Newburgh is an extremely
impoverished town. How much money did
they spend on this whole production? They
need to be investing in our communities for
the future, not spending millions of dollars
on a fake case that makes nobody safer.”159

As Lord puts it, “At first, I asked myself, why
my family? But then I learned that it’s bigger
than us.”

“Newburgh is an extremely
impoverished town. How much
money did they spend on this whole
production? They need to be investing
in our communities for the future, not
spending millions of dollars on a fake
case that makes nobody safer.”

“We have to ask ourselves, who is going to
protect us from this government overreach?”

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Ferik Duka, father of the Duka brothers, with his grandchildren Idris, Yasmine, Lejla, and Xhebrail.

It was a family full of love, respect, trust, harmony, and dignity. The tables outside, in the backyard,
used to be filled with people. People would come over from Staten Island, Brooklyn, and have
barbeques. I still have the tables outside, 24 chairs… but now it’s gone with the wind. My sons are
political prisoners, not terrorists.
Ferik Duka, age 64 (father of Eljvir, Dritan and Shain Duka)

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B. Eljvir, Dritan and Shain Duka – “The Fort Dix Five”
(Cherry Hill, NJ)

1. The Family

The Dukas are ethnic Albanians who
emigrated to the United States when Eljvir,
Dritan, and Shain were six, four, and one
and a half years old, respectively. Zurata
and Ferik Duka came to America to escape
discrimination in the former Yugoslavia and
make a better life for their sons. They had
no idea that two decades later their sons
would themselves end up the victims of
discrimination—at the hands of the country
they had believed in—with all three sent
to prison for the rest of their lives164 on
terrorism charges for a plot that was, in fact,
created by the FBI.165

Family was everything to brothers Eljvir,
Dritan, and Shain Duka. They worked
seven days a week for their father’s roofing
business and urged their father, Ferik Duka,
to retire. Ferik remembers, “They stopped
me from working. They told me, ‘You aren’t
going to work anymore; you’ve worked
enough. You came to this country with
nothing, you worked for us. No more work
for you and Mommy.’”162
When the brothers weren’t working to
support the family, they spent their free time
with Dritan’s five children. “We were always
going to the park, picnics, we went to Six
Flags every year, and every Friday we’d all
go to the mosque. We had a really fun time
together as a family. Our family was tight,”
reminisces Dritan’s eldest daughter, Lejla
Duka.163 Except for one year when Dritan
moved his family to a nearby apartment, all
three brothers and their families lived in the
same house with their parents and younger
brother Burim in Cherry Hill, New Jersey.

2. The Case
The chain of events that turned the Dukas’
world upside down began in January 2006
when Eljvir, Dritan, and Shain asked their
father if they could take a vacation for the
first time in years.
The four brothers spent their week off in
the Pocono Mountains with eight friends.
To remember the trip, they made a DVD of
the vacation from video footage they had
recorded over the course of the week. Their
youngest brother, Burim Duka, who was on
the trip, explains, “there were 11 of us [guys],
and we wanted to make copies for everyone,
so we went to Circuit City. The clerk watching
the video heard us saying Allahu Akbar [God
is Great], and turned it into the police station.

“We were always going to the park,
picnics, we went to Six Flags every
year, and every Friday we’d all go to
the mosque. We had a really fun time
together as a family. Our family was
tight.”

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They turned it over to the FBI. And then the
FBI started following us.”166

committing violent acts in the name of Islam.
In August 2006, the informant Omar drove
Mohammed Shnewer to Fort Dix and
other sites, which the government later
characterized as “reconnaissance.”173 A few
months later, Omar approached the brothers
with a list of weapons, offering to help them
procure more guns. Burim explains, “My
brothers wanted the guns because they
were going to the Poconos again with their
friends and didn’t want to wait in line for
target shooting with such a big group.”174

The vacation video footage showed the
Duka brothers and their friends engaging in
recreational activities—riding horses, skiing,
playing paintball, shooting at a firing range,
and pulling pranks. But after seeing the DVD,
the FBI targeted the Duka brothers and two
of their friends, Mohammed Shnewer167 and
Serdar Tatar, as the subjects of a costly and
intensive investigation that would last more
than a year.168
The government sent paid informants,
Mahmoud Omar and Besnik Bakalli, to Cherry
Hill. The Duka brothers became especially
close to Bakalli, an Albanian national.169
The brothers brought Bakalli to their house
where Zurata cooked him Albanian meals.
“We respected him. We loved him as a son,”
explains Ferik.170 The brothers thought
Bakalli was their friend when, in fact, he was
being paid by the government and given
legal status to spy on the Duka family.171

The brothers never made it to their next
vacation. On May 7, 2007, Dritan and Shain
were arrested when they went to pick up the
guns. Eljvir was arrested at Dritan’s apartment
in front of Burim and Dritan’s entire family.

Over the course of more than a year, Omar
and Bakalli secretly recorded hundreds
of hours of conversations172 with the
Duka brothers, Shnewer, and Tatar. Both
informants bombarded the men with talk of
violence, trying to goad them into action by
questioning their manhood and encouraging
them to download videos depicting individuals

The three Duka brothers, Mohammed
Shnewer, and Serdar Tatar were charged with
conspiracy to attack Fort Dix and weapons
possession.176 In a conspiracy case, any act
of any member is attributed to the group as a
whole and the informants intentionally tried
to create enough ties between the brothers,
Shnewer, and Tatar to make this argument.177

The trial took place in Camden, New Jersey.
“Eight weeks. We never missed a day.
9/9:30 to 4:30pm in the courtroom,” says
Ferik of his and Zurata’s attendance during
the trial.175

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TAR G E T E D AN D E NT R AP P E D

counsel, the public, or
the media was aware
of the identities of
the jury members
at trial. The use of
© Lyric R. Cabral. Zurata Duka, mother of the Duka brothers, in her home praying.
anonymous
juries
has been criticized
Though there were grounds for the
for biasing the jury itself to perceive of the
entrapment defense,178 the Duka brothers’
defendants as so dangerous as to require
attorneys focused instead on the brothers’
anonymity.182 After the trial, juror number
lack of awareness of any plot whatsoever.
three publicly stated that the jury was sure
They argued that the brothers had no
“they were going to do it”—that the men
knowledge of the alleged agreement to
would eventually have carried out an attack
commit a crime and as a result there was
on the Fort Dix army base.183 The Duka
insufficient evidence to prove conspiracy.179
family questions the impartiality of the
The informant Omar even testified on the
jury, particularly juror number three, whose
stand that the Duka brothers had no idea
son—a marine—had been wounded in Iraq.
about the plan, nor any knowledge of the trip
She publicly admitted that watching some
that he and Shnewer had taken to Fort Dix.180
of the videos shown at trial—videos the
The Duka brothers can also be heard on the
informants downloaded or encouraged the
tapes rejecting the informants’ attempts to
men to download—had reminded her of the
provoke them into expressing support for
attack on her son.184
violent jihad. For example, Eljvir’s lawyer
noted in his opening statement that Eljvir
3. The Impacts
can be heard on tape saying that staging
Ferik and Zurata Duka came to this
an attack is “haram” (forbidden) and that
country as hopeful immigrants, learned the
soldiers on U.S. soil have not done anything
language, started a successful business,
to warrant such measures.181
were well-respected in the community, and,
Nevertheless, the jury convicted the Duka
most importantly, had created a close-knit
brothers and their co-defendants. By virtue
and loving family.
of an extraordinary government request, the
All of this changed when the government
jury that heard the case was anonymous,
decided to target their sons. Eljvir, Dritan,
meaning that none of the parties, their

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TAR G E T E D AN D E NT R AP P E D

supports them now… I basically support four
families.”189 Shouldering a heavy burden for
a 20-year old, Burim now runs one of the
Dukas’ roofing companies; Ferik came out of
retirement to run the other.

and Shain have now been in prison for almost
four years and will remain there for the rest of
their lives unless their appeal is successful.185
Zurata struggles to articulate the devastating
effects that the case has had on their lives:
“I can’t explain it. We are not the people that
we used to be, happy. We are not the same
people…we’re not here anymore.”186

At the time of the arrests, the Dukas’ roofing
companies had over $400,000 in contracts.

The same night that the FBI arrested his
sons, Ferik Duka was arrested and held in
immigration detention for a month.187

“Obama, the Justice Department – they
have to hear. They are not doing the
right thing; they have to stop pointing
the finger at innocent Muslim people.”

Amidst everything else, Dritan’s family was
summarily evicted from the apartment they
had rented. Zurata recalls,

Zurata Duka, mother of the Duka brothers

“They [the landlord] said ‘get out of the
apartment these are terrorists.’ They
gave us three days’ time to get our
clothes. We had to get clothes from the
apartment and bring them to our house,
which was surrounded by news people.
I had the truck, but nobody to drive,
nobody to help.”188

These dried up almost immediately after the
brothers were arrested. People who had
worked with Ferik for more than a decade
took their business elsewhere. Their biggest
customer, the local fire department, called to
say they had been warned by the government
not to do business with the Dukas. Internet
sites labeled their businesses as being “run
by terrorists,”190 and they received harassing
phone calls at their businesses. While they
once dreamt of building four neighboring
houses, one for each brother, today they are
barely able to make ends meet.

After the eviction, Dritan’s five children
moved in with their grandparents and uncle
Burim, where they’ve lived ever since.
Without his brothers to run the roofing
business, Burim dropped out of high school
to support his remaining family members.
Noting that his nieces and nephews are
“like orphans now,” Burim said, “it’s me who

The neighborhood that the Dukas have
called home for more than a decade has

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TAR G E T E D AN D E NT R AP P E D

become inhospitable to them. Though some
have stuck by the family, many neighbors
have stopped talking to them. When the
brothers were first arrested, strangers would
drive by the house yelling “terrorist.” The
Muslim community in Cherry Hill has also
distanced itself from the family. “They said
‘we are scared,’” explains Ferik.191

to interact with them from behind a glass
wall. It was the first time that Eljvir met his
daughter Fatima, who was born after his
arrest.
While the rest of his family was in Colorado,
Burim remained at home. He was denied
permission to visit his brothers without any
further explanation. “Everyone called us
‘four peas in a pod,’ we were that close. I
went with my brothers everywhere. And now
I haven’t seen my brothers in four years,”
recalls Burim.194

Ferik and Burim are convinced that they are
often followed while driving. The whole family
suspects that they remain under 24-hour
government surveillance. Zurata expressed
fear of retaliation against herself, or even
against 13-year-old Lejla, for speaking out
about the case. “Disappearances are not
unheard of in this country,” she said, her
former confidence in freedom and justice in
America shattered.192
The family does not fly, unwilling to face
hours of questioning at the airport, if not
worse. Zurata and Ferik’s worst nightmare
is that Burim might become the next victim
of a government set-up. “The government
already took three of my sons… what’s to
stop them from taking Burim too?” asks
Zurata.193

In the four years since the arrests, the
members of the Duka family have worked
hard to raise awareness about the case and
what they see as the systemic injustice of
counterterrorism operations in the United
States today. “If we don’t speak up, who
else is going to? The more people we get
[to listen], the more the FBI will realize they
have to stop what they’re doing. We have
to start a trial against the FBI, to hold them
accountable for what’s going on,” explains
Burim, who runs the FreeFortDixFive.com
website on his brothers’ behalf.195

Instead, when they have to travel, the Dukas
drive. They drove two days straight in July
2010 to Colorado to visit Eljvir, Dritan, and
Shain, where they are housed in the nation’s
only supermax prison. It was the first time
they had seen them in months and they had

Lejla, who began speaking publicly about
the case when she was only 11 years old,
adds “it’s not just my father’s case, there are
thousands of cases just like this, and we
need to step forward, so we can actually be
a free country.”196

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TAR G E T E D AN D E NT R AP P E D

“We saw around 50 federal agents. They were all dressed
in black. They were in the dumpsters even. I came out of
the car to see what was going on. They pointed guns at us.
They put Dritan in handcuffs. They had me in handcuffs.
They had dogs trained on us, foaming at their mouths,
which was scary because we couldn’t protect ourselves.
The nieces and nephews were just in the truck crying. I
was 15. I thought I was in a dream when that was going
on, during the arrest.”
Burim Duka, age 20 (brother of Eljvir, Dritan and Shain
Duka), describing Dritan’s arrest

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TAR G E T E D AN D E NT R AP P E D

© S. Nadia Hussain. Shahina Parveen, mother of Shahawar Matin Siraj, attending the 2011 South Asian Summit
in Washington, D.C., hosted by South Asian Americans Leading Together (SAALT).

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TAR G E T E D AN D E NT R AP P E D

C. Shahawar Siraj Matin (Bay Ridge, NY)

1. The Family

volunteered to donate blood for the victims.
He was sad that all these people were
hurting, and he wanted to help.” Saniya
recalls, “Shahawar shared everything with
me. He taught me how to play Pokémon and
car-racing video games.”200

When Shahawar Matin Siraj was 16 years
old, his mother, Shahina Parveen, moved his
family from Pakistan to the United States.
They applied for asylum for fear of facing
persecution as Ismaili Muslims, a religious
minority in Pakistan. Like many immigrants
before them, they settled in Jackson Heights,
Queens, and have lived there ever since.197

2. The Case
Starting in November 2002, an undercover
police officer, known only by his alias, Kamil
Pasha, started hanging around the bookstore
and getting to know Shahawar.201 He
engaged Shahawar in discussions about—
among other things—9/11, Osama bin
Laden, and suicide bombings in Palestine.202
Shahawar made statements during these
conversations that would later be used
against him at trial.

With his father, Siraj Abdul Rehman, unable
to work due to health problems, Shahawar
began supporting the family financially
shortly after arriving in the country. With a
tenth-grade education, he held a variety of
jobs before becoming a clerk at his uncle’s
bookstore, Islamic Books and Tapes, in Bay
Ridge, Brooklyn.198
Although he took on the responsibilities of
an adult, his mother and sister remember
his childlike qualities. “He was an honest,
hard-working, and immature kid,” his mother
Shahina recalls. Even while he was working,
Shahina says, “I always knew where my son
was. I was always aware of his whereabouts.”
Shahawar’s sister, Saniya, now 24 years old,
also recalls his innocent and trusting nature.
“If you said something nice to him, he was all
yours. He was a little immature. He believed
in people.”199

Around the same time, a 50-year old Egyptian-American named Osama Eldawoody
was looking to work for the NYPD. He had
offered to help investigate ID fraud among
immigrants but, instead, the NYPD told
him that they wanted him to be their “eyes
and ears” within the Muslim community.203
Eldawoody agreed and was soon sent to a
mosque in Staten Island.204 He proved to
be an eager recruit: his first day on the job
he took down the license plate numbers of
every car in the mosque’s parking lot.205

Mother and sister also note Shahawar’s
generosity.
“After September 11, he

Over the next several months, Eldawoody

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TAR G E T E D AN D E NT R AP P E D

made 575 visits to various mosques and
filed some 350 reports.206 Eventually, he
was sent to the Islamic Society of Bay Ridge,
where he developed a reputation for being
theatrically devout and outspoken.207

Shahawar his “son.”211 Eldawoody began
driving Shahawar home nearly every day, and
expounded on his views regarding Islamic
duties and politics.
Eldawoody cursed
America, and insisted that “it was lawful to
spill a non-Muslim’s blood.”212 Eldawoody
also said that his imam had issued a fatwa
to kill American soldiers.213 He also said
that he didn’t want to die of cirrhosis while
Muslims were still suffering—that he wanted
to “do something.”214

According to Shahina, Eldawoody’s original
target was the mosque’s imam, Sheikh Reda
Shata: “The informant first went after the
imam but when that didn’t work, he started
hanging out at the mosque looking for an
easier target. When he couldn’t get the
imam, he came for my son.” 208

Shahina recalls that she and her husband
were troubled by the burgeoning relationship
between Shahawar and Eldawoody. “I warned
Shahawar about Eldawoody, because he
was a bad driver. For a while, he stopped
getting a ride, but then started up again. I
told him not to, but he said, ‘He’s a sick man,
he’s dying.’”215

“Our entire family is scared, they’re
scared to talk in our house. One of our
aunts hasn’t called us in three years.
We don’t even visit with her because
she’s too scared.”

In April 2004, when the abuse of detainees
by U.S. soldiers at Abu Ghraib216 first became
public, Eldawoody seized on the opportunity
to take things to the next level. Shahina
explains that Eldawoody started showing
Shahawar “awful, awful scary photos of Abu
Ghraib and Guantanamo. If you show these
pictures even to a non-Muslim, it’ll make
them crazy. No one can bear these photos,
Eldawoody showed Shahawar these photos
and said, ‘it’s your duty as a Muslim to do
jihad in response.’”217

In September 2003, the NYPD told
Eldawoody to befriend Shahawar.209
Eldawoody did and reported that he found
He also
Shahawar “impressionable.”210
became close with Shahawar’s friend, James
Elshafay, a 19-year-old schizophrenic, who
would later testify against Shahawar at trial.
With time, Shahawar came to regard
Eldawoody as an elder. “I am like your son,”
he said. Eldawoody reciprocated, calling

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TAR G E T E D AN D E NT R AP P E D

impress Eldawoody—Shahawar suggested
that a bomb at the 34th Street subway
station late at night would cause great
economic damage without killing anyone.224
Once again, Eldawoody proved eager. He
suggested using uranium-235 and remotecontrolled detonation, and even offered to
obtain the nuclear material from the Russian
mafia.225 Though Shahawar grew uneasy,226
Eldawoody pressed on, asking if the station
had surveillance cameras.227 On August
21st, he drove Shahawar and Elshafay
to survey the station.228 They returned to
Eldawoody’s car and drew up maps, which
would be used against Shahawar at trial.229

© DRUM. Shahina Parveen (second from left), mother of
Shahawar Matin Siraj, in Washington D.C.

After months of Eldawoody’s campaign,
Shahawar finally crumbled when he was
shown pictures of young Iraqi girls being
threatened and raped; he told Eldawoody
that they had to do something.218 Eldawoody
then told him about a group called “The
Brotherhood,” with operatives in upstate
New York who could help them.219 Then, in
May 2004, Eldawoody told his handlers, “I
believe it’s time to record.”220

Just two days later, while driving Shahawar
and Elshafay home, Eldawoody had surprising
news for the pair: “Brother Nazeem is . . .
very happy. Very, very impressed.”230 When
Shahawar asked, “Who is Brother Nazeem?”
Eldawoody replied that he was a higher up
in the Brotherhood and that he was, “very,
very, very happy with 34th. He’s very happy
with 34th.”231

At some point around that same time, his
friend James Elshafay shared a crude map
of Staten Island—marked with the jail, police
stations, and surrounding bridges—with
Shahawar.221 Shahawar turned the map
over to Eldawoody, who said he would show
it to the Brotherhood.222 Despite Elshafay’s
mental problems, Eldawoody flattered him
and queried him about how best to blow up
the Verrazano Bridge.223

Shahawar has said he was taken aback by how
quickly things were developing. Shahawar
asked if this “Brother Nazeem” understood
that there was to be no killing, and changed
the subject several times,232 but Eldawoody
was intent on getting a commitment and
repeatedly asked how Shahawar planned
to contribute.233 Shahawar refused to plant

In early August of that year—possibly to

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TAR G E T E D AN D E NT R AP P E D

“They’ve ruined my children’s future . . .
Years have been wasted. [My daughter’s]
now the sister of a ‘terrorist.’”

any bombs, but tentatively agreed to serve
as a lookout.234 However, he insisted that he
would first need his mother’s permission.235
Unsatisfied with this stipulation, Eldawoody
threatened to tell “the Brotherhood” and said,
“If you tell me you don’t feel comfortable, if
you don’t want to do it, let me tell him straight.
. . . You don’t want to do it?”236 Shahawar’s
response was, “No, I don’t want to do it.”237
Eldawoody then ratcheted up the pressure:
“Okay. Okay. That’s what I’m going to call
him to let him know, okay? Why didn’t you
tell me before?”238 Shahawar: replied “I don’t
know I have to do it. I know that I am making
a plan. But, you know, I don’t know that I’m
going to go and do it. And so that fast?
No, impossible.”239 Nonetheless Eldawoody
persisted and Shahawar finally agreed to
be a lookout.240 This seemed to appease
Eldawoody. Before getting out of the car,
Shahawar apologized.241

rebuttal, which focused on predisposition,
the government relied heavily on statements
Shahawar had made in the presence of Kamil
Pasha.246 A jury found Shahawar guilty and
he was sentenced to 30 years in prison.247

3. The Impacts
The day after Shahawar was sentenced,
Immigrations and Customs Enforcement
(ICE) agents took Shahina, Saniya, and Siraj
into custody.248 Shahina and Saniya spent
the next 11 days in a detention center in
Elizabeth, New Jersey.249 “The conditions
were really bad,” says Saniya, “We didn’t have
any privacy and had to take showers in front
of everyone else. They separated us for two
days. My mom was crying and crying, yelling
‘Don’t go, don’t take her.’ She didn’t sleep the
entire night.”250
Supporters protested outside the facility and
scrambled to raise money for the family’s bail.
When Shahina and Saniya were released,
they found that the government had seized
their bank account and confiscated their
passports and IDs, leaving their lives in
tatters. Siraj would spend the next six
months in immigration detention.

There was no further contact between the
three.242 Elshafay would later testify that
Shahawar had tried to back out of the plan.243
The following week, the police asked
Shahawar to come to the station about
an unresolved misdemeanor charge and,
when Shahawar went to the station, he was
arrested on conspiracy charges.244

“They made us beggars,” Shahina says. Saniya
took time off from school, as money was
diverted to lawyers. With both breadwinners
behind bars, Shahina went to work at the

At his trial in Brooklyn, the defense argued
that Shahawar had been entrapped.245 In its

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TAR G E T E D AN D E NT R AP P E D

very bookstore where Eldawoody had first
befriended her son. When her husband was
eventually released six months after their
son’s arrest, he took over her position at the
bookstore. Since then, he has worked seven
days a week, all while under house arrest.

is actually part of a larger pattern—Shahina
and Saniya began to combat their sense of
isolation. Through a community organization
called Desis Rising Up and Moving (DRUM),
both Shahina and Saniya have become vocal
advocates, both for Shahawar and against
the government’s use of informants to target
Muslims and concoct fake terrorist plots. “I’m
not scared anymore,” says Saniya, “I got that
strong feeling from DRUM, because a lot of
people supported us. I learned a lot, and my
mom became more active. She spoke out. I
spoke out.”

“Our entire family is scared,” laments Saniya.
“They’re scared to talk in our house. One
of our aunts hasn’t called us in three years.
We don’t even visit with her because she’s
too scared.” The cousins whom Shahawar
used to play with no longer visit the Siraj
household. Formerly friendly neighbors have
also kept their distance.251

Shahina echoes the sense that they are
part of a larger justice movement. “I went to
DRUM in 2006, and since then, I realized that
we were not the only ones being targeted,
but that there are many families who have
been targeted, and many families with many
sons in jail.”

At first Shahina and Saniya were fearful and
withdrawn as well. Mother and daughter
were stigmatized by Shahawar’s arrest, and
traumatized by their own immigration arrest
and detention. After being released from
detention, Saniya was afraid they would
come back and says she “began having
nightmares.”

“There are many stories that overlap. Many
men in our communities have been targeted,
and the women and children are left out in
the cold.”

Shahina said the ramifications of her son’s
case have extended to all aspects of her life.
“I’m worried about my daughter’s prospects
for marriage and employment. They’ve
ruined my children’s future, my daughter’s
college. Years have been wasted. She’s
now the sister of a ‘terrorist.’”
Over time, however—and faced with the
growing awareness that Shahawar’s case

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TAR G E T E D AN D E NT R AP P E D

D. Patterns

As with other cases around the country,252
The government played a significant role
the three cases outlined in this Report all
in instigating and devising the three plots
involved the use of informants where there
featured in this Report—plots the government
was no previous evidence to suggest that the
then “foiled” and charged the defendants
defendants were planning to commit violent
with. Despite this fact, the defendants
acts before the FBI
in
these
cases
or NYPD intervened.
were all convicted
The
government’s
and
are
facing
“There are many stories
informants not only
prison
sentences
that overlap. Many men in
held
themselves
of 25 years to life.
our communities have been
out as Muslims, but
These and similar
targeted, and the women and
also focused their
prosecutions
that
attempts at incitement
rely on the abusive
children are left out in the cold.”
on Muslims.
The
use of informants
government’s
have been central to
Shahina Parveen, mother of
informants introduced
substantiating
the
Shahawar Matin Siraj
and
aggressively
government’s claim
pushed ideas about
that, as a country,
violent jihad and even encouraged the
we face a “homegrown threat” of terrorism.
defendants to believe that it was their duty
Each case also raises serious questions
to take action against the United States. In
about both the government’s role and the
two of the three cases, the government relied
set of laws being used to facilitate these
on the defendants’ vulnerabilities—poverty
practices.
and youth, for example—in its inducement
These cases and other documented
methods. In all three cases the government
practices are suggestive of larger patterns of
selected or encouraged the proposed
law enforcement activities that are targeting
locations that the defendants would later
Muslim communities around the country.253
be accused of targeting. Likewise, in all
As elaborated below, these practices, and
three cases, the government provided
their impacts, raise a number of serious
the defendants with—or encouraged the
human rights concerns.
defendants to acquire—material evidence,
such as weaponry or violent videos, which
would later be used to convict them.

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III. Human Rights Implications and Obligations

The practices described in this Report raise
serious concerns about the U.S. government’s
compliance with its international human
rights obligations. As described below,
international treaties ratified by the United
States guarantee, among other rights, the
rights to: a fair trial, non-discrimination, and
freedom of expression and religion. As a
State Party to the International Covenant on
Civil and Political Rights (ICCPR) and the
International Convention on the Elimination
of All Forms of Racial Discrimination
(ICERD),254 the United States is obligated
to respect, protect, and fulfill the rights
contained in these treaties for all individuals
within its territory or under its jurisdiction,
and must do so in a non-discriminatory
manner.255 Under international law, a number
of these rights apply equally to citizens and
non-citizens.256

expression and religion, all of which are
protected under international law.
Although we focus our analysis on the rights
obligations that the United States has as
to the defendants and Muslim communities
more broadly, the experiences of the families
of the defendants also raise significant
human rights issues.259

A. Right to a Fair Trial
Pursuant to its obligations under the
ICCPR and ICERD, the United States must
guarantee the right to a fair trial, and must
do so in a non-discriminatory manner.260 The
U.N. Human Rights Committee, (the body
responsible for monitoring implementation of
the ICCPR) has not yet had the opportunity
to consider the issue of entrapment or the
use of informants in a manner that is directly
on point to the cases that are the subject
of this Report. However, the European
Court of Human Rights (ECtHR), a leading
authority on human rights law, has applied
analogous fair trial provisions to undercover
police investigations.261 In particular, the
ECtHR recognizes that a fair trial requires
that all aspects of a criminal proceeding be
fair, including “the way in which evidence
was taken.”262 With regard to undercover
investigations, the ECtHR has held that
proceedings resulting from investigations
where police incite the commission of a

International human rights law also
recognizes that the State has a duty to
protect its nationals and others against
violence, including terrorism. Specifically,
States must protect the right to life through
policing and other security measures.257
States must, however, simultaneously comply
with international human rights law while
taking steps to protect national security.258
As described below, the U.S. government’s
practices and policies that are the subject
of this Report implicate the rights to a fair
trial, non-discrimination, and freedom of

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crime are fundamentally deprived of their
fairness. Thus, to ensure that due process
and the right to a fair trial are not violated,
undercover agents must investigate in “an
essentially passive manner,” and cannot “exert
such an influence on the subject as to incite
the commission of an offense that would
otherwise not have been committed.”263
Otherwise, using the evidence obtained by
incitement would result in the defendant
“being definitively deprived of a fair trial from
the outset.”264

convicted. The government did not have any
particularized suspicion of criminal activity at
the time the informants met the defendants.
Nor did any of the defendants have prior
related convictions. In other words, the
government had no good reason to believe
the defendants would have committed the
crime on their own. These actions have
serious implications for the defendants’
rights to a fair trial, and as described further
below, to their rights to non-discrimination,
and freedom of religion, expression, and
opinion.

In assessing whether the government
incited the crime, the ECtHR considers
whether the agents pressured or
threatened the defendant, or whether
objective circumstances were such that the
government had good reason to believe that
the defendant would have committed the
crime on their own—for example, given prior
related convictions—which would indicate
predisposition.265

B. Right to Non-Discrimination
The prohibition on discrimination is one of
the pillars of the protections guaranteed
by both ICERD and ICCPR, constituting a
peremptory norm of international law from
which no derogation is permitted,267 even in
times of public emergency.268 The ICCPR
prohibits discrimination on the grounds of
race, color, sex, language, religion, political
or other opinion, national or social origin,
property, birth or other status.269 Under
ICERD, State Parties “condemn racial
discrimination and undertake to pursue by
all appropriate means and without delay a
policy of eliminating racial discrimination in
all its forms.”270 ICERD defines prohibited
“racial discrimination” broadly to include

Incitements by government agents to commit
the crime during the investigation phase
have serious implications for assessing the
overall fairness of criminal proceedings
as a whole.266 In the three cases detailed
in this Report, the informants, working on
behalf of the government, went far beyond
investigating in a passive manner. On the
contrary, the government’s informants played
a significant role in instigating and devising
the plots for which the defendants were later

“any distinction, exclusion, restriction or
preference based on race, colour, descent,

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TAR G E T E D AN D E NT R AP P E D

or national or ethnic origin which has the
purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise,
on an equal footing, of human rights and
fundamental freedoms in the political,
economic, social, cultural or any other field
of public life.”271

Under international law, policies that impose
a disproportionate burden on particular
groups—whether purposely or in effect—
must be justified in order not to constitute
prohibited discrimination.275 In determining
whether the government’s targeting of
Muslims for surveillance and coercive
counterterrorism investigations is illegal
under international law, two key questions
must be addressed.

Although ICERD, on its face, does not
cover discrimination based on religion, the
Convention has been interpreted to prohibit
religious discrimination, especially when
consistently tied to racial discrimination.272

First: Do the government’s investigation
policies and practices have the purpose
or effect of disproportionately burdening
a particular racial, ethnic, religious, or
national group?276

The construction of a terrorist “Other” in
the post-September 11, 2001, context
has conflated notions of race, ethnicity,
religion, national origin, gender, and political
views, effectively racializing Islam, Muslims,
and Muslim religious practice as radical
and dangerous to U.S. national security
interests.273

Though the burden to prove intent under
international human rights law is high, the
policies and practices highlighted in this
Report suggest the government is targeting
Muslim communities with law enforcement
and intelligence-gathering activities like
surveillance and informants, absent any
particularized reason to suspect criminal
activity.277

In all three of the cases highlighted in
this Report, the government used paid
informants to incite the defendants to
act. While the facts of each case are
distinct, David Williams; Eljvir, Dritan, and
Shain Duka; and Shahawar Matin Siraj
were all targeted by the government for
investigation, surveillance, and the use of
informants because they are Muslim, a fact
that implicates the fundamental right to nondiscrimination.274

The
government
has
argued
that
counterterrorism investigations targeting
Muslims do not constitute discrimination
because law enforcement officials only
launch investigations when they have
good reason to believe that the subjects
are planning to commit a crime. However,
the FBI Guidelines and DIOGs allow

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TAR G E T E D AN D E NT R AP P E D

for investigations and the collection of
information focusing on certain ethnic
communities, without any factual predicate
or evidence of criminality.278

manufactured plots—as well as terrorism
prosecutions—falling disproportionately on
Muslim communities.281
Second: Is this disproportionate burden
justified?
International law allows
discrimination to be justified in certain
circumstances, where the aim of the
measure is legitimate and the differentiation
is objective, reasonable, and proportional
to that aim.282

As the cases mentioned in this Report clearly
demonstrate—encouraged by the preventative
model’s focus on “radicalization”—the
government is taking action before any real
indication of criminality arises. Instead, the
government appears to be targeting Muslim
communities on the basis of their religious
and cultural identities and practices, as well
as expression of religious and political beliefs,
absent any nexus to criminal behavior.279 The
NYPD Radicalization Report, for example,
identifies “[w]earing traditional Islamic clothing
[and] growing a beard,” as signs of the, “selfidentification” phase of radicalization.280

Policies and practices that have the purpose
or effect of disproportionately burdening a
particular racial, ethnic, religious, or national
group must be justified in order not to
constitute
prohibited
discrimination.283
Factors that may be considered in
determining whether a burden is justified
include:

The laws, policies, and practices of
counterterrorism policing—including those
documented in this Report—have resulted in
greater law enforcement scrutiny of Muslim
communities around the United States
in a manner that targets Muslim religious
practice, such as attendance at the mosque,
or expression of political opinions critical of
U.S. foreign policy, raising troubling human
rights impacts and concerns. Whatever the
intent, the government’s investigation and
surveillance policies have a discriminatory
effect, with the burdensome impact of
surveillance, informant, and government-

1.	 The importance of the right infringed by
the measure;284
2.	 The aim and legitimacy of the measure;285
3.	 Whether the measure uses criteria that
are “objective and reasonable”;286 and,
4.	 Whether the means used are proportional
to, and effectively advance, the aim.287
With regard to the first point, the rights
to non-discrimination, a fair trial, and to
freedom of religion, expression, and opinion
(discussed further below) are fundamental
human rights.288 In considering the second

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TAR G E T E D AN D E NT R AP P E D

C. Rights to Freedom of
Religion and Expression

factor—the legitimacy of the aim or objective
pursued—while the government’s overarching
aim is arguably to identify potential threats
and, thereby, defend national security, as
noted above, these aims must be pursued in
compliance with human rights norms.289

The ICCPR guarantees the rights to freedom
of thought, conscience, and religion,292 and
to freedom of opinion and expression.293
The Human Rights Committee has made
clear that the Article 18 right to freedom
of thought, conscience and religion… “is
far-reaching and profound; it encompasses
freedom of thought on all matters, personal
conviction and the commitment to religion or
belief, whether manifested individually or in
community with others.”294 The Article 19
right to freedom of opinion, expression and
information is similarly broad, encompassing
“the freedom to seek, receive and impart
information and ideas of all kinds.”295

On the final two criteria, the targeting and
surveillance of Muslim communities writ
large—as well as the use of informants
to incite Muslims to engage in speech or
conduct that will later be used to support a
government-concocted terrorism plot—are
simply not justified when one considers the
following points:
 Law enforcement activities appear to
be triggered simply by virtue of the
subjects being Muslim, without any
actual indication of criminal behavior,
suggesting that the criteria used is
neither “objective” nor “reasonable.”

The right to freedom of thought, conscience,
and religion is directly affected when
the
government’s
surveillance
and
counterterrorism
investigations
target
individuals because of their faith.296 The
government’s targeting of the Muslim
community in law enforcement operations
also implicates the right to freedom of
opinion and expression when individuals are
subjected to greater scrutiny because of the
particular political opinions they express.297
Anti-radicalization policies and resultant
law enforcement practices—coupled with
the general climate of Islamophobia they
foment—also have an indirect chilling effect

 The government expends significant
resources paying informants and
manufacturing terrorist plots. These
actions do not make the country safer
and, in fact, divert limited resources away
from monitoring actual threats.290
 The government’s use of informants and
surveillance in Muslim communities institutionalizes and legitimizes Islamophobia
and xenophobia in the general public.291

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on freedom of expression and religion in the
Muslim community more broadly.298

notion of ideology or ideas as the driver of
violence, even though that is inconsistent
with empirical research. This points in the
direction of criminalizing the ideas that
are thought to motivate violence. There
is a drive to say that this set of ideas,
this ideology is not entitled to freedom of
expression.”302

Many Muslims—or those perceived to be
Muslim—have intentionally altered how they
practice or manifest their religion,299 For
example, many have altered their physical
appearance or dress, curtailed public prayer
or worship, changed their names, or now
avoid the discussion of politically-charged
topics.300 As such, the effects of targeted
surveillance and discrimination against
the Muslim community have had serious
implications for both the freedom of religion
(Article 18) and the freedom of opinion and
expression (Article 19). Many American
Muslims are unable to practice their religion
freely and are constrained in their ability to
express their religious and political views
without fear. Studies have shown that a
majority of Muslims believe it has become
“more difficult to be a Muslim in America,”
while almost three-quarters have expressed
the concern that “U.S. anti-terrorism policies
single out Muslims for extra surveillance.”301

Kundnani has observed the real-life
effects of these concerns amongst Muslim
communities.
“The radicalization model implies that
those expressing radical views should
expect the FBI to infiltrate their mosques
or community organizations. As a result,
there has been a real chilling effect on
expression. I have seen a reluctance to
express views on issues such as Palestine
or American foreign policy, in order to
avoid attracting the attention of law
enforcement.”303
The U.N. Special Rapporteur on the
Promotion and Protection of Human
Rights and Fundamental Freedoms while
Countering Terrorism, Martin Scheinin,
has reinforced this general critique of the
government’s conflation of religion and
terrorism, noting that the United States
should “not act in a manner which might
be seen as advocating the use of race and
religion for the identification of persons as
terrorists.”304

Arun Kundnani, Open Society Institute
Fellow and author of Spooked: How Not
to Prevent Violent Extremism, has done
extensive research on the effects of antiradicalization policies in the U.K. and, more
recently, in the United States. In an interview
with CHRGJ, he explained,
“When you unpack the concept of
radicalization, it tends to involve some

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IV. Recommendations and Concluding Observations

The United States must abide by its
international human rights obligations and
must ensure the rights detailed above to all
within its territory or under its jurisdiction in
a non-discriminatory manner. The U.S. must
also provide an effective remedy for human
rights violations.305 It has thus far proved
impossible for persons who have suffered
rights violations as a result of the practices
described in this Report to gain redress.306
To abide by these international human
rights obligations, CHRGJ urges the U.S.
government to act immediately to implement
the following recommendations with respect
to law enforcement and counterterrorism
investigations, particularly those that involve
the use of extensive surveillance and paid
informants without particularized suspicion
of criminal activity:

use of informants in counterterrorism
investigations.
 Congress should pass the End
Racial Profiling Act, proposed federal
legislation to ban racial profiling by law
enforcement.
 The DOJ should revise its own June
2003 Federal Guidance on Racial
Profiling to eliminate the border and
national security loophole, to include a
ban on profiling based on religion and
ethnic origin, and to ensure that the
guidance is enforceable.
 The DOJ should open an investigation
into all terrorism-related cases involving
the use of an informant since September
11, 2001, with a view towards examining
oversight and actions of informants,
the circumstances under which they
are deployed, the types of information
they gather, and their role in instigating
terrorist plots.

 The U.S. government should reject
“radicalization” theories that threaten the
rights to freedom of religion, opinion, and
expression, and should put an end to the
preventative policing and prosecution
methods that rely on such theories.18

 Attorney General Holder should issue
new guidelines to replace the Mukasey
Guidelines for Domestic FBI Operations
(2008), the 2006 Gonzales Guidelines
on Confidential Human Sources, and
the 2002 Ashcroft Guidelines on FBI
Undercover Operations.
These new
guidelines should eliminate authorization
for the pre-investigation “assessment”

 Congress should hold hearings on the
impact of counterterrorism policies
on Muslim, Arab, South Asian, and
Middle Eastern communities in the
United States. These hearings should
include consideration of current intelligence-gathering tactics and the

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stage.
Further, the new guidelines
should ensure that:

of racial profiling to conform with the
requirements of ICERD; that it make all
domestic anti-terrorism legislation and
action fully consistent with human rights
standards; that it devises specific programs
aimed at countering growing Islamophobic
and xenophobic trends in society; and that
it pass the End Racial Profiling Act and
comprehensive state legislation prohibiting
racial profiling.

…… The FBI and other law enforcement
agencies do not open investigations,
including by using informants, against
individuals absent particularized
suspicion of wrongdoing.
…… The FBI and other law enforcement
agencies are not allowed to target
individuals and communities through
surveillance, informants, or other
information-gathering
techniques
based on race, religion, or national
origin, or political and religious
statements or beliefs.

Since September 11, 2011, the government
has targeted Muslims in America in a
variety of particularly intense and broad
ways, including by sending paid untrained
informants into mosques and Muslim
communities. This practice has led to a
number of high-profile terrorism prosecutions
that support the government’s claim that we
face a “homegrown threat.” A closer look
at the government practices underlining
a number of these cases raises serious
questions about the U.S. government’s role
and purpose in inciting and devising these
plots in Muslim communities. To abide by
its obligations to ensure fundamental human
rights, the U.S. government must put an end
to this discriminatory targeting of Muslim
communities.

…… The FBI is explicitly and consistently
prohibited from using informants to
engage in entrapment or inducement
to commit crimes.
 The NYPD should revise its guidelines
to only allow for investigations when
there is an articulable and reasonable
suspicion of criminal activity.
CHRGJ additionally urges the U.S.
government to implement the January 2011
recommendations of the U.N. Working
Group on the U.S. Universal Periodic
Review (UPR).308 Among other things, the
UPR Working Group recommended that
the United States amend its definition

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© Lyric R. Cabral. Zurata Duka (center) and Faten Shnewer (right) speak at a rally in Foley Square, near New
York City’s federal courthouses, about their sons’ involvement in the Fort Dix Five case. Alicia McWilliams (back
left) watches on stage, awaiting her opportunity to speak on behalf of her nephew, David Williams, and the
Newburgh Four case.

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ENDNOTES
1
The term “targeting” as used in this Report encompasses differential treatment of individuals or groups either
intentionally or in effect, both of which raise concerns under international human rights law prohibitions on
discrimination, which will be more fully explored later in the Report.
2
This Report is concerned primarily with informants, and not cooperators or paid undercover officers. See David A.
Harris, Law Enforcement and Intelligence Gathering in Muslim and Immigrant Communities After 9/11, 34 N.Y.U
Rev. L. & Soc. Change 123, 128 (2010) (distinguishing informants who are under the control of law enforcement
from informants who approach law enforcement with information of their own volition, and noting that when law
enforcement uses the former in mosques, it “deliberately targets these institutions and the individuals within them
for investigation.”); Center on Law and Security, NYU School of Law, Terrorist Trial Report Card, September
11, 2001-September 11, 2009 42 (2009), available at http://www.lawandsecurity.org/Portals/0/documents/02_
TTRCFinalJan142.pdf [hereinafter 2009 CLS Terrorist Trial Report Card] (explaining that though technically
“the difference between an informant and a cooperator largely depends on whether or not a formal agreement of
cooperation has been signed,” the more colloquial framework distinguishes between the two based on whether the
individual ever intended to aid any alleged terrorist activity, with “informants” referring to those without any such intent);
Interview with Mike German (Apr. 5, 2011) (on file with CHRGJ) [hereinafter CHRGJ Interview with Mike German].
3
According to the Center on Law and Security (CLS), since September 2001, informants have been used in 210
terrorism prosecutions overall, and in 97 (62 percent) of the most high-profile terrorism prosecutions. CLS reports
998 terrorism prosecutions since September 2001. 2009 CLS Terrorist Trial Report Card, supra note 2 at 46;
Center on Law and Security, NYU School of Law, Terrorist Trial Report Card, September 11, 2001-September
11, 2010 4, 20 (2010), available at http://www.lawandsecurity.org/Portals/0/documents/01_TTRC20101.pdf.
CLS’s Karen Greenberg has commented: “The conviction rate for those cases that involved informants is almost
a hundred percent; it’s 97 percent. So that gives you a kind of sense of how important [informants] are and
how useful they’ve been.” Anjali Kamat and Jackie Soohen, Entrapment or Foiling Terror? FBI’s Reliance on
Paid Informants Raises Questions about Validity of Terrorism Cases, Democracy Now!, Oct. 6, 2010, available
at http://www.democracynow.org/2010/10/6/entrapment_or_foiling_terror_fbis_reliance [hereinafter Entrapment
or Foiling Terror]. A March 2011 CLS press release noted that 128 national security / terrorism cases (some
multi-defendant) have involved informants, though it seems their method of counting cases has changed since the
2009 TTRC, making it difficult to use the data for any analysis about the rates of reliance on informants. Center for
Law and Security, TTRC Update: Informant Cases & the Entrapment Defense (Mar. 24, 2011) [hereinafter March
2011 CLS TTRC Update].

Celeste Katz & Corky Siemaszko, Heroes Honored after Foiling Terror Plot to Bomb Riverdale Synagogues,
N.Y. Daily News, May 22, 2009, available at http://articles.nydailynews.com/2009-05-22/news/17922274_1_
james-cromitie-synagogues-plot; Sean Alfano, FBI: Army Base ‘Dodged A Bullet’: Authorities Arrest Six ‘Islamic
Militants’ Who Aimed To Kill Soldiers At New Jersey’s Fort Dix, CBS News, May 8, 2008, available at http://
www.cbsnews.com/stories/2007/05/08/terror/main2773084.shtml; Craig Horowitz, Anatomy of a Foiled Plot:
Two would-be Bombers of the Herald Square Subway Station Find that Three is a Crowd, N.Y. Mag., May 21,
2005, available at http://nymag.com/nymetro/news/features/10559/ [hereinafter Horowitz, Anatomy of a Foiled
Plot].
4

Former FBI Agents James Wedick and Mike German have vocally criticized the FBI’s use of surveillance and
informants. See Entrapment or Foiling Terror, supra note 3 (quoting Wedick as saying, “You just can’t continue
to, you know, to get a select group of people who are responsible for petty crimes, give them huge amounts
of money, and send them into a small minority community, desperate because of the recession and work not
being there, and suggesting people commit crimes, and not expect an explosion to happen, because they’re
desperate for money and the informant is offering huge rewards.”); CHRGJ Interview with Mike German, supra
note 2 (“Whether these cases could survive an entrapment defense is not the relevant question. It’s whether
it’s appropriate for the government acting in a way where they’re aggrandizing the nature of the threat. It’s just
difficult to understand what the legitimate government interest is in these cases.”). See also FBI Expands Probe
5

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into Antiwar Activists, Democracy Now!, Dec. 23, 2010, available at http://www.democracynow.org/2010/12/23/
fbi_expands_probe_into_antiwar_activists (quoting German as saying, “We’re interested in a lot of different new
FBI programs. There’s a Domain Management program, which purports to allow the FBI to collect racial and
ethnic demographic information and map our communities across the nation by race and ethnicity”).
6
The Albany Common Council has passed a resolution calling on the Department of Justice to review two
convictions of Muslim men, Yassin Aref and Mohammed Hossain, where entrapment was at issue. Jordan CarleoEvangelist, Albany council calls on feds to re-open Muslims’ case, Times Union, Apr. 6, 2010, available at http://
blog.timesunion.com/localpolitics/6578/albany-council-calls-on-feds-to-re-open-muslims-case/; Entrapment or
Foiling Terror, supra note 3 (quoting Albany Common Council Member Dominick Calsolaro as saying, “It seems
like, you know, they did this, these actions, because they had to show that they were being—you know, the federal
government is trying to be tough on terrorism. But the fact that if you have to send in, you know, an agent
provocateur, whatever you want to call them, in order to entrap someone, who’s not doing anything illegal to begin
with, I mean, where is this going? And then, where does this stop?”).

See Alisa Chang, Four Men Convicted In Plot to Bomb New York Synagogues, WNYC, Oct. 18, 2010, available
at http://www.wnyc.org/articles/wnyc-news/2010/oct/18/four-men-convicted-plot-bomb-new-york-synagogues/
(quoting Karen Greenberg with CLS about the Newburgh Four case, “There were questions even at the end of
the trial about who exactly had been the initator [sic] . . . whether it had been the informant or whether it had been
one of the four accused.”); Guy Lawson, The Fear Factory, Rolling Stone, Feb. 7, 2008, at 62, available at http://
guylawson.com/pdf/rollingstone/fearfactory.pdf (quoting David Cole as saying, “when you’re pressing people to
undertake conduct they would have never undertaken without an informant pushing the along, there is a real question
if you’re creating crime, not preventing crime.”); Ira Glass & Petra Bartosciewicz, Arms Trader 2009, This American
Life, Aug. 7, 2009, available at http://www.thisamericanlife.org/radio-archives/episode/387/arms-trader-2009
[hereinafter Glass & Bartosciewicz, Arms Trader 2009] (quoting Aziz Huq discussing the Newburgh Four case,
“basically what you have here is the most recent case in a series of cases in which an alleged terrorism conspiracy
is initiated and pushed along by a government informant”); Council on American Islamic Relations (CAIR), The
FBI’s Use of Informants, Recruitment and Intimidation within Muslim Communities, available at http://ca.cair.com/
download.php?f=/downloads/CAIR_FBI_Abuses_Annotated_Source_List--Articles_and_Cases.pdf [hereinafter
CAIR, The FBI’s Use of Informants, Recruitment and Intimidation within Muslim Communities] (“The FBI has
used informants and agents provocateurs to infiltrate mosques, befriend and provoke worshippers into making
incriminating statements, or induce vulnerable Muslims into discussing illicit activity.”); Stephen Downs, Victims of
America’s Dirty Wars: Tactics and Reasons from COINTELPRO to the War on Terror (2011), available at http://
www.projectsalam.org/downloads/Victims_of_Americas_Dirty_Wars.pdf (noting that, in the context of the “War
on Terror,” “[p]reemptive prosecution involves not only convicting innocent defendants of contrived or fake crimes,
but also twisting and breaking procedural rules in order to convince a jury, the media, and the American public that
the innocent defendants are really guilty and dangerous.”); National Radio Project, Presumed Guilty: American
Muslims and Arabs, Mar. 22, 2011, available at http://www.radioproject.org/2011/03/presumed-guilty-americanmuslims-and-arabs/ (interviewing Veena Dubal, Asian Law Caucus National Security and Civil Rights Program
Staff Attorney, Dominick Calsolaro, Albany Common Council Member, family members of defendants charged with
terrorism-related offenses, Fred Korematsu, and others); Wadie E. Said, The Terrorist Informant, 85 Wash. L. Rev.
687 (2010); Thomas Cincotta, From Movements to Mosques, Informants Endanger Democracy, Public Eye Mag.
(Summer 2009), available at http://www.publiceye.org/magazine/v24n2/movements-to-mosques.html. See also
Jon Sherman, A Person Otherwise Innocent: Policing Entrapment in Preventative, Undercover Counterterrorism
Investigations, 11 U. Pa. J. Const. L. 1475 (2009); Harris, supra note 2.
7

Graham Rayman, Were the Newburgh 4 Really Out to Blow Up Synagogues? A Defendant Finally Speaks
Out, The Village Voice, Mar. 2, 2011, available at http://www.villagevoice.com/2011-03-02/news/were-thenewburgh-4-really-out-to-blow-up-synagogues/ [hereinafter Rayman, Were the Newburgh 4 Really Out to Blow
Up Synagogues?]; Entrapment or Foiling Terror, supra note 3; PBS, Before the Fact: The Fort Dix Five, PBS
Need to Know, Sep. 10, 2010, available at http://video.pbs.org/video/1588640291/#; Lawson, supra note 7;
Rone Tempest, In Lodi Terrorism Case, Intent Was the Clincher, L.A. Times, May 1, 2006, available at http://
articles.latimes.com/2006/may/01/local/me-lodi1; Amanda Ripley, The Fort Dix Verdict: A Victory for Pre-emptive
Prosecutions, Time.com, Dec. 23, 2008, available at http://www.time.com/time/nation/article/0,8599,1868370,00.
html#ixzz1KNGCkXK5 (“Since 9/11, the FBI has begun using legions of Muslim or Arabic informants, many of
8

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them illegal immigrants with criminal records, to try to root out radicals before they strike. But the strategy has led
to accusations that the informants are themselves hatching the crime, a charge that hung over the entire Fort Dix
proceedings.”). The American Civil Liberties Union of Southern California and the Council on American Islamic
Relations recently brought suit on behalf of three Muslim plaintiffs against the FBI, alleging the FBI of paying Craig
Monteilh to survey, infiltrate, and record conversations in mosques. Complaint, Yassir Fazaga v. Federal Bureau
of Investigation, No. SA CV 11-00301 (C.D.Ca. Feb. 22, 2011). See also Shan Li, FBI violated 1st Amendment
rights of Muslims, suit alleges, L.A. Times, Feb. 24, 2011, available at http://articles.latimes.com/2011/feb/24/
local/la-me-fbi-muslims-20110224; Jennifer Medina, Suit Accuses F.B.I. of Spying at Mosques in California, N.Y.
Times, Feb. 24, 2011, available at http://www.nytimes.com/2011/02/25/us/25mosque.html. Monteilh has himself
sued the FBI. Scott Glover, Suit by Alleged Informant Says FBI Endangered His Life, L.A. Times, Jan. 23, 2010,
available at http://articles.latimes.com/2010/jan/23/local/la-me-informant23-2010jan23. The use of informants
has been criticized outside of the context of counterterrorism as well. See, e.g., Alexandra Natapoff, Snitching: The
Institutional and Communal Consequences, 73 U. Cinn. L. Rev. 645, 645 (2004) (“The use of criminal informants
in the U.S. justice system has become a flourishing socio-legal institution unto itself. Characterized by secrecy,
unfettered law enforcement discretion, and informal negotiations with criminal suspects, the informant institution
both embodies and exacerbates some of the most problematic features of the criminal justice process.”).
9
Former FBI Agent Mike German—currently the Policy Counsel on National Security with the American Civil
Liberties Union—points out that unlike officers, informants are untrained, and pose a substantially greater risk of
violating the rights of those they investigate. CHRGJ Interview with Mike German, supra note 2.

Natapoff, supra note 8, at 651-52 (“[A]n informant provides information about someone else’s criminal conduct
in exchange for some government-conferred benefit, usually lenience for his own crimes, but also for a flat fee, a
percentage of the take in a drug deal, government services, preferential treatment, or lenience for someone else”).
See also Entrapment or Foiling Terror, supra note 3; Center for Human Rights and Global Justice, Asian American
Legal Defense and Education Fund, Under the Radar: Muslims Deported, Detained, and Denied on Unsubstantiated
Terrorism Allegations 13-14 (2011) [hereinafter Under the Radar].

10

This Report uses the terms “American Muslims” and “Muslim Americans” interchangeably. These terms are
intended to cover both citizens and non-citizens.

11

12

United States v. Cromitie, No. 09 Cr. 558 (S.D.N.Y.).

13

United States v. Shnewer, No 07 Cr. 459 (D.N.J.).

14

United States v. Siraj, No. 05 Cr. 104 (E.D.N.Y.).

15
See Under the Radar, supra note 10; Center for Human Rights and Global Justice, Americans on Hold:
Profiling, Citizenship, and the “War on Terror” (2007) [hereinafter Americans on Hold]; Documentary: Americans
on Hold – Profiling, Prejudice, and National Security (Center for Human Rights and Global Justice 2010); Center
for Human Rights and Global Justice, Irreversible Consequences: Racial Profiling and Lethal Force in the “War
on Terror” 19 (2006), available at http://www.chrgj.org/docs/CHRGJ%20Irreversible%20Consequences%20
June%202006.pdf [hereinafter Irreversible Consequences].
16

See supra notes 5-8.

Although this Report highlights the government’s cases against the Newburgh Four, Fort Dix Five, and Shahawar
Siraj Matin, these cases are in many ways not exceptional. Our research came across at least 20 other terrorism
prosecutions in recent years against Muslim defendants that involved some combination of paid informants,
selection for investigation based on perceived religious identity, or a plot that was created by the government
(target selected by the FBI, fake munitions provided by government agents, informant or other government agents
pressured defendants into committing acts for which they were eventually prosecuted, etc.). These prosecutions
include Sami Samir Hassoun (Chicago, IL), Antonio Martinez (Baltimore, MD), Yassin Aref and Mohammed
Hossain (Albany, NY), the Liberty City Seven (Miami, FL), Hamid Hayat and Umer Hayat (Lodi, CA), Mohamed
Osman Mohamud (Portland, OR), Hosam Smadi (Dallas, TX), Tarik Shah (New York, NY), the Detroit Ummah
17

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case (Detroit, MI), Russell Defreitas, Abdul Kadir, Abdul Nur, Donald Nero, and Kareem Ibrahim (New York, NY),
Sayed Haris Ahmed and Ehsanul “Shifa” Sadequee (Atlanta, GA), and Derrick Shareef (Rockwood, IL). Similar
tactics were used in the case against Hemant Lakhani (Newark, NJ), who is not Muslim. Project SALAM has an
online database of post-September 11, 2001 terrorism-related prosecutions and convictions of Muslims, which
is quite a bit more expansive than the topic of this Report. It is available at http://www.projectsalam.org/database.
html. See generally Downs, supra note 7. See also Said, supra note 7, at 689 (noting in discussion of Batiste,
Hayat, Lahkani, and Siraj that, “regardless of whether an informant’s conduct legally constitutes entrapment,
several of the post-9/11 cases highlight situations in which the existence of a real threat to national security was
questionable”); Sherman, supra note 7, at 1500 (noting in discussion of Batiste, Hayat, Lahkani, and Siraj that
in each case the FBI initiated the contact, provided equipment or money, incited the defendants to participate in
the plot, contributed to or completely designed the plot, cultivated close relationships with the defendant, and
encouraged defendants when they resisted); Lawson, supra note 7 (stating that “a closer inspection of the cases
brought by [Joint Terrorism Task Forces] reveals that most of the prosecutions had one thing in common: The
defendants posed little if any demonstrable threat to anyone or anything”); Entrapment or Foiling Terror, supra
note 3.
Additional information on these cases can be found at the following sources.
Sami Samir Hassoun (Chicago, IL): Andy Grimm, Annie Sweeney and Jeremy Gorner, Lebanese immigrant
charged in Wrigleyville bomb plot, Chi. Trib., Sep. 20, 2010, available at http://articles.chicagotribune.
com/2010-09-20/news/ct-met-wrigleyville-bomb-plot-20100920_1_car-bombs-phony-bomb-terrorism-plot;
Sophia Tareen, Sami Samir Hassoun Arrested In Alleged Chicago Bomb Plot, Huffington Post, Sep. 20, 2010,
http://www.huffingtonpost.com/2010/09/20/sami-samir-hassoun-arrest_n_732120.html.
Antonio Martinez (Baltimore, MD): Ben Nuckols, Lawyer: FBI entrapped Baltimore bomb plot suspect, Salon,
Dec. 13, 2010, http://www.salon.com/news/feature/2010/12/13/us_recruiting_center_bomb_plot_1; Maria
Glod, Bomb Plot Case May Be Harbinger, Wash. Post, Dec. 14, 2010, available at http://www.washingtonpost.
com/wp-dyn/content/article/2010/12/13/AR2010121305708.html.
Yassin Aref and Mohammed Hossain (Albany, NY): Paul Gundahl, Suspicion, Acceptance in Wake of Terror
Trial, Times Union (Albany), Oct. 12, 2006, at B1, available at http://albarchive.merlinone.net/mweb/wmsql.wm
.request?oneimage&imageid=6362940; America at a Crossroads – Security Versus Liberty: The Other War
(PBS television broadcast Apr. 20, 2007,) information available at http://www.pbs.org/weta/crossroads/about/
show_security_vs_liberty.html.
The Liberty City Seven (Miami, FL): “Aspirational Rather than Operational”–7 Arrested in Miami Terror Plot
(Democracy Now! television broadcast, Jun. 26, 2006) available at http://www.democracynow.org/2006/6/26/
aspirational_rather_than_operational_7_arrested; Amanda Ripley, Preemptive Terror Trials: Strike Two, Time, Dec.
13, 2007, available at http://www.time.com/time/nation/article/0,8599,1694430,00.html.
Hamid Hayat and Umer Hayat (Lodi, CA): Amy Waldman, Prophetic Justice, The Atlantic, Oct. 2006,
available at http://www.theatlantic.com/magazine/archive/2006/10/prophetic-justice/5234/; PBS, Frontline, The
Enemy Within: The Terror Case in Lodi, California, http://www.pbs.org/wgbh/pages/frontline/enemywithin/lodi/
(last visited May 12, 2011).
Mohamed Osman Mohamud (Portland, OR): Dina Temple-Raston, Alleged Portland Bomber to Claim
Entrapment, NPR, Nov. 30, 2010, http://www.npr.org/2010/11/30/131704930/alleged-portland-bomber-toclaim-entrapment; Joel Millman and Evan Perez, Teen in Oregon Bomb Sting to be Arraigned, Wall St. J., Nov.
29, 2010, available at http://online.wsj.com/article/SB10001424052748704700204575642900598623706.
html.
Hosam Smadi (Dallas, TX): Jason Trahan, Dallas bombing plotter Hosam Smadi sentenced to 24 years in
prison, Dallas Morning News, Oct. 19, 2010, available at http://www.dallasnews.com/news/community-news/
dallas/headlines/20101019-Dallas-bombing-plotter-Hosam-Smadi-sentenced-2540.ece; Robert Wilonsky, For
Trying to Blow Up Fountain Place, Hosam Smadi’s Sentenced to 24 Years in Prison, Dallas Observer Blogs,
Oct. 19, 2010, http://blogs.dallasobserver.com/unfairpark/2010/10/for_trying_to_blow_up_fountain.php#.
Tarik Shah (New York, NY): Alan Feuer, Bronx Man Pleads Guilty In Terror Case, N.Y. Times, Apr. 5, 2007,
available at http://select.nytimes.com/gst/abstract.html?res=F30C12F83D5B0C768CDDAD0894DF404482&
partner=rssnyt&emc=rss; Alan Feuer, Tapes Capture Bold Claims Of Bronx Man In Terror Plot, N.Y. Times, May 8,
2007, available at http://www.nytimes.com/2007/05/08/nyregion/08terror.html.
The Detroit Ummah case (Detroit, MI): Margaret Lucas Agius, Eleven members/associates of Ummah
charged with federal violations, Detroit Examiner, Oct. 28, 2009, available at http://www.examiner.com/legal-

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news-in-detroit/eleven-members-associates-of-ummah-charged-with-federal-violations; Steven Gray, Why Was
A Controversial Imam Shot 20 Times?, Time, Feb. 1, 2010, available at http://www.time.com/time/nation/
article/0,8599,1958229,00.html.
Russell Defreitas, Abdul Kadir, Abdul Nur, Donald Nero, and Kareem Ibrahim (New York, NY): A.G. Sulzberger,
Lawyers Dispute Suspects’ Intent in J.F.K. Bomb Plot Trial, N.Y. Times, Jun. 30, 2010, available at http://www.
nytimes.com/2010/07/01/nyregion/01terror.html?ref=russellmdefreitas; Tom Hays, Russell Defreitas, JFK
Cargo Handler, Sentenced To Life For Bomb Plot, Huffington Post, Feb. 17, 2011, http://www.huffingtonpost.
com/2011/02/17/russell-defreitas-jfk-car_n_824793.html (last visited May 11, 2011).
Sayed Haris Ahmed and Ehsanul “Shifa” Sadequee (Atlanta, GA): PBS, Frontline World, Canada: The Cell
Next Door, (Television broadcast, Jan. 30, 2007), transcript available at http://www.pbs.org/frontlineworld/about/
episodes/602_transcript.html; Ashley Hays, Georgia men get lengthy prison time for supporting terrorists, CNN,
Dec. 14, 2009, http://articles.cnn.com/2009-12-14/justice/terror.sentence_1_terrorist-sadequee-and-ahmedsyed-haris-ahmed?_s=PM:CRIME.
Derrick Shareef (Rockwood, IL): Lawson, supra note 7; Pierre Thomas, Lone Wolf Charged with Plotting Attack
During Christmas Rush, ABCNews, Dec. 8, 2006, http://abcnews.go.com/TheLaw/story?id=2710776&page=1
(last visited May 11, 2011); Illinois Terror Suspect Pleads Guilty, USA Today, Nov. 28, 2007, available at http://
www.usatoday.com/news/nation/2007-11-28-illininois-terror-plea_N.htm.
Hemant Lakhani (Newark, NJ): Glass & Bartosciewicz, Arms Trader 2009, supra note 7; Robert Hanley, Man
Accused of a Scheme to Sell Missiles Praised bin Laden on Tapes, N.Y. Times, Jan. 9, 2005, available at http://
www.nytimes.com/2005/01/09/nyregion/09missile.html?pagewanted=print&position=.
Although states have an obligation under the right to life to protect national security, they must not do so at the
expense of their other human rights obligations, for example complying with the rights to freedom of expression,
opinion, and religion under Articles 18 and 19 of the ICCPR. See supra notes 292 and 293.

18

Mitchell Silber and Arvin Bhatt, N.Y.C. Police Dep’t, Radicalization in the West: The Homegrown Threat
(2007) [hereinafter Silber & Bhatt, NYPD Radicalization Report] a 2007 report by the NYPD, exemplifies these
assumptions.
19

Faiza Patel, Brennan Center for Justice, Rethinking Radicalization (2011), available at http://www.brennancenter.
org/content/resource/rethinking_radicalization [hereinafter Patel, Rethinking Radicalization] (citing MI5 study
concluding that “there is no single pathway to extremism” all those studied “had taken strikingly different journeys
to violent extremist activity;” citing former CIA case officer Marc Sageman who analyzed 500 cases and concluded
that “[o]ne cannot simply draw a line, put markers on it and gauge where people are along this path to see
whether they are close to committing atrocities;” citing Rand Corporation study based on 14 years of research
which was unable to identify the subset of individuals who would commit violence, which was “often a matter of
happenstance.”).

20

21

See infra Part III.

This Report focuses on discriminatory law enforcement practices against Muslims in the U.S., recognizing that
the conflation of race, religion, and national origin has resulted in a much larger category of persons considered
“Muslim” than only those who adhere to Islam, including non-Muslim members of Middle Eastern, South Asian,
and Arab communities. See, e.g., Irreversible Consequences, supra note 15, at 20 (analyzing shoot to kill policies
for alleged suicide bombers and the impacts on Muslims and those perceived to be Muslim); Americans on Hold,
supra note 15, at 35 (documenting the FBI name check process in the context of the confluence of national
security and immigration policy, and the impacts on Muslim, Middle Eastern, South Asian, and Arab communities);
Under the Radar, supra note 10, at 1 (documenting the U.S. government’s “deployment of lower evidentiary
standards and lack of due process guarantees in the immigration system against Muslims to further marginalize
this targeted group in the name of national security”); Muslim Advocates, Unreasonable Intrusions: Investigating
the Politics, Faith & Finances of Americans Returning Home (2009), available at http://www.muslimadvocates.org/
img/Interrogation_Map2.jpg [hereinafter Unreasonable Intrusions: Investigating the Politics, Faith & Finances of
Americans Returning Home]; Asian Law Caucus, Returning Home: How U.S. Government Practices Undermine Civil
Rights At Our Nation’s Doorsteps (2009) (hereinafter Returning Home), available at http://www.asianlawcaucus.
org/wp-content/uploads/2009/04/Returning%20Home.pdf; Rights Working Group, Faces of Racial Profiling: A
22

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Report from Communities Across America 24-34 (2010) [hereinafter RWG Racial Profiling Report], available
at http://www.rightsworkinggroup.org/sites/default/files/rwg-report-web.pdf (“Following the tragic events of Sept.
11, 2001, members of Arab, Middle Eastern, Muslim and South Asian communities became automatically suspect
as the government, in the name of national security, implemented programs and policies that profiled individuals
of these communities based on their perceived race, ethnicity, religion or national origin. Members of these
communities were increasingly and disproportionately placed under surveillance, stopped, searched, interrogated,
detained and labeled ‘terrorism suspects.’ The government also began aggressively using civil immigration
laws, criminal laws and criminal procedure in a sweeping and discriminatory manner to target members of these
communities.”); Shirin Sinnar, Questioning Law Enforcement: The First Amendment and Counterterrorism
Interviews, 77 Brook. L. Rev. (forthcoming 2011) (discussing FBI and Customs and Border Protection interviews
of Muslims based on and inquiring about political. religious, and cultural expressions and associations); Muneer
I. Ahmad, A Rage Shared by Law: Post-September 11 Racial Violence as Crimes of Passion, 92 Cal. L. Rev.
1259 (2004) (“The physical violence exercised upon the bodies of Arabs, Muslims, and South Asians has been
accompanied by a legal and political violence toward these communities. . . . Taken together, the multiple assaults
on the bodies and rights of Arabs, Muslims, and South Asians produce a psychological violence as well and
reracialize the communities they target as “Muslim-looking” foreigners unworthy of membership in the national
polity.”); Tom Lininger, Sects, Lies, and Videotape: The Surveillance and Infiltration of Religious Groups, 89 Iowa
L. Rev. 1201, 1204-1206 (2004) (noting that “mosques have occupied most of the F.B.I.’s attention” since 2002
and that “the F.B.I. has used a variety of investigative techniques to monitor worshippers at mosques . . . [including]
confidential informants, undercover agents, surveillance cameras, flyovers, and subpoenas for phone records”
(footnotes omitted)). See also Murad Hussain, Defending the Faithful: Speaking the Language of Group Harm
in Free Exercise Challenges to Counterterrorism Profiling, 117 Yale L.J. 920, 926 (2008) [hereinafter Hussain,
Defending the Faithful]; Patel, Rethinking Radicalization, supra note 20.
See Thomas Cincotta, Political Research Associates, Manufacturing the Muslim Menace: Private Firms, Public
Servants, and the Threat to Rights and Security 1 (2011): “A nine-month investigation ... finds that government
agencies responsible for domestic security have inadequate mechanisms to ensure quality and consistency
in terrorism preparedness training provided by private vendors; public servants are regularly presented with
misleading, inflammatory, and dangerous information about the nature of the terror threat through highly politicized
seminars, industry conferences, trade publications, and electronic media. In place of sound skills training and
intelligence briefings, a vocal and influential sub-group of the private counterterrorism training industry markets
conspiracy theories about secret jihadi campaigns to replace the U.S. Constitution with Sharia law, and effectively
impugns all of Islam—a world religion with 1.3 billion—adherents as inherently violent and even terroristic.” Earlier
this year, it became public that the NYPD was using a film called The Third Jihad in training in its officers. The
Village Voice described it as “a spectacularly offensive smear of American Muslims. . . . It is 72 minutes of
gruesome footage of bombing carnage, frenzied crowds, burning American flags, flaming churches, and seething
mullahs.” Tom Robbins, NYPD Cops’ Training Included in Anti-Muslim Horror Flick: Experiments in Terror, The
Village Voice, Jan. 19, 2011, available at http://www.villagevoice.com/2011-01-19/columns/nypd-cops-trainingincluded-an-anti-muslim-horror-flick/. See also Arun Venugopal, NYPD Asked to Explain Alleged Screening of
Anti-Muslim Film, WNYC, Mar. 22, 2011, available at http://www.wnyc.org/blogs/wnyc-news-blog/2011/mar/22/
nypd-asked-explain-screening-anti-muslim-film/ (“Muslim groups and elected officials are calling on the NYPD to
explain why it allegedly screened a controversial documentary known as ‘The Third Jihad’ for trainees.”).
23

See, e.g., Scott Horton, What Makes a Domestic Terrorist, The CenterLine: The Blog of the Center on Law
Security, Jan. 12, 2011, available at http://centerlineblog.org/2011/01/12/online-open-forum-after-tucson/
(quoting several terrorism experts describing cases where terroristic acts by non-Muslims were not treated as
domestic terrorism); Sahar Aziz, Why Isn’t Jared Lee Loughner a Homegrown Terrorist?, truthout, Jan. 12, 2011,
available at http://archive.truthout.org/why-isnt-jared-lee-loughner-a-homegrown-terrorist66783 (questioning why
Jared Loughner’s politically motivated shooting of U.S. Rep. Gabrielle Giffords has not been framed as domestic
terrorism).
24

and

Alejandro J. Beutel, Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States 2 (last
updated April 18, 2011), available at http://www.mpac.org/assets/docs/publications/MPAC-Post-911-Terrorism-Data.pdf; CHRGJ Interview with Mike German, supra note 2 (citing several cases). Research has shown
that Muslims as a group are not more likely than others to commit terrorist acts. According to the Southern

25

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Poverty Law Center, in January 2011 alone “a neo-Nazi was arrested headed for the Arizona border with a dozen
homemade grenades; a terrorist bomb attack on a Martin Luther King Jr. Day parade in Spokane, Wash., was
averted after police dismantled a sophisticated anti-personnel weapon; and a man who officials said had a long
history of antigovernment activities was arrested outside a packed mosque in Dearborn, Mich., and charged
with possessing explosives with unlawful intent. That’s in addition, the same month, to the shooting of U.S.
Rep. Gabrielle Giffords in Arizona, an attack that left six dead and may have had a political dimension.” None
of the suspects arrested in any of these incidents was Muslim. Mark Potok, Southern Poverty Law Center, The
Year in Hate and Extremism, Intelligence Report No. 141 (Spring 2011), available at http://www.splcenter.org/
get-informed/intelligence-report/browse-all-issues/2011/spring/the-year-in-hate-extremism-2010. See also David
Dayen, Sheriff Lee Baca, Only Law Enforcement Witness at King’s Muslim Radicalization Hearings, Speaks
Out, Firedoglake, Mar. 9., 2011, http://news.firedoglake.com/2011/03/09/sheriff-lee-baca-only-law-enforcementwitness-at-kings-muslim-radicalization-hearings-speaks-out/ (“Since 9/11, 77 extremist efforts or attacks have
been carried out by non-Muslim extremists in the United States,” said [Los Angeles County Sheriff Lee] Baca. In
addition, of the last 10 terror plots attempted by Muslims, seven of them have been thwarted by Muslims coming
forward. ‘This is not a Muslim problem, it’s a people problem.’”).
26

See supra note 22.

See, e.g., Rupal Oza, Contrapuntal geographies of threat and security: the United States, India, and Israel,
25(1) Environment and Planning D: Society and Space 9 (2007).
27

28

See supra note 22.

29

See, e.g., Shinnar, supra note 22. See generally supra note 22.

30
See supra note 22. See also Americans on Hold, supra note 15, at 35. (describing how members of the Sikh
community have been targeted in part because they wear turbans, easily identifiable manifestations of their faith.
Amardeep Singh, Executive Director of the Sikh Coalition explained, “Our articles of faith and our national origin
have made us suspect—both for private and public actors. Our primary article of faith, the turban, is identified in
this country with terrorism.”).
31

Silber & Bhatt, NYPD Radicalization Report, supra note 19.

32

Patel, Rethinking Radicalization, supra note 20, at 1.

S. Comm. on Homeland Security and Gov’t Affairs, A Ticking Time Bomb: Counterterrorism Lessons from the
U.S. Government’s Failure to Prevent the Fort Hood Attack (2011) [hereinafter Fort Hood Report], available at
http://hsgac.senate.gov/public/_files/Fort_Hood/FortHoodReport.pdf.
33

Silber & Bhatt, NYPD Radicalization Report, supra note 19; Patel, Rethinking Radicalization, supra note 20;
Interview with Arun Kundnani, Open Society Institute Fellow (Apr. 6, 2011) (on file with CHRGJ) [hereinafter
CHRGJ Interview with Arun Kundnani] (“When you unpack the concept of radicalization, it tends to involve some
notion of ideology or ideas as the driver of violence, even though that is inconsistent with empirical research. This
points in the direction of criminalizing the ideas that are thought to motivate violence. There is a drive to say that
this set of ideas, this ideology is not entitled to freedom of expression.”).
34

35

See Patel, Rethinking Radicalization, supra note 20, at 2-3, 8-9.

The NYPD report, for example, notes at the same time that “A range of socioeconomic and psychological
factors have been associated with those who have chosen to radicalize include the bored and/or frustrated,
successful college students, the unemployed, the second and third generation, new immigrants, petty criminals,
and prison parolees” and that markers of the “pre-radicalization phase” include “middle-class backgrounds; not
economically destitute” and “[l]ittle, if any, criminal history.” Silber & Bhatt, NYPD Radicalization Report, supra
note 19, at 24, 25.

36

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37
See, e.g., id. at 33 (identifying “Wearing traditional Islamic clothing, growing a beard” as signs of the “selfidentification” phase of radicalization). See also Irreversible Consequences, supra note 15, at 7-8.

The Fort Hood report also requested that the FBI produce an in-depth analysis of the ideology of “violent
Islamist extremism.” Fort Hood Report, supra note 33, at 43.

38

The Extent of Radicalization in the American Muslim Community and that Community’s Response: Hearing
Before H. Homeland Security Comm., 112th Cong. (Mar. 10, 2011) [hereinafter King Hearing], available at http://
homeland.house.gov/hearing/hearing-%E2%80%9C-extent-radicalization-american-muslim-community-and-communitys-response%E2%80%9D. For the range of criticism, see, e.g., Mother of 9/11 Victim Condemns King
Hearing on Muslim ‘Radicalization,’ Democracy Now!, Mar. 11, 2011, available at http://www.democracynow.
org/2011/3/11/mother_of_9_11_victim_condemns; Letter from civil rights organizations to Rep. Peter King,
Mar. 7, 2011, available at http://talkingpointsmemo.com/documents/2011/03/progressive-groups-criticize-kingfor-targeting-muslims.php?page=1; Jeff Stein, Rep. Peter King’s plan for hearings on Muslim ‘radicalization’
draws criticism from all sides, Wash. Post, Jan. 21, 2011, available at http://voices.washingtonpost.com/
spy-talk/2011/01/rep_kings_radical_muslims_hear.html.
39

See, e.g., Jordy Yager, King hearing ‘counterproductive,’ L.A. County sheriff testifies, The Hill, Mar. 10, 2011,
available at http://thehill.com/blogs/blog-briefing-room/news/148651-king-hearing-counterproductive-la-countysheriff-testifies; David Dayen, Sheriff Lee Baca, Only Law Enforcement Witness at King’s Muslim Radicalization
Hearings, Speaks Out, Firedoglake, Mar. 9., 2011, http://news.firedoglake.com/2011/03/09/sheriff-lee-bacaonly-law-enforcement-witness-at-kings-muslim-radicalization-hearings-speaks-out/.
40

41
Exec. Office of the President, National Security Strategy 19 (2010), available at http://www.whitehouse.
gov/sites/default/files/rss_viewer/national_security_strategy.pdf; Implementing Recommendations of the 9/11
Commission Act of 2007, Pub. L. No. 110-53, 121 Stat. 266, § 2402(b) (2007) (codified at 6 U.S.C. § 347)
(designating DHS as lead agency in combating radicalization). The Radicalization and Extremist Messaging
Group of the National Counterterrorism Center (NCTC) (which is part of the office of the Director of National
Intelligence (DNI)), leads the Intelligence Community’s efforts on radicalization issues. See Nat’l Counterterrorism
Ctr., About Us, http://www.nctc.gov/about_us/about_nctc.html (last visited April 21, 2011); Nine Years after
9/11: Confronting the Terrorist Threat to the Homeland: Hearing Before the S. Comm. on Homeland Security
and Gov’t Affairs, 111th Cong. 1, 4 (2010) (statement for the record by Robert S. Mueller, III, Dir., Fed. Bureau
of Investigation) available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_
id=9cda2966-30ed-48e2-b3a9-7d40f0b617e5.
42
See David Cole & Jules Lobel, Less Safe, Less Free: Why America is Losing the War on Terror 1-19 (2007)
[hereinafter Cole & Lobel, Less Safe, Less Free]; Emily Berman, Brennan Center for Justice, Domestic Intelligence:
New Powers, New Risks 5-6, 13-15 (2011), available at http://brennan.3cdn.net/b80aa0bab0b425857d_
jdm6b8776.pdf [hereinafter New Powers, New Risks]. See also Glass & Bartosciewicz, Arms Trader 2009, supra
note 7 (last visited May 11, 2011).
43

Patel, Rethinking Radicalization, supra note 20, at 19-25.

44

See, e.g., Shinnar, supra note 22. See generally supra note 22.

See, e.g., Patel, Rethinking Radicalization, supra note 20, at 21-23, 30; CAIR, The FBI’s Use
Recruitment and Intimidation within Muslim Communities, supra note 7.

45

46

See generally Cole & Lobel, Less Safe, Less Free, supra note 42; Sherman, supra note 7.

47

See generally Sherman, supra note 7; Cole & Lobel, Less Safe, Less Free, supra note 42.

48

Berman, supra note 42, at 1-3.

55

of Informants,

TAR G E T E D AN D E NT R AP P E D

US Dep’t of Justice, Civil Rights Division, Guidance Regarding the Use of Race by Federal Law Enforcement
Agencies (2003), available at http://www.fletc.gov/training/programs/legal-division/downloads-articles-and-faqs/
downloads/doj-guidance/racialprofiling.pdf/download [hereinafter 2003 DOJ Racial Profiling Guidance].

49

US Dep’t of Justice, Attorney General’s Guidelines for Domestic FBI Operations 9 (2008) [hereinafter Mukasey
Guidelines] (discussing the FBI as “an intelligence as well as a law enforcement agency”). See also Cole & Lobel,
Less Safe, Less Free, supra note 42, at 1-19. The FBI’s legal authority, and the Attorney General’s authority stems
from a broadly worded federal statute. See 28 U.S.C. § 533 (2000) (“The Attorney General may appoint officials
- (1) to detect and prosecute crimes against the United States; (2) to assist in the protection of the person of
the President; (3) to assist in the protection of the person of the Attorney General; (4) to conduct such other
investigations regarding official matters under the control of the Department of Justice and the Department of
State as may be directed by the Attorney General.”).

50

See supra note 22. See also US Dep’t of Justice, Office of Inspector General, A Review of
Investigations of Certain Domestic Advocacy Groups (2010) [hereinafter 2010 DOJ OIG Review of
Investigations of Certain Domestic Advocacy Groups].

51

the
the

FBI’s
FBI’s

See supra notes 5-8. The government’s use of informants has also been criticized outside of the context of
counterterrorism policies. See, e.g., Natapoff, supra note 8.

52

Former FBI Agent Mike German—currently the Policy Counsel on National Security with the American Civil
Liberties Union—points out that unlike officers, informants are untrained, and pose a substantially greater risk of
violating the rights of those they investigate. CHRGJ Interview with Mike German, supra note 2.
53

Natapoff, supra note 8, at 651-52 (“[A]n informant provides information about someone else’s criminal conduct
in exchange for some government-conferred benefit, usually lenience for his own crimes, but also for a flat fee, a
percentage of the take in a drug deal, government services, preferential treatment, or lenience for someone else”).
See also Entrapment or Foiling Terror, supra note 3; Under the Radar, supra note 10, at 13-14.

54

US Dep’t of Justice, Office of the Inspector General, Special Report: The Federal Bureau of Investigation’s
Compliance with the Attorney General’s Investigative Guidelines 29-36 (2005) [hereinafter 2005 DOJ Report],
available at http://www.justice.gov/oig/special/0509/final.pdf; Berman, supra note 42, at 8-9.

55

56

Berman, supra note 42, at 8-9.

Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Book II:
Intelligence Activities and the Rights of Americans, S. Rep. No. 94-755, at 23-37.

57

58
2005 DOJ Report, supra note 53, at 29-36. At this time, Congress was considering enacting a legislative
charter reconstituting the FBI under a general statutory framework. After the Levi Guidelines were issued,
however, Congress left things where they stood.
59
Id. at 36 (citing FBI Oversight, Hearings Before the Subcommittee on Civil and Constitutional Rights of the
House Committee on the Judiciary, 95th Cong. pt. 1, 20-26 (1978) (internal quotation marks omitted)).
60

Berman, supra note 42.

See 2010 DOJ OIG Review
at 5-27.

61

of the

FBI’s Investigations

of

Certain Domestic Advocacy Groups, supra note 51,

See, e.g., Shan Li, Lawsuit contends FBI violated rights of hundreds of Muslim Americans, L.A. Times Blog,
Feb. 22, 2011, available at http://latimesblogs.latimes.com/lanow/2011/02/fbi-muslim-communities-lawsuit-aclu.
html?lanow; Li, supra note 8; Medina, supra note 8; Glover, supra note 8. See also Complaint, Yassir Fazaga v.
Federal Bureau of Investigation, No. SA CV 11-00301 (C.D. Ca. Feb. 22, 2011).

62

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TAR G E T E D AN D E NT R AP P E D

“Assessments may be carried out to detect, obtain information about, or prevent or protect against federal
crimes or threats to the national security or to collect foreign intelligence.” Mukasey Guidelines, supra note 50, at
V.A.1.
63

“Assessments…require an authorized purpose but not any particular factual predication.” Berman, supra note
42, at 2, 17, 22. See Jerome P. Bjelopera & Mark A. Randol, Congressional Research Service, The Federal
Bureau of Investigation and Terrorism Investigations, 1 (Apr. 27 2011) (noting the Guidelines and DIOGs provide
“the FBI more leeway to engage in proactive investigative work that does not depend on criminal predication (i.e.,
a nexus to past or future criminal activity).”).
64

Muslim Advocates, a California-based advocacy organization, filed a Freedom of Information Act request for
the DIOGs. See Muslim Advocates, Muslim Advocates seeks FBI Guidelines on Racial Profiling of Muslim
Americans, June 17, 2009, http://www.muslimadvocates.org/end_profiling/muslim_advocates_seeks_fbi_gui_1.
html (last visited Apr. 29, 2011). The DOJ released redacted excerpts of the DIOGs, available here: Muslim
Advocates, Department of Justice Continues to Cloak FBI Guidelines in Secrecy, Jan. 19, 2010, http://www.
muslimadvocates.org/latest/profiling_update/community_alert_seek_legal_adv.html (last visited Apr. 29, 2011).

65

66

67

Berman, supra note 42, at 24.
Id.

The Los Angeles Police Department’s experiment with geo-mapping of Muslim communities is most well-known.
Richard Winton, Jean-Paul Renaud, and Paul Pringle, LAPD To Build Data on Muslim Areas, L.A. Times, Nov. 9,
2007, at A1; Richard Winton and Teresa Watanabe, LAPD’s Muslim Mapping Plan Killed, L.A. Times, Nov. 15,
2007, at A1; see also Letter to Commander Michael P. Downing, Counter-Terrorism/Criminal Intel­ligence Bureau,
Los Angeles Police Department from Ranjana Natarajan & Peter Bibring, Staff Attorneys, ACLU of Southern
California, Farhana Y. Khera, Muslim Advocates, Shakeel Syed, Islamic Shura Council, and Hussam Ayloush,
Council on American Islamic Relations (Nov. 8, 2007), available at http://www.aclu-sc.org/attach/m/muslim_
mapping_letter.pdf (expressing “grave concerns” about the LAPD’s community-map­ping plans).
68

69

2003 DOJ Racial Profiling Guidance, supra note 49.

Mukasey Guidelines, supra note 50, at V.C.2 (“Otherwise illegal activity by a human source must be approved
in conformity with the Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources.”).
See also id. at VI.6.C.3.a (“When it appears that a human source has engaged in criminal activity in the course of
an investigation under these Guidelines, the FBI shall proceed as provided in the Attorney General’s Guidelines
Regarding the Use of FBI Confidential Human Sources.”).

70

71
See US Dep’t of Justice, Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources
(2006) [hereinafter Gonzales Guidelines].

The Gonzales Guidelines explicitly contemplate that informants will be authorized to engage in illegal activity,
but place limits on the possible authorization in a section entitled “Authorization of Otherwise Illegal Activity.”
Under the General Provisions of that section, the Guidelines provide that “The FBI is never permitted to authorize
a Confidential Human Source to: participate in any act of violence except in self-defense” or to “participate in
an act designed to obtain information for the FBI that would be unlawful if conducted by a law enforcement
agent (e.g., breaking and entering, illegal wiretapping, illegal opening and tampering with the mail, or trespass
amounting to an illegal search).” Id. at V.A.2.a., V.A.2.b. See also Mukasey Guidelines, supra note 50, at V.C.2.

72

The 2006 Gonzales Guidelines replaced Attorney General John Ashcroft’s 2002 Guidelines Regarding the
Use of Confidential Informants. Gonzales Guidelines, supra note 71, at I.A.3. See US Dep’t of Justice, Attorney
General’s Guidelines Regarding the Use of Confidential Informants (2002) [hereinafter 2002 Attorney General’s
Guidelines Regarding the Use of Confidential Informants].
73

74

Id. at III.C.1.b (emphasis added).

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75

See Gonzales Guidelines, supra note 71, at V.B.3.a.iii.C, D. C.f. 2002 Attorney General’s Guidelines Regarding
Use of Confidential Informants, supra note 73, at III.C.4.a.(iii)(B), (D).

the

Specifically, the Gonzales Guidelines provide that the instructions to the prospective informant must state that,
“under no circumstances may the Confidential Human Source: A. [engage in violence]; B. [engage in unlawful
evidence gathering]; C. If applicable: participate in an act that constitutes obstruction of justice (e.g. perjury,
witness tampering, witness intimidation, entrapment, or the fabrication, alteration, or destruction of evidence); D. If
applicable: initiate or instigate a plan or strategy to commit a federal, state, or local offense.” Gonzales Guidelines,
supra note 69, at V.B.3.a.iii (emphasis in original).

76

77

2005 DOJ OIG Report, supra note 55.

US Dep’t of Justice, Attorney General’s Guidelines On Undercover Operations (2002) [hereinafter DOJ
Guidelines on Undercover Operations]. See also Electronic Frontier Foundation, Patterns of Misconduct: FBI
Intelligence Violations from 2001-2008 (2011).
78

79

DOJ Guidelines on Undercover Operations, supra note 78, at V.

80

2005 DOJ OIG Report, supra note 55, at 150.

2010 DOJ OIG Review of the FBI’s Investigations of Certain Domestic Advocacy Groups, supra note 51, at
186-91. See also US Dep’t of Justice, Office of Inspector General et al., Unclassified report on the President’s
Surveillance Program (2009).
81

82

CHRGJ Interview with Mike German, supra note 2.

See Handschu v. Special Services Div., 605 F. Supp. 1384, 1388 (S.D.N.Y. 1985); N.Y. Civil Liberties Union,
Handschu v. Special Services Division (challenging NYPD surveillance practices targeting political groups),
http://www.nyclu.org/case/handschu-v-special-services-division-challenging-nypd-surveillance-practices-targeting-politica (noting that the Handschu case was aimed at challenging to the NYPD’s practices including “the
maintenance of dossiers on political activists and the use of various undercover and surveillance techniques
to monitor the activities of political organizations and individuals”) (last visited Apr. 29, 2011); Chip Berlet and
Abby Scher, Political Profiling: Police Spy on Peaceful Activists, Amnesty Int’l Mag., available at http://www.
amnestyusa.org/amnestynow/profiling.html (“Between 1904 and 1985, the NYPD maintained thousands of files
and at times deployed undercover agents provocateurs to disrupt organizing. In the Black Panthers case, it was a
police spy who nurtured the idea of bombing New York police stations and department stores.”).

83

84

Handschu, 605 F. Supp. at 1388.

85

Id. at 1390.

86

Id.

87

Id. at 1391.

Leonard Levitt, NYPD Seeks to Overturn Surveillance Rules, Newsday, Sep. 25, 2002, available at http://www.
newsday.com/news/nypd-seeks-to-overturn-surveillance-rules-1.364071.
88

New York Advisory Committee To The U.S. Commission On Civil Rights, Police Surveillance of Political
Activity -- The History and Current State of the Handschu Decree, Testimony Of Arthur N. Eisenberg, http://
www.nyclu.org/content/testimony-police-surveillance-of-political-activity-history-and-current-state-of-handschu-de (last visited Apr. 29, 2011).

89

See Handschu v. Special Servs. Div., 288 F. Supp. 2d 411, 420 (S.D.N.Y. 2003). The revised guidelines are
included in the decision as an appendix starting on p. 420.

90

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The revised guidelines specifically state: “These guidelines eliminate many of the restrictions of the former
Handschu Guidelines, and provide the Department with the authority and flexibility necessary to conduct
investigations involving political activity, including terrorism investigations.” Id. at 420.

91

92

Id. (emphasis added).

93

Id. at II(1).

94

Id, at VI(A)(1).

95

Id.

Craig Horowitz, The NYPD’s War on Terror, N.Y. Mag., available at http://nymag.com/nymetro/news/
features/n_8286/ [hereinafter Horowitz, The NYPD’s War on Terror]; Chris Dickey, Securing the City:
Inside America’s Best Counterterror Force—The NYPD (2009) [hereinafter Dickey, Securing the City];
William Finnegan, The Terrorism Beat, New Yorker, Jul. 25, 2005, available at http://www.newyorker.com/
archive/2005/07/25/050725fa_fact2 (noting that whereas prior to 2001 the NYPD had “fewer than two dozen
officers working the terrorism beat full time[,] [t]oday, there are about a thousand”).
96

Counterterrorism Units, NYC.gov, http://www.nyc.gov/html/nypd/html/administration/counterterrorism_units.
shtml (last visited Apr. 29, 2011). The NYPD’s separate Intelligence Division operates the International Liaison
Program, which seems to function without federal oversight. See Jeff Stein, NYPD Intelligence Detectives Go
Their Own Way, Wash. Post, Nov. 10, 2010, http://blog.washingtonpost.com/spy-talk/2010/11/nypds_foreign_
cops_play_outsid.html (last visited Apr. 29, 2011) (“With offices in 11 foreign capitals and an unpublished budget,
the ILP’s far-flung counterterrorism cops operate outside the authority of top U.S. officials abroad, including the
American ambassador and the CIA station chief, who is the nominal head of U.S. intelligence in foreign countries.
Neither the Director of National Intelligence nor the Department of Homeland Security have any jurisdiction over
the program. Nor have either done a study of how the NYPD’s foreign operations fit into U.S. counterterrorism
programs -- or don’t, officials say.”).

97

The New York JTTF also includes members of the NY State Police, the NY/NJ Port Authority Police, the U.S.
Marshal’s Service, the Bureau of Alcohol, Tobacco and Firearms, and the U.S. Secret Service. “With more than
2,000 FBI agents now assigned to 102 task forces, the JTTFs have effectively become a vast, quasi-secret
arm of the federal government, granted sweeping new powers that outstrip those of any other law-enforcement
agency. The JTTFs consist not only of local police, FBI special agents and federal investigators from Immigration
and the IRS, but covert operatives from the CIA. The task forces have thus effectively destroyed the ‘wall’ that
historically existed between law enforcement and intelligence-gathering.” Lawson, supra note 7. In 2005, Portland
became the only city to withdraw from the JTTF over concerns about lack of oversight, though the city is now
reconsidering rejoining via a negotiated agreement with the FBI. See Jim Redden, Adams says JTTF Proposal
Protects City, Civil Liberties, Portland Trib., Apr. 20, 2011, available at http://portlandtribune.com/news/story.
php?story_id=130331081305173700.

98

Horowitz, The NYPD’s War on Terror, supra note 96 (quoting Commissioner Kelly as having said, “I knew we
couldn’t rely on the federal government…I know it from my own experience. We’re doing all the things we’re
doing because the federal government isn’t doing them. It’s not enough to say it’s their job if the job isn’t being
done.”); Stein, supra note 97. (“Cohen and Kelly have not been shy about their antipathy for the U.S. intelligence
community in general and the FBI specifically, saying the former has demonstrated it can’t protect New York and
accusing the latter of withholding valuable information.”).

99

Silber & Bhatt, NYPD Radicalization Report, supra note 19; Patel, Rethinking Radicalization, supra note 20,
at 14.

100

See, e.g., Matthews v. United States, 485 U.S. 58, 63 (1988); Sherman v. United States, 356 U.S. 369,
376-378, (1958), United States v. Russell, 411 U.S. 423, 435-436 (1973).

101

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In the Second Circuit, for example, inducement includes “soliciting, proposing, initiating, broaching or
suggesting the commission of the offense charged.” United States v. Brand, 467 F.3d 179, 189 (2d Cir. 2006). In
the Seventh Circuit, there also exists the doctrine of extraordinary inducement. United States v. Haddad, 462 F.3d
783 (7th Cir. 2006). In all circuits, if the government merely offers opportunities or facilities for the commission
of the offense, then the entrapment defense fails. Also, deception alone does not constitute entrapment; the
deception must actually “implant the criminal design in the mind of the defendant.” Sherman, 356 U.S. at 372. In
the Second Circuit, predisposition may be shown by (1) an existing course of criminal conduct similar to the crime
for which the defendant is charged; (2) an already formed design on the part of the accused to commit the crime
for which he is charged; or (3) a willingness to commit the crime for which he is charged as evidenced by the
accused’s ready response to the inducement. Brand, 467 F.3d at 191. In the Seventh Circuit, predisposition also
requires that the defendant have been in a position to commit the crime charged prior to government involvement,
such that the defendant would have been likely to commit the crime without the government’s help. United States
v. Hollingsworth, 27 F.3d 1196, 1200 (7th Cir. 1994) (en banc).

102

Russell, 411 U.S. at 433. In its latest ruling on the entrapment defense, the Supreme Court underlined
predisposition as the focal point of the analysis. See Jacobson v. United States, 503 U.S. 540 (1992).

103

Said, supra note 7, at 693-94 (citing Brandeis’s articulation of the objective test in his dissent in Casey v.
United States, 276 U.S. 413, 423-25 (1928)).

104

According to the Center for Law and Security, since September 11, 2001, in six trials, ten defendants “charged
with terrorism-related crimes have formally argued the entrapment defense,” but none have prevailed. In addition
to Mohamad Shnewer, James Cromitie, David Williams, Onta Williams, Laguerre Payen, and Shahawar Matin
Siraj, Hemant Lakhani, Yassin Aref, Mohammed Hossain, and Narseal Batiste have formally argued entrapment.
March 2011 CLS TTRC Update, supra note 3. The press release notes that in each of these cases in which
entrapment was formally argued, the government agent was an informant as opposed to an undercover officer. Id.
See also Said, supra note 7, at 688-91, 715-32; 2010 CLS Terrorist Trial Report Card, supra note 4, at 20 (“As
of September 2010, the entrapment defense has never been used successfully in a post-9/11 federal terrorism
trial.”). See also 2009 CLS Terrorist Trial Report Card, supra note 2, at 45-48. United States v. Al-Moayad, 545
F.3d 139, 159-79 (2d Cir. 2008) is a rare case where, though the entrapment defense failed, the Second Circuit
Court of Appeals reversed the convictions on the grounds that the government deprived the defendants of a fair
trial in their use of inflammatory prejudicial evidence, regarding, inter alia, a bombing in Israel that defendants were
unconnected with, and images of Osama bin Laden).
105

See Jacobson, 503 U.S. at 548-49 (“Where the Government has induced an individual to break the law and
the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable
doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government
agents.”) (emphasis added, citation and footnote omitted).

106

107
See, e.g., United States. v. Lakhani, 480 F.3d 171, 174 (3d Cir. 2007) (upholding the jury’s rejection of
Lakhani’s entrapment defense); United States v. Siraj, 468 F. Supp. 2d 408 (E.D.N.Y. 2007), aff’d 2008 WL
2675826 (2d Cir. June 9, 2008) (upholding the jury’s rejection of Siraj’s entrapment defense); United States
v. Cromitie et al., 2011 WL 1663618 (S.D.N.Y. May 3, 2011) (upholding the jury’s rejection of the defendants’
entrapment defense). See also United States v. Cromitie et al., 2011 WL 1663626 (S.D.N.Y. May 3, 2011)
(denying defendants’ motion for dismissal on the basis of outrageous government conduct). Although Jacobson
requires that the government prove that the defendant was predisposed prior to coming into contact with
government agents, the Second Circuit permits the government to prove that the defendant was predisposed by,
among other things, evidence that the defendant was “ready and willing” to accept the inducement and commit
the crime. See United States v. Brand, 467 F.3d at 194 (“[A] defendant is predisposed to commit a crime if he
is ready and willing without persuasion to commit the crime charged and awaiting any propitious opportunity to
do so and predisposition can be shown by the accused’s ready response to the inducement.”) (internal citations
and quotation marks omitted). Thus, in the case against the Newburgh Four, the prosecution argued that the
defendants were predisposed because they were ready and willing to accept the informant’s offer of $250,000.
See Transcript of Oral Argument United States v. Cromitie et al, No. 09-CR-558 (S.D.N.Y 2010) [hereinafter

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Newburgh Four Trial Transcript] at 3224.
Federal Rules of Evidence Rule 403 provides that “[E]vidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . .
.” Little, if any, of the evidence referenced in this section was probative of the individual defendants’ propensity
to personally engage in violent acts. Nearly all the evidence, however, was prejudicial because it was highly
graphic, controversial, or otherwise unpopular, and it would be difficult, if not impossible, for a jury to disassociate
such evidence from the defendant’s individual propensity to commit violence. As current Assistant Secretary
for Intergovernmental Affairs in the United States Department of Homeland Security Juliette Kayyem has been
quoted as saying, “In this climate [of fear of terrorism], juries are not making the best decisions . . . Juries get
swayed—and informants get paid.” Ethan Brown, Snitch: Informants, Cooperators & the Corruption of Justice
(2007) 130, 134 [hereinafter Brown, Snitch]. See also Waldman, supra note 17. (“The United States is now
prosecuting suspected terrorists on the basis of their intentions, not just their actions. But in the case of Islamic
extremists, how can American jurors fairly weigh words and beliefs when Muslims themselves can’t agree on
what they mean?”). But see Siraj, 468 F. Supp. at 420 (“Defendant also argues that allowing the undercover
officer’s testimony raises ‘considerable First Amendment concerns’ by criminalizing legitimate political discourse.
However, even if the undercover officer testified to statements made by defendant that may be described as
reflecting defendant’s political views, those statements were properly admitted . . . . That defendant’s statements
contain political expression does not insulate defendant from their use at trial where the statements also rebut his
testimony to prove predisposition.”).
108

For example, in the Newburgh Four case, the government brought in a stinger missile C4 explosives; and in the
Fort Dix Five case, the government brought in jihadi videos—all of this prejudicial and provided to the defendants
by the informants or at their encouragement. In another case, United States v. Aref, the government displayed a
stinger missile, provided by the informant, in a money laundering case. Entrapment or Foiling Terror, supra note 3.

109

110

For more on these rights, see infra Part III.

111
Consider, for example, this reasoning by the Second Circuit Court of Appeals in affirming Siraj’s conviction:
“Matin challenges the admission of two books purchased from the Islamic bookstore where he worked (one at
Matin’s personal recommendation). The district court acted within its sound discretion in admitting the books.
To the extent Matin recommended the books, they were relevant to show predisposition; and to the extent the
books were for sale in the shop where Matin worked, they tended to rebut Matin’s assertion that the cooperating
witness first exposed him to radical Islam and violent jihad.” United States v. Siraj, 468 F. Supp. 2d 408 (E.D.N.Y.
2007), aff’d 2008 WL 2675826 at *2 (2d Cir. June 9, 2008). See also Siraj, 468 F. Supp. at 420 (“Defendant
also argues that allowing the undercover officer’s testimony raises ‘considerable First Amendment concerns’ by
criminalizing legitimate political discourse. However, even if the undercover officer testified to statements made
by defendant that may be described as reflecting defendant’s political views, those statements were properly
admitted . . . . That defendant’s statements contain political expression does not insulate defendant from their use
at trial where the statements also rebut his testimony to prove predisposition.”). See also Said, supra note 7, at
697 (“Demonstrating predisposition can therefore become a referendum on a defendant’s political or religious
views when the inquiry focuses on how sympathetic the defendant is to terrorist objectives.”), 717 (“In rebuttal to
Siraj’s entrapment defense, the undercover officer testified about Siraj’s praise of Osama Bin Laden and support
for further bombings in the United States. Further, the trial saw the admission of evidence of Siraj’s support for
al-Qaeda, Hamas, Hamas leaders, violence against Jews, and books and videos endorsing and praising so-called
violent jihad, which bolstered the government’s predisposition argument.” (footnotes omitted)).

See, e.g., the Newburgh Four Trial Transcript, supra note 107, at 66 (noting that fake explosives used were
provided by the informant in that case) and infra Part II. There’s also the issue of courts allowing in prejudicial
evidence unrelated to the charges against the defendant. See, e.g., United States v. Al-Moayad, 545 F.3d 139,
159-79 (2d Cir. 2008) (finding the district court committed prejudicial error, depriving defendants of a fair trial, in
admitting evidence regarding, inter alia, a bombing in Israel that defendants were unconnected with, and images
of Osama bin Laden).

112

113

See Said, supra note 7, at 689 (“[R]egardless of whether an informant’s conduct legally constitutes entrapment,

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several of the post-9/11 cases highlight situations in which the existence of any real threat to national security was
questionable.”).
114

See supra note 109.

115

See infra Part III.

For example, the Duka brothers became targets of an FBI investigation after agents saw the DVD showing
them riding horses and yelling “Allahu Akbar” (“God is Great”). At trial, the government relied in large part
on Mohammed Shnewer’s possession of “videos produced by al Qaeda, al Qaeda in Iraq.” Fort Dix Five Trial
Transcript, infra note 168, at 1523/22-25, 1542/1-25. See also New Powers, New Risks, supra note 42, at
29 (“According to the FBI itself, potential indicators of terrorist activity include taking notes, drawing diagrams,
espousing unpopular views, or taking photographs, and other law enforcement organizations have expressed the
view that increased religiosity is suspicious as well.”).
There are examples in the border enforcement context as well. Tareq Abu Fayad was stopped at San
Francisco International Airport where customs officials found what they termed to be “jihadist materials” on his
computer, including al-Jazeera news stories and a 9/11 conspiracy theory video downloaded on his laptop. Abu
Fayad said the materials were news articles about current events in Gaza that he was planning to read later
and that he had never joined or supported Hamas. Nevertheless, the 9th Circuit said immigration officials had
reasonably concluded that Abu Fayad was likely to engage in or support terrorism. Under the Radar, supra note
10, at 12; Tareq I.J. Abu Fayad v. Eric Holder, 632 F.3d 623, 625 (9th Cir. 2011). See generally Unreasonable
Intrusions: Investigating the Politics, Faith & Finances of Americans Returning Home, supra note 22; Returning
Home, supra note 22.
116

117

See supra note 22.

118

CHRGJ Interview with Mike German, supra note 2.

119

R. v. Mack, [1988] 2 S.C.R. 903 (Can.); R. v. Loosely, [2001] UKHL 53 (U.K.).

120

Mack, [1988] 2 S.C.R. 903; Loosely, [2001] UKHL 53 at ¶¶ 24-29.

121

Loosely, [2001] UKHL 53 at ¶ 25.

122

Mack, [1988] 2 S.C.R. 903 at ¶¶ 131, 139-49

As Lord Nicholls explained, “Predisposition does not make acceptable what would otherwise be unacceptable
conduct on the part of the police or other law enforcement agencies. Predisposition does not negative misuse of
state power.” Loosely, [2001] UKHL 53 at ¶ 22.

123

See, e.g., Samuel J. Rascoff, Domesticating Intelligence, 83 S. Cal. L. Rev. 575, 591-592 (2010) ( “Not
only has the Supreme Court not afforded protections against government snooping through undercover agents
or confidential informants; it has also explicitly exempted human intelligence, or “humint,” from coverage by the
First and Fourth Amendments. While the FBI has historically imposed limits on its own ability to conduct human
intelligence gathering by requiring criminal predication before a source could be injected into a group, for example,
those internal rules have been substantially relaxed in the years following 9/11. This gap in doctrine is especially
striking in view of the mounting importance of human intelligence as part of a broader counterterrorism strategy.”).
See also Harris, supra note 2, at 141-155 (“[W]e are left with one overarching impression of the law that governs
the use of informants. The Fourth Amendment affords law enforcement nearly full discretion to decide when
and how to use informants. Defenses like entrapment remain available at trial, but these defenses seem more
theoretical than real in terms of what they might do to reign in informant activity. While individuals can bring civil
suits, relief seems unlikely. Finally, the FBI has largely abandoned internal regulation as a way to regulate discretion
over when and why agents can place informants in First Amendment-sensitive places like religious institutions.”).
124

125

The outrageous government conduct defense is grounded in due process. This defense asks whether the

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government’s conduct during the investigation was so outrageous as to “shock the conscience.” The Supreme
Court has emphasized the narrowness of the defense, and, indeed, has yet to hear a case based on the defense.
Thus, it is unlikely to be an avenue through which defendants can effectively challenge the use of informants in
counterterrorism investigations. See, e.g. United States v. Russell, 411 U.S. 423, 431-432 (1973); Hampton v.
United States, 425 U.S. 484 (1976) (explaining the narrowness of the outrageous government conduct defense).
Most recently, the court in the Newburgh Four case denied defendants’ motion for dismissal on the basis of
outrageous government conduct. United States v. Cromitie et al., 2011 WL 1663626 (S.D.N.Y. May 3, 2011).
See also Amanda J. Schreiber, Dealing with the Devil: An Examination of the FBI’s Troubled Relationship with
its Confidential Informants, 34 Colum. J. L. & Soc. Probs. 301 (2001); see also Daniel V. Ward, Confidential
Informants in National Security Investigations, 47 B.C. L. Rev. 627 (2006).
126

Harris, supra 2, at 158.

127

See supra note 17.

Interview with Elizabeth McWilliams, mother of David Williams (Apr. 7, 2011) (on file with CHRGJ) [hereinafter
CHRGJ Interview with Elizabeth McWilliams].

128

129

Id. See Rayman, Were the Newburgh 4 Really Out to Blow Up Synagogues?, supra note 8.

130

CHRGJ Interview with Elizabeth McWilliams, supra note 128.

131

Id.; Email from Lyric R. Cabral, April 28, 2011 (on file with CHRGJ).

Interview with Lord McWilliams, brother of David Williams (Apr. 4, 2011) (on file with CHRGJ) [hereinafter
CHRGJ Interview with Lord McWilliams].

132

133

Id.

134

CHRGJ Interview with Elizabeth McWilliams, supra note 128.

Interview with Alicia McWilliams, aunt of David Williams (Mar. 8, 2011) (on file with CHRGJ) [hereinafter
CHRGJ Interview with Alicia McWilliams].

135

136

Id.

137

Rayman, Were the Newburgh 4 Really Out to Blow Up Synagogues?, supra note 8.

Newburgh Four Trial Transcript, supra note 107, at 1036 (Hussain admitting he had offered $250,000 to Cromitie,
but insisting it was a “code word” for the costs of the operation), 890 (Hussain admitting he offered to pay for a
barbershop for Cromitie), 894 (Hussain admitting he offered a BMW to Cromitie). See also, e.g., id. 1613 (Hussain
admitting he told Cromitie that Jews are responsible for the evils in the world and that they should be eliminated).

138

Id. at 1718 (Hussain admitting he told Cromitie it would be nice to have Muslim “bodies”); Government Exhibit
109-E2-T, November 29, 2008 recording: (after Cromitie falsely tells Hussain that he has a team of fighters,
Hussain asks: “But do you think these, these guys that you’re talking about are Mus-, will do [it] for the money
or for the cause?”); Government Exhibit 133-E2-T, December 17, 2008 recording (Hussain says to Cromitie, “It
would be nice, brother. It would be really nice. We can have more bodies with us. Real, good Muslim brothers
would be nice, you know? And…” Cromitie: “Yeah, but from where, Hak?”); Government Exhibit 116-E1-T, April 7,
2009 recording: (Hussain says to Cromitie “If we can [get a] lookout. If we can, get a couple of, couple of guys…
Lookouts. And uh, they have to believe into it, you know it’s not only for the money. It’s… they have to believe.”
Cromitie: “It’s not [about] money [for me].” Hussain: “Okay, but I’m talking about the lookout guys . . . The lookout
guys has not to be, they have to believe into it, ya know?” And then later, after Cromitie catches the hint and offers:
“I think they should be Muslims...” Hussain: “It should be for the cause, you know? It should be for the cause. Less
for the money, more for the cause.”).

139

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140

Id.

Hussain met Cromitie in June 2008. From June through April 2009, Hussain tried to persuade Cromitie to
commit jihad. See generally, Ted Conover, The Pathetic Newburgh Four: Should the FBI really be baiting sad-sack
homegrown terrorists?, Slate, Nov. 23, 2010, available at http://www.slate.com/id/2275735/ (last visited April
28, 2011) [hereinafter Conover, The Pathetic Newburgh Four]; Government Exhibit 101-E2-T, October 12, 2008
recording: After Cromitie complains about being mistreated by somebody because he was Muslim, Cromitie
says “But sometimes I just want to grab him and ahhhh, kill him. But I’m Muslim, insha’Allah, Allah will take care
of it. Hussain replies: “Insha’Allah, if you brother, if you really have to do something, you have to do it in jihad,
and try to do something.” Cromitie: “No, because you’re angry.”; Government Exhibit 101-E4-T, October 12,
2008 recording: after Cromitie again complains about being discriminated against for being Muslim, but that
he will change his beliefs and will “die a Muslim,” Hussain says, “Insha’Allah. As a Muslim, you should die for
a, for a cause…”; Government Exhibit 101-E5-T, October 12, 2008 recording: after Cromitie says something
about American foreign policy, Hussain says, “But… Allah, Allah always, Allah subhana wa tala always said that,
(unintelligible) hadiths, that… if evil goes too high, then Allah makes ways to drop them. . . . I think that evil is
reaching too high at a point, where you, me, all these brothers, have to come up with a solution to take the evil
down. That’s how, it’s the hadith.;” Government Exhibit 102-E1-T, October 19, 2008 recording: after Cromitie
again laments about foreign policy issues, Hussain says, “I think your mind and my mind works as the same thing,
you know? . . . As, as the same thoughts, about the world and about Islam . . . And when I, when I see these, these
Mushriks, these, these Yahud, killing the Palestines, of killing Muslims, of killing people in, in Iraq or in Afghanistan,
one of our brothers, I, I always think about going for a cause, you know? For a cause of Islam. Have you ever
thought about that, brother?” See also, e.g., Newburgh Four Trial Transcript, supra note 107, at 1696 (Hussain
admitting he encouraged Cromitie “[m]any times” to come up with a plan, and “[m]any times” to decide on a
target).

141

See Rayman, Were the Newburgh 4 Really Out to Blow Up Synagogues?, supra note 8 (quoting Imam
Salahuddin Mohammad from the mosque: “They said this individual was talking about jihad—there’s something
wrong with this guy, he’s not real. People thought he was an FBI agent. The guy was fishing.”); Entrapment or
Foiling Terror, supra note 3 (quoting Imam Salhuddin Mohammad: “I started hearing from different members of the
community that he was talking stuff about jihad and something about a group in Pakistan and telling the brothers
they should go over and help them in Pakistan because he’s a part of some group.”); Conover, The Pathetic
Newburgh Four, supra note 139.

142

The government’s target in that case was Yassin Aref, a Kurdish refugee from Iraq who was the imam of a
mosque in Albany, NY. The FBI sent an informant, Shahed Hussein – the same informant in the Newburgh Four
case – to become close to a member of Aref’s mosque, Mohammed Hossain, who owned a pizzeria. The informant
eventually offered Hossain a loan for his pizzeria. He said the loan had come from the sale of a missile to a terrorist
group. Hossain accepted the loan and asked Aref to witness the loan. They were arrested on multiple charges
including conspiring to aid a terrorist group and provide support for a weapon of mass destruction, as well as
money-laundering and supporting a foreign terrorist organization. They were convicted and sentenced to 15 years
in prison each. For more information, see the Muslim Solidarity Committee’s website, http://www.nepajac.org/
Aref&Hossain.htm and Entrapment or Foiling Terror, supra note 3.
143

144

CHRGJ Interview with Lord McWilliams, supra note 130.

Newburgh Four Trial Transcript, supra note 107, at 2056. According to one article, David Williams was
scheduled to be sentenced on a grand larceny charge on this date, but the FBI had the date changed. Rayman,
Were the Newburgh 4 Really Out to Blow Up Synagogues?, supra note 8.

145

FBI Special Agent Robert Fuller testified that the purpose of this step was to get the defendants to cross state
lines. Newburgh Four Trial Transcript, supra note 107, at 256.
146

Id., at 427 (Agent Robert Fuller describing contacting the “substitution unit” within the “explosives unit” on
April 5, 2009, to see when how fast they could supply IEDs [improvised explosive devices] and stinger missiles).

147

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148

Id., at 256.

149

Id., at 387, 1048, 1201, 2104.

Id., at 2126. It is unclear whether the bombs—all fakes—were ever “activated.” Id., at 572-80. The three
explosive devices were not received or examined by Agent Fuller until two weeks after the arrest, on June 3, at
which time, according to his handwritten notes and testimony, only one of the explosives had both the switch and
the associated cell phone turned on. Before the trial was moved from White Plains to Manhattan, the prosecution
had sent a letter to the defense saying that would have photographic evidence that might confirm the positions of
the switches. They never produced that evidence. David Williams says the explosives were never on. Rayman,
Were the Newburgh 4 Really Out to Blow Up Synagogues?, supra note 8; Email from Lyric R. Cabral, supra note
129.

150

151

United States v. Cromitie, No. 09 Cr. 558 (S.D.N.Y).

152

Id.

A range of concerns have been raised about the treatment of Muslims in the federal prison system. See, e.g.,
Michelle Goldberg, The Prisoner-Abuse Scandal At Home, Salon.com, May 19, 2004, available at http://www.
salon.com/news/feature/2004/05/19/maddy (discussing the Brooklyn Metropolitan Detention Center’s guard’s
abuses of Muslim prisoners); Sally Eberardt and Jeanne Theoharis, Guantanamos Here at Home, The Nation,
Jan. 20, 2011, available at http://www.thenation.com/article/157896/guant%C3%A1namos-here-home (pointing
out the use of solitary confinement and Special Administrative Measures against Muslim defendants); Alia Malek,
Gitmo in the Heartland, The Nation, Mar. 10, 2011, available at http://www.thenation.com/article/159161/
gitmo-heartland (discussing Communication Management Units maintained by the federal Bureau of Prisons,
where Muslims and environmental activists are held).
153

All the defendants were charged with one count of conspiracy to use weapons of mass destruction within the
United States, three counts of attempt to use weapons of mass destruction within the United States, one count of
conspiracy to acquire and use anti-aircraft missiles, one count of attempt to acquire and use anti-aircraft missiles,
one count of conspiracy to kill officers and employees of the United States, and one count of attempt to kill
officers and employees of the United States. Indictment, United States v. Cromitie, (S.D.N.Y. June 2, 2009). They
were convicted of all charges, except Laguerre Payen and Onta Williams were found not guilty of the last count:
attempt to kill officers and employees of the United States. See http://topics.nytimes.com/topics/reference/
timestopics/people/p/laguerre_payen/index.html.

154

United States v. Cromitie, 2011 WL 1663618 (S.D.N.Y. May 3, 2011); United States v. Cromitie, 2011 WL
1663626 (S.D.N.Y. May 3, 2011).

155

156
FBI/DOJ Press Release, October 18, 2010, Four Men Found Guilty of Plotting to Bomb New York Synagogue
and Jewish Community Center and to Shoot Military Planes with Stinger Missiles, http://www.fbi.gov/newyork/
press-releases/2010/nyfo101810.htm (last visited April 28, 2011).
157

CHRGJ Interview with Elizabeth McWilliams, supra note 128.

158

CHRGJ Interview with Lord McWilliams, supra note 132.

159

CHRGJ Interview with Alicia McWilliams, supra note 135.

160

Id.

161

See supra notes 5-8, 17.

Interview with Ferik Duka, father of Duka brothers (Mar. 25, 2011) (on file with CHRGJ) [hereinafter CHRGJ
Interview with Ferik Duka].

162

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Interview with Lejla Duka, daughter and niece of Duka brothers (Mar. 25, 2011) (on file with CHRGJ)
[hereinafter CHRGJ Interview with Lejla Duka].

163

Dritan and Shain Duka were sentenced to life in prison plus 30 years. Eljvir Duka was sentenced to life in
prison.

164

All three brothers were charged with conspiracy to murder members of the U.S. military, attempt to murder
members of the U.S. military, possession and attempted possession of firearms in furtherance of a crime of
violence, and possession of firearms by an illegal alien. Dritan and Shain were also charged with possession of
machineguns and possession of firearms by an illegal alien. The brothers were convicted of all charges except
attempted murder and, in Eljvir’s case, possession and attempted possession of firearms in furtherance of a crime
of violence.

165

166
Interview with Burim Duka, brother of Duka brothers (Mar. 26, 2011) (on file with CHRGJ [hereinafter CHRGJ
Interview with Burim Duka].

Eljvir Duka is married to Mohammed Shnewer’s sister, making them brothers-in-law in addition to long-time
friends.

167

Federal Prosecutor William E. Fitzpatrick noted in his opening statement that the investigation involved “dozens”
of police, detectives, investigators, and special agents engaged in many methods of surveillance including physical
surveillance, electronic surveillance, and surveillance by informants. Trial transcript of United States v. Shnewer et al,
No 07 Cr. 459 (D.N.J.). [hereinafter Fort Dix Five Trial Transcript], at 1536/20-25, 1537/1-3. Burim Duka attended
all but three days of his brothers’ trial. He stated, “The judge would always talk about the millions of dollars they
spent on this case. Like money was the reason to find my brothers guilty… Just because you spent millions of dollars
doesn’t mean you have to put innocent people in jail.” CHRGJ Interview with Burim Duka, supra note 164.
168

JTTF member John Stermel, a government witness, testified at trial that Bakalli was inserted into the investigation
specifically to target the Duka brothers since he was Albanian and would be able to relate to them better. Fort Dix
Five Trial Transcript, supra note 168, at 2669/1-7.

169

170

CHRGJ Interview with Ferik Duka, supra note 162.	

Federal Prosecutor William E. Fitzpatrick in his opening statement described Omar as “a small time thief”
who “began to cooperate when he got in trouble with the law.” Fort Dix Five Trial Transcript, supra note 168, at
1532/13-14. Defense Attorney Rocco Cipparone claimed that Omar had been paid $238,000. Id., at 1559/14.
Fitzpatrick described Bakalli as “an Albanian national, a tough guy from the streets.” “He was about to be deported
back to Albania when he agreed to cooperate with the FBI. He was also paid some money…his main goal is
status, he wants some sort of legal status at the end of this process…the FBI brought his mother and father from
Albania to the United States.” Id., at 1532/20-25, 1533/1-6.
171

172

Id., at 1625/16 (Michael Riley opening statement).

Federal Prosecutor William E. Fitzpatrick described as “reconnaissance” Mohammed Shnewer’s visits with
informant Mahmoud Omar to Fort Dix, McGuire, Lakehurst, Fort Monmouth, Dover Air Force Base, the Coast
Guard in Philadelphia, and some federal buildings on August 11th and 13th, 2006. Id., at 1538/17-25, 1539/1-3.

173

CHRGJ Interview with Burim Duka, supra note 164. According to the opening statement of Federal Prosecutor
William E. Fitzpatrick, Dritan and Shain ordered four M16’s, fully automatic machine guns, and three AK47,
semiautomatic assault weapons. Fitzpatrick refers to them as “weapons of war.” Fort Dix Five Trial Transcript,
supra note 168, at 1517/20-23. According to Defense Attorney Michael Huff, the brothers were purchasing the
weapons for recreational purposes for their next trip to the Poconos since in previous trips there weren’t enough
to go around and they didn’t like waiting in line. Id., at 1595/17-25, 1596/1-7. Mahmoud Omar testified at trial
that Dritan “Tony” Duka indicated to him that he wanted to buy more guns to avoid having to wait in line for target
shooting in the Poconos. Id., at 3673/18-25, 3674/1-5.

174

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175

CHRGJ Interview with Ferik Duka, supra note 162.

The full list of charges and convictions are as follows: Count 1: All five defendants were charged with
conspiracy to murder members of the U.S. military. All five defendants were convicted on Count 1. Count 2:
All five defendants were charged with attempt to murder members of the U.S. military. All five defendants were
acquitted on Count 2. Count 3: Shain, Dritan, and Eljvir Duka were charged with possession and attempted
possession of firearms in furtherance of a crime of violence. Dritan and Shain were convicted on Count 3, but Eljvir
was acquitted. Count 4: Mohamed Shnewer was charged with attempted possession of firearms in furtherance
of a crime of violence. Shnewer was convicted on Count 4. Count 5: Dritan and Shain Duka were charged with
possession of machineguns. Both were convicted on Count 5. Count 6: Dritan and Shain Duka were charged
with possession of firearms by an illegal alien. Both were convicted on Count 6. Count 7: Shain, Dritan, and
Eljvir Duka were charged with possession of firearms by an illegal alien. All three were convicted on Count 7.
Superseding Indictment, United States v. Shnewer, (D.N.J. Jan. 15, 2008); Jury Verdict Form, Shnewer, (D.N.J.
Dec. 22, 2008).
176

Eljvir Duka’s Defense Attorney Troy Archie argued in his opening statement that Omar was intent on bringing
Eljvir into the plot since he needed more people to make out the conspiracy. Archie notes that the recordings reflect
that Omar asked Mohammed Shnewer 400 times from August 2-September 22, 2006 and said to Shnewer “I
will kiss your feet for someone like Sulayman [Eljvir].” Fort Dix Five Trial Transcript, supra note 168, at 1611/7-19.

177

Geoff Mulvihill, Did informant’s actions aid Fort Dix plotters?: Entrapment defense may be presented in
court for alleged plot against U.S., MSNBC, May 10, 2007, available at http://www.msnbc.msn.com/
id/18601345/41023075 (last visited May 12, 2011); David Kocieniewski, The Role of an F.B.I. Informer Draws
Praise as Well as Questions About Legitimacy, N.Y. Times, May 10, 2007, available at http://www.nytimes.
com/2007/05/10/nyregion/10informer.html?oref=slogin.
178

Dritan Duka’s Defense Attorney Michael Huff argued in his opening statement, “Tony [Dritan] Duka had no
knowledge of Mahmoud Omar and Mohamad Shnewer’s alleged agreement. He had no idea that they were
having these talks that the government is referring to. At the end of this case you will determine that Tony Duka
not only didn’t know about this alleged agreement, he didn’t know what the goals or objectives were of this
alleged agreement, and certainly at no point in time did Tony Duka join in this alleged agreement.” Fort Dix Five
Trial Transcript, supra note 168, at 1578/12-19. Eljvir Duka’s Defense Attorney Troy Archie argued in his opening
statement that Omar was intent on bringing Eljvir into the plot since he needed more people to make out the
conspiracy. Archie notes that the recordings reflect that Omar asked Mohammed Shnewer 400 times from
August 2-September 22, 2006 and said to Shnewer “I will kiss your feet for someone like Sulayman [Eljvir].” Id.,
at 1611/7-19.

179

Mohammed Omar’s testimony at trial reflected in numerous places that the Duka brothers were unaware of
the alleged plot to attack Fort Dix. Omar testified that Eljvir Duka never indicated to him at any time that he was
aware that Omar and Shnewer had traveled to Dover (the same trip where they allegedly surveilled Fort Dix). Omar
testified that Shnewer had told him that he had informed Eljvir, but Eljvir never said anything to Omar to confirm
this. Id., at 3463/1-10. Omar testified that when he asked Eljvir Duka if Omar had spoken to him about the alleged
plot, Eljvir did not know what he was talking about. Id., at 3477/19-25, 3478/1-5. Omar testified that he tried to
meet with Eljvir repeatedly but that “trying to meet with Sulayman [another name that Eljvir goes by] is essentially
as difficult as it is to meet with George Bush.” Id., at 3485/2-5. Omar testified that he had a conversation with
Shnewer about the logistics and methodology of attacking Fort Dix but at no time did he hear any kind of planning
or specifics of this nature from the Duka brothers or Serdar Tatar. Id., at 3548/4-9. Omar testified that at one
point during the investigation, he went to the FBI and told them that Tony [Dritan] and Shain had nothing to do
with the alleged plot. Id., at 3727/7-25.

180

181

Troy Archie, opening statement, id., at 1620/21-25.

National Center for State Courts, The Center for Jury Studies, Anonymous Juries: Frequently Asked Questions,
http://www.ncsconline.org/Juries/InnAnonymousFAQ.htm (last visited Apr. 29, 2011) (describing anonymous
juries, including their advantages and disadvantages).

182

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Troy Graham, Fort Dix Juror: ‘They Were Going To Do It’ Philadelphia Inquirer, Jan. 25, 2009, available at
http://articles.philly.com/2009-01-25/news/25280685_1_juror-fort-dix-split-verdict.
183

Id. (“Juror No. 3 has a son who served two tours with the Marines in Iraq, where he was wounded by shrapnel
and received the Purple Heart and Bronze Star. One video in particular, called Baghdad Sniper, was difficult for
her to watch, she said. In one scene, a sniper shoots an American serviceman in the back, the same place her son
was wounded. ‘I thought I was seeing my son getting hit,’ she said.”).

184

At the end of August 2010, lawyers for the Fort Dix Five filed an appeal of the convictions in the 3rd Circuit.
United States v. Shnewer No. 09292, 09299-302 (3rd Cir.).

185

Interview with Zurata Duka, mother of Duka defendants (Mar. 26, 2011) (on file with CHRGJ) [hereinafter
CHRGJ Interview with Zurata Duka].

186

According to Ferik Duka, the Duka family filed papers to adjust their immigration status multiple times, indicating
that the government was aware that they were in the country without proper documentation long before Ferik’s
arrest and detention. Ferik asserts that he has paid taxes since 1985 and that he owns two companies and the
family’s home. Ferik was detained for one month before seeing an immigration judge, who ordered his release.
CHRGJ Interview with Ferik Duka, supra note 162.

187

188

CHRGJ Interview with Zurata Duka, supra note 186.

189

CHRJG Interview with Burim Duka, supra note 166.

For an example of a website that identifies the Dukas’ roofing business by name as well as label them as
terrorists, see http://www.realitymod.com/forum/f11-off-topic-discussion/20497-terrorist-mickey-mouse-2.html
(last visited May 7, 2011).

190

191

CHRGJ Interview with Ferik Duka, supra note 162.

192

CHRGJ Interview with Zurata Duka, supra note 186.

193

Id.

194

CHRGJ Interview with Burim Duka, supra note 166.

195

Id.

196

CHRGJ Interview with Lejla Duka, supra note 163.

Interview with Shahina Parveen, mother of Shahawar Siraj Matin (Mar. 27, 2011) (on file with CHRGJ
[hereinafter CHRGJ Interview with Shahina Parveen].

197

198

Id.

199
Id.; Interview with Saniya Siraj, sister of Shahawar Siraj Matin (Mar. 27, 2011) (on file with CHRGJ) [hereinafter
CHRGJ Interview with Saniya Siraj].
200

Id.

See, e.g., William K. Rashbaum, Undercover Officer Testifies in Bomb Trial, N.Y. Times, May 18, 2006, available
at http://www.nytimes.com/2006/05/18/nyregion/18herald.html.

201

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United States v. Shahawar Matin Siraj, 1:05-cr-00104-NG (E.D.N.Y. Sep. 6 2006), Memorandum of Law in
Support of Motion for a New Trial Pursuant to Fed. R. Crim. P. 33(a), at 9-10 (citing trial transcripts) [hereinafter
Motion for a New Trial].

202

203

Brown, Snitch, supra note 108, at 122.

204

Id.

205

Id.

William K. Rashbaum, Trial Opens Window on Shadowing of Muslims, N.Y. Times, May 28, 2006, available at
http://www.nytimes.com/2006/05/28/nyregion/28tactics.html?_r=1.
206

Horowitz, Anatomy of a Foiled Plot, supra note 4 (“[T]he informant came to the mosque and introduced
himself as a religious man. He told everyone his father was a well-known author of Islamic books in Egypt. ‘When
he heard the call for prayer, he would start to cry.’”); Robin Shulman, The Informer: Behind the Scenes, or
Setting the Stage? Wash. Post, May 29, 2007, available at http://www.washingtonpost.com/wp-dyn/content/
article/2007/05/28/AR2007052801401.html [hereinafter Shulman, The Informer: Behind the Scenes, or Setting
the Stage?] (“Eldawoody was dispatched to several mosques before he was asked to infiltrate the Islamic Society
of Bay Ridge, a storefront mosque in the city’s largest Arab community. He became known for praying so fervently
he would weep. Once, he objected to the presence of two non-Muslims in the mosque in order to seem fanatical
about religion, he told his handler, Detective Stephen Andrews.”).
207

Zein Rimawi, one of the founders of the Islamic Society of Bay Ridge, also asserts that the imam, Sheikh
Reda Shata, was Eldawoody’s original target. Horowitz, Anatomy of a Foiled Plot, supra note 4. Sheikh Reda
Shata also believes that he was a target, saying that in 2003, Eldawoody tried to draw him into an illicit business
deal. Andrea Elliott, Undercover Work Deepens Police-Muslim Tensions, N.Y. Times, May 27, 2006, available at
http://www.nytimes.com/2006/05/27/nyregion/27muslim.html?pagewanted=print. The NYPD denies this claim.
Horowitz, Anatomy of a Foiled Plot, supra note 4.
208

Id. (reporting that the NYPD assigned Eldawoody to develop a relationship with Shahawar and to gain his
trust, a few months after they had gotten tips about Shahawar’s political rhetoric).

209

210

Shulman, The Informer: Behind the Scenes, or Setting the Stage?, supra note 207.

William K. Rashbaum, Lawyer Confronts Informer in Subway-Bomb Plot Case, N.Y. Times, May 5, 2006,
available at http://www.nytimes.com/2006/05/05/nyregion/05herald.html; Shulman, The Informer: Behind the
Scenes, or Setting the Stage?, supra note 207.

211

212

Amitava Kumar, A Foreigner Carrying in the Crook of His Arm a Tiny Bomb 124 (2010).

Brown, Snitch, supra note 108, at 124-25.; William K. Rashbaum, Staten Island Man Describes Shattered
Life, Then a Plot to Bomb a Subway Station, N.Y. Times, May 10, 2006, available at http://www.nytimes.
com/2006/05/10/nyregion/10herald.html.
213

214

Brown, Snitch, supra note 108, at 125 (quoting Shahawar).

215

CHRGJ Interview with Shahina Parveen, supra at note 197.

See, e.g., Seymour Hersh, Torture at Abu Ghraib, New Yorker, May 10, 2004, available at http://www.
newyorker.com/archive/2004/05/10/040510fa_fact.

216

217

See Brown, Snitch, supra note 108, at 126.

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218
Id.; William K. Rashbaum, Defendant Says Police Informer Pushed Him Into Bomb Plot, N.Y. Times, May 16,
2006, available at http://www.nytimes.com/2006/05/16/nyregion/16herald.html?fta=y.
219

Dickey, Securing the City, supra note 96.

Shulman, The Informer: Behind the Scenes, or Setting the Stage?, supra note 207; Horowitz, Anatomy of a
Foiled Plot, supra note 4, also reports that the recordings began in June. See also Shahawar Matin Siraj v. United
States, Case 1:10-cv-00791-NG, (E.D.N.Y. Feb. 22, 2010), Motion to Vacate Sentence Pursuant to 28 U.S.C.
§ 2255 [hereinafter Habeas Petition] at 7, noting that recordings began in May, but usable recordings were not
made until June.

220

221

Kumar, supra note 212, at 124.

222

Id., at 125.

223

Id.

224
Id.; Dickey, Securing the City, supra note 96, at 191; Brown, Snitch, supra note 106, at 127; Habeas Petition,
supra note 220, at 8.
225
William K. Rashbaum, In Tapes of Subway Plot Suspect, A Disjoined Torrent of Hatred, N.Y. Times, Apr. 26,
2006, available at http://query.nytimes.com/gst/fullpage.html?res=9C04E2DF133FF935A15757C0A9609C
8B63. Brown, Snitch, supra note 108 at 127; Said, supra note 7 at 716.
226

Brown, Snitch, supra note 108, at 127.

227

Kumar, supra note 212 at 125.

228

Horowitz, Anatomy of a Foiled Plot, supra note 4; Kumar, supra note 212, at 125.

229

Id.

Habeas Petition, Siraj, No. 05 Cr. 104 (E.D.N.Y.), at 23 (Government Exhibit 19-A, at 3 (transcript of August
23, 2004 video recording) [hereinafter Gov’t. Ex. 19-A]); Dickey, Securing the City, supra note 94, at 194; Kumar,
supra note 210, at 113.

230

231

Gov’t Ex. 19-A, supra note 230, at 3.

Id. at 4 (after Eldawoody says that 34th St. has been approved, Shahawar: “What kind of, the thing we will use?
Hmm? Tell him that, ah, that we are very careful about the people’s life.” Eldawoody: “Okay.” Shahawar: “Have
you told him this?” Eldawoody: “We’ve spoke of many things.” Shahawar: “I don’t want to be the one that I put it
and people die.” Eldawoody: “No, no. He agrees, he agrees about lots of things. Because that’s the principle, you
know? No suiciding, no killing.” Shahawar: “No killing. Only economy problems.”); Id. at 5 (Shahawar changes
the subject to a Pakistani parade held the previous day); Id. at 13 (Shahawar brings up the previous day’s parade
again, where he says somebody said they wanted to kill President Bush, and was shot); Id. at 13, 14, 15, 17, 22,
24, 25, 26.

232

Gov’t Ex. 19-A, supra note 230, at 11 (Eldawoody: “So if it’s searched and everything are you going to back
out?” Shahawar: “No.” Eldawoody: “Are you gonna tell him no?” Shahawar: “What? About what?” Eldawoody:
“About that, you know, doing jihad?” Shahawar: “No. I’m not talking about jihad. Because before jihad there are
some circumstances, right?”); Id. at 15 (Shahawar: “I will, I will stay for a while being until I have to, you know, ask
my mom’s permission. Every single thing matters, you know? I will make it this way.” Eldawoody: “Well, okay. Here
is the point. You willing to do it?” Shahawar: “I will work with those brothers, that’s it. As a planner or whatever.
But to putting there? I’m not sure.”); Id. at 18 (Shahawar: “I will see what happens. I will agree to work with those
brothers but not to putting the ting over there.” Eldawoody: “Oh, okay. Whichever you say. The other time you said

233

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different. Now you say different. I don’t know what’s next time. Do you want me to call up Hakim a little bit to tell
him your opinion? . . .” Shahawar: “No, you go and talk to him no problem. In shallah. Tell him every single thing
that I told you.” Eldawoody: “That you’re—are not going to do it.” Shahawar: “No, I will not be the one to do it.”) Id.
at 19 (Eldawoody: “Okay. Okay. And Matin, you are out of jihad.” Shahawar: “You, whatever you think. Brother.”
Shahawar: “I am asking you.” Shahawar: “I’m not talking about jihad. Planning is also jihad, brother. I’m only talking
about the situation that I am going to be helping in this situation and I want to be ready.” Eldawoody: “Help, what
kind of help?” Shahawar: “Any kind of help, brother, it doesn’t matter to me.”); Id. at 22 (Eldawoody: “Okay. So
let’s go. So your answer is?” Shahawar: “[Unintelligible]” Eldawoody: “Huh?” Shahawar: “[Unintelligible].” [Pause]
Shahawar hands Elshafay the seat belt, and Elshafay says “Thank you.”); Id. at 23 (after a pause, Eldawoody: “So
what do you both guys are willing to do? What do you want me to tell him?” Elshafay offers to drop the bomb, but
says he’s inexperienced. Elsafay and Eldawoody discourse. Then, after a pause, Eldawoody: “So what’s your part,
Matin? Your part is out? You don’t wanna nothing? You don’t wanna help?” Shahawar: “With the 34th thing?”
Eldawoody: “Yeah, 34th. They actually refused, ah, the idea of the Verrazano, they told me they refused the idea
of the Verrazano.” Shahawar: “[Unintelligible] I see you started smoking again. You have to control yourself.” They
go on to talk about smoking for a while.) Id. at 31 (after a pause, Eldawoody: “So you want to do anything except
for carrying.” Shahawar: “Yeah planning—anything, you can use me.” Eldawoody: “Okay, that’s what I’m going to
tell him.”).
234

Gov’t Ex. 19-A, supra note 230, at 4-35.

235

Id. at 15.

236

Id. at 17.

237

Id.

238

Id.

239

Gov’t Ex. 19-A, supra note 230, at 17.

240

Id. at 35.

Id. at 45. Habeas Petition, supra note 220, at 8 (citing Elshafay’s trial testimony). However, because Shahawar
hadn’t taken any affirmative steps to withdraw from the conspiracy after August 23, the defense was not available
to him at trial.

241

242

Habeas Petition, supra note 226, at 12.

243

Id. at 8 (citing trial transcript).

244

Id. at 11-12.

245

U.S. v. Siraj, 468 F. Supp. 2d 408, 414 (E.D.N.Y. 2007).

246

Id. at 416; Motion for New Trial, supra note 202, at 21-22 (summarizing evidence used in rebuttal).

Press Release, U.S. Dep’t of Justice, Shahawar Matin Siraj Sentenced to Thirty Years of Imprisonment for
Conspiring To Place Explosives at the 34th Street Subway Station in New York (Jan. 8, 2007), available at http://
www.justice.gov/siraj_pr.pdf.

247

248
William K. Rashbaum, 3 Relatives of Plotters Are Held by Officials, N.Y. Times, Jan. 10, 2007, available at
http://www.nytimes.com/2007/01/10/nyregion/10plot.html?pagewanted=print.
249
Jennifer Manley, Pakistani Family Held, Advocates Mobilize, Queens Chron., Jan. 18, 2007, available at http://
www.zwire.com/site/news.cfm?newsid=17727444&BRD=2731&PAG=461&dept_id=574903&rfi=6.

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250

CHRGJ Interview with Saniya Siraj, supra note 199.

David Harris describes a similar story involving a family in Beaverton, Oregon where a local attorney who
regularly attended a mosque that had been infiltrated by informants was erroneously arrested. The community
was aware that informants were in their midst and were reluctant to rally to support the defendant or his family, out
of fear that they themselves would become the subjects of government scrutiny and possibly arrest. The attorney
was released after several weeks, received an apology from the FBI, and settled a lawsuit against the FBI for two
million dollars. Harris, supra note 2, at 167-68.

251

252

See supra note 17.

253

See supra notes 5-8, 17.

254
International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), UN GAOR, 21st Sess.,
Supp. (No. 16), at 52, UN Doc. A/6316 (Dec. 16, 1966), 999 U.N.T.S.171, entered into force March 23, 1976,
available at http://www.ohchr.org/english/law/ccpr.htm [hereinafter ICCPR]; United Nations Treaty Collection,
Status of International Covenant on Civil and Political Rights, available at http://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (last visited Apr. 28, 2011); International Convention
on the Elimination of All Forms of Racial Discrimination (ICERD), G.A. Res. 2106 (XX), Annex, U.N. GAOR 20th
Sess. Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force Jan. 4, 1969,
available at http://www2.ohchr.org/english/law/cerd.htm; United Nations Treaty Collection, Status of International
Convention on the Elimination of All Forms of Racial Discrimination, http://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en (last visited Apr. 28, 2011).

See ICCPR, supra note 254, art. 2(1) (“Each State Party to the present Covenant undertakes to respect and
to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.”); id. art. 26 (“All persons are equal before the law and
are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or
other status.”); and ICERD, supra note 254, art. 1 (“the term ‘racial discrimination’ shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”); and
art. 5 (“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties
undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic origin, to equality before the law…”).

255

The ICCPR, supra note 254, only allows distinctions between non-citizens and citizens for the right to
participate in public affairs, to vote and hold office, and to have access to public service (Art. 25) and the right to
freedom of movement (Art. 12(1)). See also UN H.R. Comm., General Comment 15: The Position of Aliens under
the Covenant (Twenty-Seventh session, 1986), ¶2 reprinted in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 140 (2003), available at
http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/bc561aa81bc5d86ec12563ed004aaa1b?Opendocument
(“Exceptionally, some of the rights recognized in the Covenant are expressly applicable only to citizens (art. 25),
while article 13 applies only to aliens. However, the Committee’s experience in examining reports shows that in
a number of countries other rights that aliens should enjoy under the Covenant are denied to them or are subject
to limitations that cannot always be justified under the Covenant.”); id. ¶3 (“It is in principle a matter for the State
to decide who it will admit to its territory.”). The CERD Committee has made clear that even though ICERD
permits States to differentiate between citizens and non-citizens (Art. 1(2)), they must still “avoid undermining
the basic prohibition on discrimination.” UN Committee on the Elimination of Racial Discrimination, General
Recommendation No. 30: Discrimination Against Non Citizens, ¶¶ 1-3, U.N. Doc. CERD/C/64/Misc.11/rev.3
(Oct. 1, 2004) [hereinafter CERD General Recommendation 30].
256

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This duty is primarily set out in Article 6 of the ICCPR, supra note 254, which reads: “1. Every human being
has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his
life…” Article 6 imposes a legal duty on States to exercise due diligence in protecting the life of every person
within their territory and jurisdiction from attacks by criminals. See Jiménez Vaca v. Colombia, Communication No.
859/1999, U.N. Doc. CCPR/C/74/D/859/1999, ¶7.3 (UN H.R. Comm. 2002). This duty includes an obligation
to take reasonable and appropriate measures to protect the life of persons under a State’s jurisdiction and to be
cognizant of threats to their personal security. Delgado Páez v. Colombia, Communication No. 195/1985, U.N.
Doc. CCPR/C/39/D/195/1985, ¶5.5 (UN H.R. Comm. 1990).

257

258
See, e.g., UN H.R. Comm., Concluding Observation: Estonia ¶8, U.N. Doc. CCPR/CO/77/EST (2003). See
also Report of the Independent Expert on the Protection of Human Rights and Fundamental Freedoms While
Countering Terrorism ¶¶7, 8, UN Doc. E/CN.4/2005/103 (2005), available at http://www.ohchr.org/english/
bodies/chr/docs/61chr/E.CN.4.2005.103.pdf (stating that human rights and the fight against terror “are not
antithetical, but complementary responsibilities of States,” and recalling that “when drafting the [ICCPR] and
various regional human rights instruments, States were keenly aware of the need to strike a realistic balance
between the requirements of national security and the protection of human rights.”); Office of the U.N. High
Commissioner for Human Rights (OHCHR), Digest of Jurisprudence of the U.N. and Regional Organizations on
The Protection of Human Rights While Countering Terrorism 3, 11-12 (2003), available at http://www.ohchr.
org/Documents/Publications/DigestJurisprudenceen.pdf; International Commission of Jurists, Berlin Declaration
on Upholding Human Rights and the Rule of Law in Combating Terrorism 1 (2004).

A line of cases before the European Court of Human Rights and the UN Human Rights Committee recognize,
for example, that rights of family members can be directly violated as a result of the enforced disappearance of a
loved one. The cases focus on Article 7 of the ICCPR which articulates the right against torture and other cruel,
inhuman, and degrading (CID) treatment, and the equivalent prohibition on torture and inhuman or degrading
treatment or punishment under Article 3 of the European Convention on Human Rights. The cases find violations
of Article 7 of the ICCPR and Article 3 of the European Convention arising out of ongoing emotional pain and
anxiety suffered by close family members of the disappeared and tortured as they campaigned for justice. To the
extent that the practices outlined in this Report violate the defendant’s right to a fair trial, then, there’s an argument
that the ongoing emotional suffering and anxiety suffered by the families as a result of these prosecutions could
constitute a direct violation of the family members’ rights. The extent of anxiety and stress suffered is an important
factor, as is the way the state responds to the family member’s demands for accountability. See Kurt v. Turkey,
App. No. 24276/94 (E.Ct.H.R Chamber Judgment), May 25, 1998, ¶¶ 130-34 (finding an Article 3 violation
on the grounds that a mother suffered inhuman or degrading treatment as a result of her son’s disappearance);
Cyprus v. Turkey, App. No. 25781/94 (E.Ct.H.R Grand Chamber Judgment) May 10, 2001, ¶¶ 154-58 (finding
an Article 3 violation on the grounds that families of disappeared Greek Cypriots suffered inhuman or degrading
treatment as a result of the disappearances); Tįmurtaş v. Turkey, App. No. 23531/94 (E. Comm’n. H.R. Decision),
Oct. 29, 1998, ¶¶ 302-09 (finding an Article 3 violation on the grounds that a father suffered inhuman or
degrading treatment as a result of his son’s disappearance); Quinteros v. Uruguay, U.N. Hum. Rts. Comm.,
Communication No. 107/1981, U.N. Doc. CCPR/C/OP/2 at 198 (1990 [first publication]), ¶ 14, (1981) (finding
an Article 7 violation on the grounds that a mother suffered rights violations, including as to Article 7, as a result
of her daughter’s torture and disappearance); Lyashkevich v. Belarus, U.N. Hum. Rts. Comm., Communication
No. 887/1999, U.N. Doc. CCPR/C/77/D/887/1999 ¶¶ 9.2, 10 (2003) (finding an Article 7 violation on the
grounds of “continued anguish and mental stress caused . . . [to] the mother of the condemned prisoner, by the
persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite”). The
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering
terrorism, Martin Scheinin, has also found that:

259

Counter-terrorism measures have had impermissible gendered collateral effects that are often
neither acknowledged nor compensated. Indeed, enforced disappearances of male detainees in
the name of countering terrorism have had “special resonance” for female family members, who
bear the burden of anxiety, harassment, social exclusion and economic hardship occasioned by
the loss of the male breadwinner. Similar effects ensue from the prolonged detention without

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trial of male family members, the practice of extraordinary rendition, and forced deportations of
male family members, undermining the enjoyment of economic, social and cultural rights, such
as the right to adequate housing, and the right to
family life.
…
As with other counter-terrorism measures that impact third parties (e.g., disappearances),
women in these families often bear the weight of these stresses, jeopardizing numerous
economic, social and cultural rights protected the International Covenant on Economic, Social
and Cultural Rights, including protection and assistance accorded to the family and to children
and young persons (art. 10); the right to an adequate standard of living, including adequate
food housing (art. 11); the right to health (art. 12); and the right to education (arts. 13 14). Such
measures also undermine the enjoyment of women’s various civil political rights guaranteed by
the International Covenant on Civil and Political Rights, such as the protection against arbitrary
or unlawful interference with family and privacy (art. 17) and protection of the family (art. 23).
United Nations, Report of the United Nations Special Rapporteur on the Promotion and Protection of Human
Rights and Fundamental Freedoms While Countering Terrorism, Martin Scheinin, U.N. Doc. A/64/211, ¶¶ 30-41
(Aug 3, 2009) (citing Counter-Terrorism Implementation Task Force working group on protecting human rights
while countering terrorism, Expert seminar on ‘The Impact of Terrorism and Counter-terrorism Measures on the
Enjoyment of Economic, Social and Cultural Rights (ESCR) (5-7 November 2008), U.N. Doc. A/HRC/10/9, ¶ 28
(2009)). The U.S. has not ratified the main instrument for the protection of economic, social and cultural rights,
the International Covenant on Economic, Social and Cultural Rights, but it nonetheless has specific obligations
under ICERD to guarantee equality in the enjoyment of economic, social and cultural rights. This is provided for
both in the definition of “racial discrimination” in Article 1(1) (which refers to restrictions on “human rights and
fundamental freedoms in the political, economic, social, cultural or any other field of public life”) and Article 5(e),
which specifically requires State parties to ensure equality in economic, social and cultural rights, including the
right to public health, medical care, social security and social services. International Covenant on Economic,
Social and Cultural Rights (ICESCR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc.
A/6316 (1966), entered into force Jan. 3, 1976, 993 U.N.T.S. 3, available at http://www.ohchr.org/english/law/
cescr.htm; Office of the U.S. High Comm’r for Human Rights, Int’l Covenant on Social and Cultural Rights New
York, 16 Dec.1966, available at http://www.ohchr.org/english/countries/ratification/3.htm. See also Amnesty
Int’l, Pakistan: Human Rights Ignored in the “War on Terror” 59-61, AI Index ASA 33/036/2006 (September
2006); Al-Amin Kimathi & Altan Butt, eds., Muslim Human Rights Forum, Horn of Terror, 19-21(2008).
Article 14 of the ICCPR guarantees, inter alia, the rights “to a fair and public hearing by a competent,
independent and impartial tribunal established by law;” “to be tried without undue delay;” “to not be compelled to
testify against himself”; “to have adequate time and facilities for the preparation of his defense and to communicate
with counsel of his own choosing”; “to be presumed innocent until proven guilty”; and to have a “conviction and
sentence [be] reviewed by a higher tribunal.” Arts. 14(1), (2), (3), (5) ICCPR, supra note 254. Under Article 2
of the ICCPR, States parties must “respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” ICCPR
Article 26 reinforces that “All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.” ICERD supra note 254, art. 5(a)
(“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake
to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the
following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice…”).

260

Article 6 of the European Convention on Human Rights (ECHR) contains a right to fair trial provision similar
to that found in Article 14 of the ICCPR. Specifically, ECHR Article 6 guarantees, inter alia, the right to “a fair

261

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and public hearing within a reasonable time by an independent and impartial tribunal established by law;” to “be
presumed innocent until proved guilty according to law;” to “be informed promptly… of the nature and cause of
the accusation against him;” to “have adequate time and the facilities for the preparation of his defence” and to
“examine or have examined witnesses against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him.” In determining the content of the ICCPR,
the International Court of Justice has looked to analogous regional human rights treaties and decisions. See
Case Concerning Ahmadou Sadio Diallo (Rep. of Guinea v. Dem. Rep. of the Congo), I.C.J., Nov. 30 2010, ¶68
(interpreting Article 13 of the ICCPR in light of the European Court of Human Rights’ interpretation of Article 1 of
Protocol No. 7 of the European Convention of Human Rights).
262
Van Mechelen and Others v. the Netherlands, App. nos. 21363/93, 21364/93, 21427/93 and 22056/93
(Chamber Judgment), Apr. 23 1997, ¶50, available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=htm
l&documentId=695907&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C11
66DEA398649; Teixeira de Castro v. Portugal, App. no. 25829/94 (Chamber Judgment), Jun. 9, 1998, ¶34,
available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696070&portal=hbkm&sourc
e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649; Ramanauskas v Lithuania, App.
no. 74420/01 (Grand Chamber Judgment), Feb. 5, 2008, ¶55, available at http://cmiskp.echr.coe.int/tkp197/
view.asp?action=html&documentId=828596&portal=hbkm&source=externalbydocnumber&table=F69A27FD8F
B86142BF01C1166DEA398649.
263

Teixeira de Castro, App. no. 25829/94, at ¶ 38; Ramanauskas, App. no. 74420/01, at ¶ 55.

Teixeira de Castro, App. no. 25829/94, at ¶ 38-39; Ramanauskas, App. no. 74420/01, at ¶ 73. See also
Declan Roche, Between Rhetoric and Reality: Sociological and Republican Perspectives on Entrapment, 4 Int’l
J. Evidence & Proof 77, 86 (2000) (noting that Teixeira has implications for Australia because the right to a fair
trial in Article 14 of the ICCPR mirrors Article 6 of the ECHR); Simon Bronitt, Entrapment, Human Rights and
Criminal Justice: A Licence to Deviate? 29 Hong Kong L.J. 216 (1999) (noting that the Teixeira de Castro
decision has ramifications for Hong Kong since the right to a fair trial is guaranteed by Article 14 of the ICCPR,
to which Hong Kong is a State party).
264

265

Teixeira de Castro, App. no. 25829/94, at ¶ 38; Ramanauskas, App. no. 74420/01, at ¶ 67.

See also Weeks v. United States, 232 U.S. 383 (1914) (deeming evidence gathered in violation of the Fourth
Amendment inadmissible at trial).

266

See, e.g., UN Committee on the Elimination of Racial Discrimination, Statement on Racial Discrimination
and Measures to Combat Terrorism, ¶ 4, U.N. Doc. E/CN.4/Sub.2/2003/23/Add. 1 (Nov. 1, 2002), available
at http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/f4b63c02a6cc5e33c1256c690
034a465/$FILE/N0264357.doc (recalling that “the prohibition of racial discrimination is a peremptory norm of
international law from which no derogation is permitted”).

267

268
Art. 4(1) ICCPR, supra note 254 (“Nothing in the present Covenant may be interpreted as implying for any
State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the
rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present
Covenant”).
269

Id. arts. 2(1), 26.

270

Art. 2(1) ICERD, supra note 254.

271

Id. Art. 1(1).

UN Comm. on H.R., Implementation of the Programme of Action for the Third Decade to Combat Racism and
Racial Discrimination, UN Doc. E/CN.4/1997/68/Add.1 (Dec. 5, 1996) (“[A]lthough religion was not included
in the Convention as one of the grounds on which racial discrimination was prohibited … [t]he Committee itself
272

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sometimes had to take into account religious aspects when they appeared to be part of a consistent trend of
discrimination against some people”).
273

See supra note 22.

274

See infra Part II.

Irreversible Consequences, supra note 15, at 20. The Human Rights Committee has stated that distinctions
under Article 26 can only be consistent with the Covenant if they are reasonable, objective, and aimed at
achieving a purpose which is reasonable under the Covenant. U.N. H.R. Comm, General Comment No. 18:
Non-Discrimination (Thirty-Seventh session, 1989), ¶13, U.N. Doc_HRI\GEN\1\Rev.1 at 26. [hereinafter HRC
General Comment No. 18] (“the Committee observes that not every differentiation of treatment will constitute
discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a
purpose which is legitimate under the Covenant”). Karakurt v. Austria, Communication No. 965/2000, ¶ 8.3,
U.N. Doc. CCPR/C/74/D/965/2000 (UN H.R. Comm. 2002); Broeks v. The Netherlands, Communication
No. 172/1984, U.N. Doc. CCPR/C/OP/2 at 196 (UN H.R. Comm. 1984 ); Sprenger v. The Netherlands,
Communication No. 395/1990, U.N. Doc. CCPR/C/44/D/395/1990 (UN H.R. Comm. 1992); Kavanagh v.
Ireland, Communication No. 819/1998 U.N. CCPR/C/76/D/1114/2002/Rev.1 (UN H.R. Comm. 1999).

275

UN Comm. on the Elimination of Racial Discrimination, General Recommendation No. 14: Definition of Racial
Discrimination, (Forty-Second session, Mar. 22, 1993), ¶ 2, U.N. Doc A/48/18 at 114, [hereinafter CERD
Committee General Recommendation 14]; HRC General Comment No. 18, supra note 275, ¶ 7. Irreversible
Consequences, supra note 15, at 21.

276

See supra note 22. Lininger, Sects, Lies, and Videotape, supra note 22, at 1244 (“If there is no specific
evidence supporting suspicion of a mosque, and the F.B.I. investigates the mosque anyway, the only explanation
for the investigation is a universal suspicion of Muslims.”), 1246-1247 (“Some observers have found the
Department’s denials of racial and religious profiling to be disingenuous when contrasted with the actual activities
of federal law enforcement agents.” (citing Toni Locy et al., Al-Qaeda Records Solve Many 9/11 Puzzles, But
Others Linger, U.S.A. Today, Aug. 29, 2002, (“U.S. officials say the new policy is not designed to target mosques,
but the F.B.I. is focusing on mosques as never before.”); Daniel Pipes, Counterterrorism or Witch Hunt?, Nat’l
Post, Feb. 4, 2003, available at 2003 WL 11542987 (“arguing that high-level officials in Justice Department
should not be criticizing racial profiling when F.B.I. agents have no choice but to use this strategy”) (internal
quotation marks omitted)). In 2010, the U.N. Human Rights Council reviewed the U.S. human rights record as
part of the Universal Periodic Review process and recommended that the U.S.: “Review, with a view to their
amendment and elimination, all laws and practices that discriminate against African, Arab and Muslim Americans,
as well as migrants, in the administration of justice, including racial and religious profiling” (recommendation 64)
and that the U.S. “Devise specific programs aimed at countering growing Islamophobic and xenophobic trends
in society” (recommendation 98). The U.S. indicated its support in part for both recommendations. UN Working
Group on the Universal Periodic Review, Report of the Working Group on the Universal Periodic Review: United
States of America, (Sixteenth session, Human Rights Council, Jan. 4, 2011), U.N. Doc A/HRC/16/1, available at
http://www.state.gov/documents/organization/158198.pdf.
277

278

See supra Part I.B.

Behavioral profiling is sometimes offered as a “non-discriminatory” alternative to racial profiling. However,
the behavioral patterns that law enforcement officers are told indicate a potential terrorist threat are often just
proxies that result in the same profiling of Muslims. Irreversible Consequences, supra note 15, at 7 (“Officers are
encouraged to look for persons ‘mumbling (prayer)’; ‘…sudden changes in behavior—for example, a fanatically
religious person visiting sex clubs (or the reverse)…’; and the smell of ‘scented water (for ritual purification).’
These religion-based indicators, while neutral on their face, when read in conjunction with other parts of the
Training Key that make explicit references to ‘shahid,’ ‘jihad’ and ‘Muslim zealot,’ will lead to the disproportionate
targeting of Muslims or those perceived to be Muslim”). See also Hussain, Defending the Faithful, supra note 22,
at 926 (noting that “conduct-based” profiling can disproportionately burden a single minority group by targeting
conduct that is significantly correlated with membership but is in no way inherently indicative of wrongdoing”).
This conflation of race, religion, and other identifiers has been termed “cultural profiling,” or the substitution of
279

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expressions of culture as a proxy for identifying individuals who may be predisposed to commit terrorist acts. Id.
280

Silber & Bhatt, NYPD Radicalization Report, supra note 19, at 33.

281

See infra Part I.A. and note 22.

Art. 1(3) ICERD, supra note 254; “Under the Convention, differential treatment based on citizenship or
immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the
objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional
to the achievement of this aim.” CERD Committee General Recommendation 30, supra note 256, ¶ 4. See
also CERD Committee General Recommendation 14, supra note 276, ¶ 2; U. N. Committee on the Elimination
of Racial Discrimination, General Recommendation No. 20: Non-discriminatory implementation of rights and
freedoms (Art. 5), ¶ 2, U.N. Doc. HRI\GEN\1\Rev.6, at 208 (Mar. 15, 1996); Irreversible Consequences,
supra note 15, at 20. The Human Rights Committee has also stated that distinctions under Article 26 can only
be consistent with the Covenant if they are reasonable, objective, and aimed at achieving a purpose which is
reasonable under the Covenant. HRC General Comment 18, supra note 275, at ¶ 13 (“the Committee observes
that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are
reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.”). Karakurt
v. Austria, Communication No. 965/2000, ¶ 8.3, U.N. Doc. CCPR/C/74/D/965/2000 (UN H.R. Comm. 2002);
Broeks v. The Netherlands, Communication No. 172/1984, U.N. Doc. CCPR/C/OP/2 at 196 (UN H.R. Comm.
1984 ); Sprenger v. The Netherlands, Communication No. 395/1990, U.N. Doc. CCPR/C/44/D/395/1990 (UN
H.R. Comm. 1992); Kavanagh v. Ireland, Communication No. 819/1998 U.N. CCPR/C/76/D/1114/2002/Rev.1
(UN H.R. Comm. 1999).

282

283

Irreversible Consequences, supra note 15, at 31.

284

Id.

HRC, General Comment 18: Non-discrimination, supra note 275, ¶ 13. For examples of how this test is applied,
see, e.g., Araujo-Jongen v. The Netherlands, Communication No. 418/1990, U.N. Doc. CCPR/C/49/D/418/1990,
¶ 7.4, (UN H.R. Comm. Oct. 22, 1993) (finding that the requirement that applicants for unemployment benefits
be unemployed at time of application is reasonable and objective given that the purpose of unemployment-benefits legislation is to provide assistance to the unemployed); Danning v. The Netherlands, Communication No.
180/1984, U.N. Doc. CCPR/C/OP/2 at 205, ¶ 1.4 (UN H.R. Comm. Apr. 9, 1997) (finding that differentiation
between benefits received by married couples and couples merely cohabiting are based on reasonable and
objective criteria); Foin v. France, Communication No. 666/1995, U.N. Doc. CCPR/C/67/D/666/1995, ¶ 10.3
(UN H.R. Comm. Nov. 9, 1999) (finding that the decision by France to require conscientious objectors to serve
double the period of military service violates Article 26 of the ICCPR as differentiation was based on purported
need to ascertain whether beliefs of conscientious objectors was genuine, which is not reasonable and objective);
Gueye v. France, Communication No. 196/1985, U.N. Doc. CCPR/C/35/D/196/1985, ¶ 9.5 (UN H.R. Comm.
Apr. 6, 1989) (finding that differentiation by which soldiers of Senegalese origin were paid inferior pensions to
soldiers of French origin in the French army serving in Senegal was not reasonable and objective and noted
that mere administrative convenience is not a sufficient justification for differentiating in conflict with Article 26
of the ICCPR); Järvinen v. Finland, Communication No. 295/1988, U.N. Doc. CCPR/C/39/D/295/1988, ¶¶
6.4 - 6.6 (UN H.R. Comm. Aug. 15, 1990) (finding that a 16- month period of civilian, non-combative service
for conscientious objectors, compared to only 8 months for combat service, was non-punitive and justifiable);
Snijders v. The Netherlands, Communication No. 651/1995, U.N. Doc. CCPR/C/63/D/651/1995, ¶ 8.3 (UN
H.R. Comm. Jul. 27, 1998) (finding that the requirement that non-resident beneficiaries of state health insurance
pay a contribution when resident beneficiaries are not required to do so was justified on the basis that failure to
make this differentiation would deplete the funds available to the insurance scheme). See also CERD Committee
General Recommendation 14, supra note 276, ¶ 2.
285

Irreversible Consequences, supra note 15, at 31; Broeks v. The Netherlands, supra note 282, at ¶ 13. See,
e.g., Danning v. the Netherlands, supra note 285, ¶ 13 (“The right to equality before the law and to equal protection
of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation
based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of

286

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article 26.”); Gueye v. France, supra note 285, ¶ 9.4 (“‘the right to equality before the law and to equal protection
of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation
based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of
article 26’”); Cheban v. Russian Federation, Communication No. 790/1997, U.N. Doc. CCPR/C/72/D/790/1997,
¶ 7.2 (UN H.R. Comm. Jul. 24, 2001) (“If distinctions are made, they must be based on objective and reasonable
grounds”); Julian v. New Zealand, Communication No. 601/1994, U.N. Doc. CCPR/C/59/D/601/1994, ¶ 8.5 (UN
H.R. Comm. Apr. 3, 1997) (noting the Committee’s prior jurisprudence “according to which a distinction based
on objective and reasonable criteria does not constitute discrimination within the meaning of article 26 of the
Covenant…”); Neefs v. The Netherlands, Communication No. 425/1991, U.N. Doc. CCPR/C/51/D/425/1990, ¶
7.2 (UN H.R. Comm. Jul. 15, 1994) (“the right to equality before the law and to the equal protection 55 of the law
without any discrimination does not make all differences of treatment discriminatory. A differentiation based on
reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26.”);
Oulajin v. The Netherlands, Communication No. 426/1990, U.N. Doc. CCPR/C/46/D/406/1990/426/1990. ¶
7.3 (UN H.R. Comm. Oct. 23, 1992) (“The principle of non-discrimination and equality before the law implies
that any distinctions in the enjoyment of benefits must be based on reasonable and objective criteria.”); Pauger
v. Austria, Communication No. 716/1996, U.N. Doc. CCPR/C/44/D/415/1990, ¶ 7.3 (UN H.R. Comm. Mar. 26,
1992) (“The Committee reiterates its constant jurisprudence that the right to equality before the law and to the
equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A
differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the
meaning of article 26”).
Irreversible Consequences, supra note 15, at 31. See, e.g., Kall v .Poland, Communication No. 552/1993,
U.N. Doc. CCPR/C/60/D/552/1993 (UN H.R. Comm. Jul. 14, 1997) (individual opinion by Committee members
Elizabeth Evatt and Cecilia Medina Quiroga, cosigned by Christine Chanet, dissenting) (disagreeing with the
Committee’s finding that the rights of the applicant had not been violated, and stating that the test of “discrimination”
under the Covenant requires the Committee to examine whether the classification in question “was both a
necessary and proportionate means for securing a legitimate objective”); Toonen v. Australia, Communication No.
488/1992, U.N. Doc. CCPR/C/50/D/488/1992, ¶¶ 6.2 - 6.4 (UN H.R. Comm. 2004) (with Australia identifying
the following test to determine whether a measure constitutes “discrimination”: (a) Whether Tasmanian laws
draw a distinction on the basis of sex or sexual orientation; (b) Whether Mr. Toonen is a victim of discrimination;
(c) Whether there are reasonable and objective criteria for the distinction; (d) Whether Tasmanian laws are a
proportional means to achieve a legitimate aim under the Covenant); Kristjánsson v. Iceland, Communication No.
951/2000, U.N. Doc. CCPR/C/78/D/951/2000, ¶ 7.2 (UN H.R. Comm. Jul. 16, 2003) (State party arguing that
“the aim of the differentiation is lawful and based on objective and reasonable considerations and that there is
reasonable proportionality between the means employed and the aim pursued”).
287

See supra notes 265 (the right to non-discrimination is a peremptory norm under international law), 258 (states
parties to the ICCPR are obligated to ensure the right to a fair trial); infra notes 290 (states parties to the ICCPR
are obligated to ensure the right to freedom of thought, conscience, and religion) and 291 (states parties to the
ICCPR are obligated to ensure the right to freedom of opinion and expression).

288

289

See supra note 258.

See infra notes 5-8; Lininger, Sects, Lies, and Videotape, supra note 22, at 1254-1255 (“Counterterrorism
investigations have drained a tremendous amount of the F.B.I.’s resources in recent years. In a 2002 audit of the
F.B.I., Comptroller General David M. Walker discussed a ‘massive move of resources to counterterrorism.’ F.B.I.
Director Robert Mueller has noted that the number of personnel devoted to counterterrorism has doubled since
September 11, 2001. Within the counterterrorism program, the F.B.I. has devoted its resources almost entirely to
investigating threats posed by Muslims… Thus, on many levels, the preoccupation with religion has skewed the
allocation of resources in the F.B.I.”); New Powers, New Risks, supra note 42, at 32 (“There is general consensus
that profiling is ineffective; nonetheless, law enforcement has engaged in several tactics targeted predominantly at
the Muslim community as a whole, and with unfortunate effects. Indeed these many domestic anti-terror policies
do not seem to have made us safer—in fact, the opposite might be true. In some cases, data collected under these
programs remains unanalyzed, wasting countless man hours”). Illustrating the costliness of current counterterrorism
techniques, Omar Mahmoud, an informant in the Fort Dix Five case, is alleged to have been paid $238,000 for a little
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more than a year’s work. Daphne Eviatar, Terrorism Cases Hinge on Paid Informants, Wash. Ind., Dec. 19, 2008,
available at http://washingtonindependent.com/22674/terrorism-cases-hinge-on-paid-informants.
Racial profiling and targeting of a particular community in law enforcement efforts “sends the message to
minorities that they are viewed at all times as potential criminals; that they are not valued members of society;
and that they cannot rely on the police for protection,” “exaggerates any differences that do exist between that
community and the population at large,” and “perpetuate[s] and exacerbate[s] inequality, negative stereotypes
about minorities, and discrimination and violence based on these stereotypes.” New Powers, New Risks, supra
note 42, at 36. See also Americans on Hold, supra note 15, at 30; Ahmad, supra note 22.

291

292

Art. 18 ICCPR notes:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right
shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either
individually or in community with others and in public or private, to manifest his religion or belief
in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a
religion or belief of his choice.

Art. 19 ICCPR (providing, inter alia, that, “1. Everyone shall have the right to hold opinions without interference;”
and “2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice”).

293

U.N. H.R. Comm, General Comment No. 22, Article 18: The Right to Freedom of Thought, Conscience and
Religion, (Forty-Eighth session, 1993), ¶1, U.N. Doc. CCPR/C/21/Rev.1/Add.4. Article 18(3) does qualify that,
“Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of
others.” Similarly, Article 19(3) of the ICCPR notes that the right to freedom of expression carries with it special
duties and responsibilities: “It may therefore be subject to certain restrictions, but these shall only be such as are
provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of
national security or of public order (ordre public), or of public health or morals.” However, these limitations are not
applicable to the issues that are the subject of this Report. The Human Rights Committee has, for example, stated
that “paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified
there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national
security.” The Committee also asserted that: “Limitations may be applied only for those purposes for which they
were prescribed and must be directly related and proportionate to the specific need on which they are predicated.
Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.” Id. ¶ 7.
294

295

Art. 19(2) ICCPR, supra note 293.

Here it is important to note that empirical research has shown that there is no linkage between Islam and
terrorism, in fact suggesting that strong religious convictions may actually reduce the likelihood that an individual
will commit violent acts in the name of Islam. See Patel, Rethinking Radicalization, supra note 13, at 10 (“A recent
study of 117 homegrown terrorists in the United States and United Kingdom (“FDD Study”) exam­ined the linkage
between terrorism and a conservative understanding of Islam….the FDD Study was unable to establish that a
significant proportion of actual terrorists exhibited the “religious” behaviors identified as indicative of radicalization.
For example, only 17.1 percent of the sample exhibited low tolerance for perceived theological deviance and only
15.4 percent of the sample attempted to impose their religious beliefs on others. The relatively low correlation
between religiosity and terrorism—in a study that seemed aimed at finding such a correlation—is a strong indication
that conserva­tive religious belief may play a lesser role in radicalization than one might assume. Overall, the
available research does not support the view that Islam drives terrorism or that observing the Muslim faith—even
a particularly stringent or conservative variety of that faith—is a step on the path to violence. In fact, that research
suggests the opposite: Instead of promoting radicalization, a strong religious identity could well serve to inoculate
people against turning to violence in the name of Islam.”).

296

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U.N. H.R. Comm, Draft General Comment No. 34 (Upon completion of the first reading by the Human Rights
Committee), Article 19, (One Hundred and First session, 2011), ¶8, U.N. Doc. CCPR/C/GC/34/CRP.6. The
Human Rights Committee is in the process of revising its general comment on Article 19 freedom of opinion,
expression, and information. As of this writing, it had published a draft of what will become General Comment
No. 34. The Draft General Comment notes, “No person may be subject to the impairment of any rights under the
Covenant on the basis of his or her actual, perceived or supposed opinions. All forms of opinion are protected,
including opinions of a political, scientific, historic, moral or religious nature. It is incompatible with paragraph
1 to criminalise the holding of an opinion. The harassment, intimidation or stigmatisation of a person, including
arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of article
19, paragraph 1.” See also 2010 DOJ OIG Review of the FBI’s Investigations of Certain Domestic Advocacy
Groups, supra note 51, at 186-91 (finding that “in some cases. . . the FBI extended the duration of investigations
involving advocacy groups or their members without sufficient basis. This had practical impacts on subjects,
whose names were maintained on watchlists as a result and whose travels and interactions with law enforcement
were tracked.”).
297

Hussain, Defending the Faithful, supra note 22, at 934 (“[A]pplication of the state’s coercive investigatory
powers to members of [a] community can significantly deter their cultural expression. The greater the dignitary and
stigmatic costs to the individuals who are profiled, the more likely that fear of future scrutiny will pervasively chill
other community members’ willingness to engage in conduct that defines them”).

298

299

Americans on Hold, supra note 15.

Harris, supra note 2 (describing the chilling effect of widespread infiltration of informants and undercover
police officers on the Muslim community including a Muslim high school senior who now thinks “Who is around?”
before talking about politics; a teacher who asserted that it’s “like a police state;” and a Palestinian immigrant who
intentionally does not “curse out the system.”); RWG Racial Profiling Report, supra note 22, at 31 (describing
an incident in February 2009 in which local residents in CA discovered that their mosques had been infiltrated
by the FBI. “Local residents report that the surveillance caused them to avoid the mosques and pray at home,
to avoid making charitable contributions—which is a fundamental tenet of the Muslim faith—and to refrain from
having conversations about political issues such as U.S. foreign policy”). At trial, Dritan Duka’s defense attorney
Michael Huff described the Duka brothers’ internalization of Islamophobia and the assumption that all Muslims
are terrorists, “[They felt as if] you can’t trust Muslims in the United States anymore, all of them terrorists, all of
them are here to do us harm. So they felt muzzled. They felt like they couldn’t speak their mind. That they couldn’t
talk about their religion…But they knew, and Tony [Dritan] says it over and over again, you got to be careful
what you say, people listen and people might hear what you say and take it out of context. You got to be careful.
All the time he says that. They felt muzzled. They felt like they couldn’t express themselves.” Fort Dix Five Trial
Transcript, at 1583/1-13. New Powers, New Risks, supra note 42, at 30 (citing evidence that Muslims are avoiding
going to mosques and praying at home instead – Muslim leaders have reported a decrease in attendance at
religious services; that some mosques have requested that speakers avoid political messages; and that charitable
donations to Muslim organizations have decreased). This kind of self-censorship violates the right to free speech
and expression protected under both the First Amendment and the ICCPR and the inability to worship freely
violates the right to freedom of religion also protected under these same instruments.
300

Pew Research Center, Muslim Americans: Middle Class and Mostly Mainstream (2007), http://pewresearch.
org/pubs/483/muslim-americans (last visited Apr. 29, 2011).

301

302

CHRGJ Interview with Arun Kundnani, supra at note 34.

303

Id.

United Nations, Report of the United Nations Special Rapporteur on the Promotion and Protection of Human
Rights and Fundamental Freedoms While Countering Terrorism, Martin Scheinin, Mission to the United States of
America, A/HRC/6/17/Add.3, ¶ 65 (November 22, 2007).

304

305

Article 2(3) of the ICCPR states:

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Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Meanwhile in their General Comment No. 31, the UN Human Rights Committee has noted:
Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights
States Parties must ensure that individuals also have accessible and effective remedies to
vindicate those rights. Such remedies should be appropriately adapted so as to take account
of the special vulnerability of certain categories of person, including in particular children.
The Committee attaches importance to States Parties’ establishing appropriate judicial and
administrative mechanisms for addressing claims of rights violations under domestic law.
The Committee notes that the enjoyment of the rights recognized under the Covenant can
be effectively assured by the judiciary in many different ways, including direct applicability
of the Covenant, application of comparable constitutional or other provisions of law, or the
interpretive effect of the Covenant in the application of national law. Administrative mechanisms
are particularly required to give effect to the general obligation to investigate allegations of
violations promptly, thoroughly and effectively through independent and impartial bodies.
National human rights institutions, endowed with appropriate powers, can contribute to this
end. A failure by a State Party to investigate allegations of violations could in and of itself give
rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential
element of the right to an effective remedy.
U.N. H.R. Comm, General Comment No. 31: The Nature of The General Legal Obligation Imposed on States
Parties to the Covenant (Eightieth session, 2004), ¶15, U.N. Doc. CCPR/C/21/Rev.1/Add.13.
Muslim Americans challenging the government’s various practices of targeted surveillance and scrutiny have
by and large failed in the courts. See, e.g., Hussain, supra note 22. As noted above, the entrapment defense has
never been successfully used in a terrorism trial. 2009 CLS Terrorist Trial Report Card, supra note 2, at 20.

306

Although states have an obligation under the right to life to protect national security, they must not do so at the
expense of their other human rights obligations, for example complying with the rights to freedom of expression,
opinion, and religion under Articles 18 and 19 of the ICCPR. See supra notes 292 and 293.

307

UN HR Council, Report of the Working Group on the Universal Periodic Review, United States of America, UN
Doc. A/HRC/16/11 (Jan. 4, 2011).

308

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Wake up, open your eyes, look around you, see how this world has changed… At
least take 5 minutes to look into these cases, and research, and look for real proof.

Lejla Duka, age 13 (daughter of Dritan Duka)

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Since the events of September 11, 2001, the United States government has been targeting
Muslims by sending paid, untrained informants into mosques and Muslim communities throughout
the country. This practice has led to the prosecution of more than 200 individuals in terrorismrelated cases.
Targeted and Entrapped: Manufacturing the “Homegrown Threat” in the United States examines
three high-profile terrorism prosecutions in which the government’s informants played a critical
role in instigating and constructing the plots that eventually led to prosecution. In all three cases,
the government sent paid informants into Muslim communities without any basis for suspicion of
current or eventual criminal activity. The government’s informants introduced, cultivated, and then
aggressively pushed ideas about violent jihad, encouraging the defendants to believe that it was
their duty to take action against the United States. The informants selected or encouraged the
proposed locations that the defendants would later be accused of targeting, and also provided the
defendants with—or encouraged the defendants to acquire—material evidence, such as weaponry or
violent videos, which would later be used to convict them. The defendants in these cases have all
been convicted and currently face prison sentences of 25 years to life.
The interviews featured in this Report, with families of the defendants, demonstrate the profound
toll these government policies are taking on Muslim communities. These prosecutions—and others
that similarly rely on the abusive use of informants—have also been instrumental to perpetuating
the government’s claim that the United States faces a “homegrown threat” of terrorism, and have
bolstered calls for the continued use of informants in Muslim communities.
Targeted and Entrapped builds on CHRGJ’s extensive expertise in the area of racial profiling and
counterterrorism. Drawing on court documents, interviews, and media accounts, the Report raises
questions about the government’s role in each of these cases. The Report considers key trends in
counterterrorism law enforcement policies that have facilitated these practices and evaluates the
fundamental human rights at stake. It concludes with policy recommendations aimed at ensuring
that the U.S. government lives up to its obligations to guarantee, without discrimination, the rights
to: a fair trial; freedom of religion, expression, and opinion; and an effective remedy.

CE NTE R FOR H U MAN R IG HTS AN D G LOBAL J USTICE
New York University School of Law
139 MacDougal Street, 5th Floor
New York, NY 10012
www.chrgj.org

© Lyric R. Cabral.
Lejla Duka holds
a picture of her
father Dritan,
which he mailed to
her from prison.

84

 

 

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