The View from Here (column) by Carl Strock
Schenectady Daily Gazette, published March 27, 2008
One strong argument in Muslim appeal
Carl Strock can be reached at 395-3085 or by e-mail at firstname.lastname@example.org.
I hied myself down to Manhattan the other day for the appellate hearing of Yassin Aref and Mohammed Hossain, the Albany Muslims who were convicted of supporting terrorism, and I can’t say it was a happy occasion.
There we were, 50-some people from the Capital Region, up on the ninth floor of the Daniel Patrick Moynihan Courthouse in lower Manhattan, in what they call the ceremonial courtroom, basically listening to the same arguments that we listened to a year and a half ago and that yielded such a dismal result back then.
The result back then, of course, was guilty. Guilty of laundering money, guilty of providing “material support” to terrorists, guilty of conspiracy, guilty of I don’t know what-all.
Sentence: 15 years.
In my view, the only real failing on the part of Aref and Hossain had been allowing themselves to be snookered by the FBI, which, following 9/11, was under great pressure to find terrorists. Or, if no terrorists were at hand, to invent them, which is what the Albany office did in this case.
It sent a Pakistani crook who was facing deportation to try to trick the two men into doing something that could be construed under broadly worded laws to be support for terrorism, in exchange for dropping criminal charges against him and allowing him to remain in this country. The crook’s assignment was not to be an informant, as he was officially called, but to be an agent provocateur. That is, not to report on what the two guys were doing, which was nothing, but to get them to do something.
Yassin Aref was a Kurdish refugee from Iraq serving as prayer leader of a storefront mosque on Central Avenue, married with three children.
Mohammed Hossain, an American citizen originally from Bangladesh, was the proprietor of a hole-in-the-wall pizza shop, also on Central Avenue, married with five children at the time. (Each later had another child.)
Neither one had a criminal record, and neither one was a radical. Nor did the government allege they were engaged in criminal activity, whether in support of terrorism or anything else.
Rather the government “put them to the test,” as the U.S. attorney, Glenn Suddaby, later explained. That is, the government tried to induce them to do something they could be arrested for, to see if they would go for it, even if they only imperfectly understood what was going on.
To my innocent way of thinking that’s not a proper function of government — to put us to the test. But that’s what the government did.
Its flimsy justification was that Aref’s name had been found in an address book in Iraq, in what the government claimed was a terrorist camp, but the details were classified and unexaminable. In any case, for someone’s name to be found in an address book in the country where he was born and grew up and had many friends and relatives seems hardly remarkable. It just shows how eager the government was to appear to be intercepting terrorists.
For Hossain, there was no justification at all. He got ensnared as bait for Aref.
Anyway, an appeal was filed, briefs were submitted, and now it was time for the lawyers to appear before a three-judge panel of the U.S. Court of Appeals, state their cases orally and answer any questions the judges might have.
The judges did have a few, especially Chief Judge Dennis Jacobs, which I found encouraging. At least he seemed to have read the briefs. I have learned not to try to read the minds of appellate judges based on the questions they ask, but Judge Jacobs’ questions seemed to me largely hostile or skeptical toward Aref and largely sympathetic toward Hossain, for what that might be worth.
It might just reflect the focused and forceful argument presented on Hossain’s behalf by his lawyer, Kevin Luibrand, who I thought absolutely nailed one central point — that Hossain did not fi t the minimum requirements of the law because he did not demonstrate any predisposition to do what the government trapped him into doing, that is, launder money.
Aref’s lawyers did not make that same argument, for rather obscure legal reasons.
For Luibrand, representing Hossain, it was compelling. He cited Supreme Court precedents to show that Hossain’s willingness to commit a crime had to be evident when the government first approached him. But Hossain, far from being receptive to the agent provocateur’s initial babble about jihad, counseled him to stay away from militants that he claimed to be dealing with and gave him a lecture on good citizenship.
“He was not predisposed as a matter of law,” Luibrand insisted, and I did not hear any good answer from the assistant U.S. attorney, William Pericak, who argued instead that Hossain’s predisposition was demonstrated by his “ready response” to the offer of money that was supposed to be coming from the sale of “ammunitions.”
It seemed to me a circular argument when I heard it the first time, and it seemed to me circular again. How do you know someone was predisposed to accept a criminal offer? Because he accepted it.
But worse, in this case the acceptance came months after his predisposition was supposed to have been established, and only after much cajoling and deception by the agent provocateur.
I cannot repeat or even summarize all the legal arguments and rebuttals that were offered, but the argument about legally required predisposition was, to me, the most forceful.
Alas, it was also offered at the original trial, where it obviously did not move the jury. Whether it will move these three judges, I can’t say. That it moved me doesn’t do anyone much good.
Aref and Hossain were not present for these proceedings, I should clarify, only their lawyers. Aref is confined in Terre Haute, Ind., Hossain in Fairton, N.J.
As a sidelight to the day’s events I did get to have a few words on the telephone with Hossain, who is not in a “managed communications unit” like Aref but in an ordinary medium security prison, where he is occasionally able to call his wife on her cellphone.
He called her after the hearing, when she was on a bus preparing to return to Albany. She passed the phone to one of the lawyers, and the lawyer in turn passed it to me, and we had a nice conversation in which he expressed profound gratitude for everything that people in the Capital Region have done to assist his wife and six children and also to me for my feeble support in this column, which was very touching. If I could do more, like pass him a hacksaw, I would certainly do it.
It was sad to hear his distant voice. I spent time with him during recesses in the trial, and visited with him in his pizza shop while he was out on bail, and I believe him to be a decent hardworking family man with no more propensity for terrorism than I have. There was little I could say to him except to wish him luck, of which he will surely need a great deal.
I think that for an appeals court to overturn a jury verdict in any case involving the buzz words “Muslim terrorists” is a very long shot, but we’ll wait and see.
As before, if you would like to have your say on this subject, whether your say is the same as mine or not, you are welcome to post a comment on my blog, at www.dailygazette.com.
Carl Strock can be reached at 395-3085 or by e-mail at email@example.com
Read Mr. Strock's blog, Strock Freestyle