The issue of law enforcement entrapment of suspects on terrorism charges is back in the spotlight as one of the most widely known recent cases — concerning the Fort Dix 5 — returns to a courtroom on Wednesday.
Three Muslim brothers are appealing their convictions at a time when terrorism arrests of Muslims and the often controversial use by police and the FBI of confidential informants are once again in the headlines.
For example, prosecutors recently charged a man with a history of mental health issues — who had been talking to at least three confidential sources — with attempting to provide material support to the Islamic State in Iraq and the Levant (ISIL).
After a trial that lasted 12 weeks, on Dec. 22, 2008, Dritan, Shain and Eljvir Duka, Albanian immigrant brothers, were convicted and later sentenced to life in prison for what their supporters said in press release was their “questionable role in a government-manufactured ‘conspiracy’” to kill U.S. military members on a base in New Jersey — a “plot they literally had never heard of.”
It is a case that has been called one of the biggest terrorism prosecutions of Islamic radicals but now also perhaps among the most criticized post-9/11 entrapment examples.
The three brothers, who will be present in court, have rare separate hearings in Camden, New Jersey. The trial judge who presided over the original case will review the men’s appeals: motions for postconviction relief, which usually seek to have a sentence or conviction vacated or to request resentencing.
In this case the Dukas, who have been held in separate prisons, are seeking to have their convictions vacated, arguing that they did not receive a fair trial — more specifically, that their defense attorneys were not effective and that they were not allowed to testify.
“The fact that the court granted a hearing in this case is unusual and suggests maybe the court is troubled by the outcome. The outcome is clearly unjust. So we’re hoping that this is a signal that the court would like to take another look at the case,” said Steve Downs, a civil liberties attorney in Albany, New York.
Chris Christie, then the U.S. attorney for the district of New Jersey and now the state’s governor and a Republican presidential candidate, was responsible for prosecuting the original case. “The philosophy that supports and encourages jihad around the world against Americans came to live here in New Jersey and threaten the lives of our citizens through these defendants,” he said in 2007 at a federal courthouse. “Fortunately, law enforcement in New Jersey was here to stop them.”
Trouble for the Dukas started in the winter of 2006 when they and two other men went on vacation in the Pocono Mountains, in northeastern Pennsylvania. They recorded their activities, including horseback riding and shooting rented guns at a public range. In order to share the vacation experience, they went to Circuit City to make DVD copies so each person could have one.
“The Circuit City person turned in the video to the police and said, ‘These people are shouting out Allahu akbar while shooting weapons,’” Burim Duka, their youngest brother, said in the Intercept documentary “Entrapped.”
And that’s when the FBI got involved and started an investigation that lasted 15 months. Two government informants, Mahmoud Omar and Bakalli Besnik, who had criminal pasts and were paid some $400,000 combined, came up with, planned and lured five men — the three oldest Duka brothers, Mohamed Shnewer and Serdar Tatar — with a plot to attack a military base.
Omar and Shnewer “came up with a plot to strike Fort Dix. The informant needed Shnewer to say that my brothers were in on the plot,” Burim Duka said in “Entrapped.”
“But once the government seen that my brothers weren’t in and knew nothing about it, they created an illegal gun deal. Mahmoud Omar knew that my brothers were into guns … He set up the deal for my brothers to buy some weapons, and the weapons were provided by the FBI,” he added.
The Dukas have said they were interested in owning the guns to avoid the hassle of lining up to rent some on another vacation or for target shooting. Law enforcement put “two completely different theories together,” Downs said.
When the trial came around, Omar testified that Dritan Duka and Shain Duka were clueless about the plot. “[They] had nothing to do with this matter," he told the court.
‘The fact that the court granted a hearing in this case is unusual and suggests maybe the court is troubled by the outcome. The outcome is clearly unjust. So we’re hoping that this is a signal that the court would like to take another look at the case.’
civil liberties attorney
Regardless of such statements, the five men were convicted and sentenced.
The Fort Dix 5 and the Newburgh 4 are among the highest-profile cases, critics say, of prosecuting people for plots that are fabricated and controlled by law enforcement or informants acting on their behalf. They see it as a form of pre-emptive prosecution, which became popular after 9/11.
The FBI has defended its actions. In response to another FBI case involving undercover operations, FBI Director James Comey said the bureau’s use of such law-enforcement tactics was justified and fair. “Every undercover operation involves deception, which has long been a critical tool in fighting crime. The FBI’s use of such techniques is subject to close oversight, both internally and by the courts that review our work,” he said.
But that argument does not convince some campaigners. In these types of sting cases, the government “kind of choreographs the whole thing, and they know that if it involves a plot with attacks in the U.S., [the defendants] are looking at really harsh sentences,” said Kathy Manley of Project SALAM (Support and Legal Advocacy for Muslims) and the legal chairwoman of the National Coalition to Protect Civil Freedoms.