Discussion Forum for Prosecuting Terrorists

Zazi and conspiracy

Consistent with our discussion in class, Najibullah Zazi has been indicted on conspiracy to commit a terrorism offense.

 

FOR IMMEDIATE RELEASE
Thursday, September 24, 2009
WWW.USDOJ.GOV

AG
(202) 514-2007
TDD (202) 514-1888

Najibullah Zazi Indicted for Conspiracy to Use Explosives Against Persons or Property in the United States

The Justice Department today announced that Najibullah Zazi, 24, a resident of Aurora, Colo., and legal permanent resident of the United States from Afghanistan, has been indicted in the Eastern District of New York on a charge of conspiracy to use weapons of mass destruction (explosive bombs) against persons or property in the United States.

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Yesterday, a federal grand jury in the Eastern District of New York returned a one-count indictment alleging that between Aug. 1, 2008 and Sept. 21, 2009, Zazi knowingly and intentionally conspired with others to use one or more weapons of mass destruction, specifically explosive bombs and other similar explosive devices, against persons or property within the United States. The indictment also alleges that, in furtherance of this offense, Zazi and others traveled in interstate and foreign commerce, used email and the Internet, and that this offense and the results of the offense would have affected interstate and foreign commerce.

"The indictment alleges that Najibullah Zazi conspired with others to use explosive devices against persons or property in the United States," said Attorney General Eric Holder.  "We are investigating a wide range of leads related to this alleged conspiracy, and we will continue to work around the clock to ensure that anyone involved is brought to justice. We believe any imminent threat arising from this case has been disrupted, but as always, we remind the American public to be vigilant and to report any suspicious activity to law enforcement."

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Najibullah Zazi Indictment

Najibullah Zazi - Government's detention memo

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09-1017

Prevention Paradigm

This summary from U.S. News and World Report this morning exemplifies the "prosecution as a tool for disruption" approach and the "spitting onthe sidewalk" method.  Although substantive "terrorism" offenses may well be added later, for now a "varsity level" attack near execution is thwarted by use of routine Section 1001 Lying to Investigators charges.

The FBI arrests on Saturday of Najibullah Zazi, his father Mohammed Zazi, and New York Imam Ahmad Afzali in the ongoing investigation into a possible liquid bomb terror plot -- and subsequent release on Sunday of documents detailing the allegations against the three -- continue to garner increasing media coverage, including lead reports on Sunday's network broadcasts and stories by major wire services and newspapers this morning. Although many reports note prominently that none of the three actually have been charged with plotting terrorism -- only lying to the FBI during the course of the investigation -- they detail Najibullah Zazi's alleged bomb-making notes and Al Qaeda training, and emphasize that the FBI continues to investigate other suspects in the alleged plot.
  ABC World News reported, "Investigators are calling it a quote, 'varsity level terror plot inside of this country,' one that was nearing the attack stage," and "officials are saying" Saturday's arrests are "just the beginning." NBC Nightly News reported that "federal agents are trying to unravel the details of a plot they believe targeted New York City for another terror attack." Officials "say more charges may be coming and that other people are involved, but they say that no matter what happens in the criminal cases, they believe this has been successful in a different way in disrupting a potential attack." (emphasis added)

 

 

UPDATE:  FBI press release and links to charging documents:

U.S. Department of Justice For Immediate Release September 20, 2009

ASG (202) 514-2007 TDD (202) 514-1888 www.usdoj.gov

Three Arrested in Ongoing Terror Investigation

WASHINGTON – The Justice Department today announced that two individuals in Colorado and one individual in New York have been arrested on charges of making false statements to federal agents in an ongoing terror investigation.

FBI agents in Colorado arrested Najibullah Zazi, 24, a resident of Aurora, Colo., and legal permanent resident from Afghanistan, and his father Mohammed Wali Zazi, 53, a resident of Aurora and a naturalized U.S. citizen from Afghanistan. In addition, FBI agents in New York arrested Ahmad Wais Afzali, 37, a resident of Flushing, N.Y., and a legal permanent resident from Afghanistan.

Each of the defendants has been charged by criminal complaint with knowingly and willfully making false statements to the FBI in a matter involving international and domestic terrorism. Najibullah Zazi and Mohammed Zazi are scheduled to make their initial appearances on Monday in federal court in the District of Colorado. Ahmad Afzali is scheduled to make his initial appearance on Monday in federal court in the Eastern District of New York. If convicted, each faces a potential eight years imprisonment.

“The arrests carried out tonight are part of an ongoing and fast-paced investigation. It is important to note that we have no specific information regarding the timing, location or target of any planned attack. As always, however, the American people should remain vigilant and report any suspicious activities to their local authorities,” said David Kris, Assistant Attorney General for National Security. “I would like to thank the many agents, analysts and attorneys who are working extremely hard on this important matter.”

According to affidavits filed in support of the three criminal complaints, the FBI is investigating several individuals in the United States, Pakistan and elsewhere, relating to a plot to detonate improvised explosive devices in the United States.

Records from U.S. Customs and Border Protection (CBP) reflect that, on Aug. 28, 2008, Najibullah Zazi flew to Peshawar, Pakistan from Newark International Airport via Geneva, Switzerland and Doha, Qatar. CBP records further reflect that Najibullah Zazi traveled from Peshawar to John F. Kennedy International Airport on or about Jan. 15, 2009.

According to the affidavits, on or about Sept. 9, 2009, FBI agents observed Najibullah Zazi depart his residence in Colorado in a rented car. He drove to New York City, arriving the following day, and spent the night at a residence in Flushing, Queens (“the Queens Residence.”)

On Sept. 10, 2009, New York City Police Department (NYPD) detectives met with defendant Afzali, whom the NYPD had utilized as a source in the past. According to the affidavits, the detectives questioned Afzali about Najibullah Zazi and others and showed him photographs of Najibullah Zazi and others. Afzali allegedly told the detectives he recognized Najibullah Zazi and several of the men in the photographs.

According to affidavits, on Sept. 11, 2009, defendant Mohammed Zazi placed a call to Afzali which lasted approximately 20 minutes. That same day, the FBI lawfully intercepted a phone conversation between Mohammed Zazi and his son, Najibullah Zazi. An affidavit alleges that, during the conversation, Mohammed Zazi told his son that he had spoken to Afzali who had informed him about being visited by law enforcement and shown photographs. Mohammed Zazi told his son that Afzali would call him and he advised his son to speak with Afzali "before anything else,” according to affidavits.

In the midst of this phone call, Najibullah Zazi allegedly received a call from Afzali, who discussed his meeting with law enforcement the day before. According to a draft summary of the transcription, Afzali allegedly stated: “I was exposed to something yesterday from law enforcement. And they came to ask me about your characters.” Afzali also allegedly asked Najibullah Zazi about his last trip to Pakistan and added, “Listen, our phone call is being monitored.”

According to the affidavits, in another legally intercepted phone conversation on Sept. 11, 2009, Najibullah Zazi told Afzali that his car had been stolen and that he feared he was being “watched.” Afzali allegedly asked if there was any “evidence in his car,” and Najibullah Zazi said no.

That same day, FBI agents conducted a legally authorized search of Najibullah Zazi’s rental car, which was parked near the Queens residence. During the search, agents found a laptop computer containing a jpeg image of nine-pages of handwritten notes. According to the affidavits, the notes contain formulations and instructions regarding the manufacture and handling of initiating explosives, main explosives charges, explosives detonators and components of a fuzing system. On Sept. 12, 2009, Najibullah Zazi flew from La Guardia Airport in New York to Denver.

On Sept. 16, 2009, FBI agents interviewed Najibullah Zazi in Denver. According to an affidavit, when he was asked about and shown handwritten notes regarding explosives found on his laptop computer, Najibullah Zazi falsely asserted that he had never seen the document before and stated he had not written the notes.

On Sept. 17 and 18, 2009, Najibullah Zazi was further interviewed by the FBI in Denver. According to affidavits, Najibullah Zazi admitted in the interviews that during his 2008 trip to Pakistan, he attended courses and received instruction on weapons and explosives at an al-Qaeda training facility in the Federally Administered Tribal Areas (FATA) of Pakistan.

The affidavits allege that, on Sept. 17, 2009, Afzali was interviewed by authorities in New York where he falsely asserted in a written statement that he did not tell Najibullah Zazi or Mohammed Zazi that authorities had approached him seeking information about Najibullah Zazi. According to the affidavits, Afzali also falsely asserted that he never told Najibullah Zazi that they were being monitored on the phone and that he never asked Najibullah Zazi about evidence in his car.

The affidavits further allege that, on Sept. 16, 2009, Mohammed Zazi was interviewed by the FBI in Denver where he was asked whether anyone had called him and told him about his son’s activities and any trouble regarding his son. According to the affidavits, Mohammed Zazi falsely stated that he had never called anyone in New York other than his son and he had never received a call from anyone in New York. He allegedly revised his statement to say he had received one call from an individual who informed him that his son had missed his flight. According to the affidavits, Mohammed Zazi was later asked if he knew anyone by the name of Afzali and he said he did not.

These prosecutions are being handled by the U.S. Attorney’s Offices for the Eastern District of New York and the District of Colorado, with assistance from the Counterterrorism Section of the Justice Department’s National Security Division.

The investigation is being conducted by the New York and Denver FBI Joint Terrorism Task Forces, which combined have investigators from more than fifty federal, state and local law enforcement agencies .

The public is reminded that criminal complaints contain mere allegations and a defendant is presumed innocent until proven guilty.

Criminal complaint and arrest warrant, Najibullah Zazi (pdf)
Criminal complaint and arrest warrant, Mohammed Wali Zazi (pdf)

Why we don't use the report "Trying Terrorists in Article III Courts."

Just two months ago, three groups including the distinguished ABA Standing Committee on Law and National Security published Trying Terrorists in Article III Courts: Challenges and Lessons Learned.  At first sight, that may seem like a perfect text for our course.  Unfortunately, it is so riddled with errors that I can not recommend it for use by persons not already familiar with the subject area.

The report is meant to be a record of discussions at a workshop.  The discussants are distinguished, knowledgeable and in some cases acquaintances or friends of mine.  According to the "Reporters' Note," "the reporters added background and introductory information"(p.6).  Perhaps that is the root of the problem.  In any event, the report is not to be trusted.

For example, Section V.D. on Chain of custody states:

The Federal Rules also prescribe specific requirements to ensure the authenticity of evidence for use in prosecutions, known as “chain of custody” requirements. In terrorism cases, it often proves difficult, if not impossible, to observe the mandated level of protection of evidence. ... Moreover, information that the government seeks to use against accused terrorists may have been obtained by the intelligence community without any sense that the information might later be used in a criminal prosecution. This evidence, therefore, has not been subjected to the chain of custody requirements that are imposed on evidence collected for use in court. Discussants were unable to reach a conclusion on whether such information could lawfully be used in terrorism trials. One discussant noted that in at least one international criminal tribunal, the court removed all chain of custody requirements. It was suggested, without consensus, that Article III courts should similarly permit the parties to a terrorism trial to admit all plausible and relevant evidence without regard for chain of custody.

The problem here is just simple ignorance of the law.  Anyone who has ever litigated in federal court (or prepared for the Multi-State Bar Exam) should be able to tell you that a break in the chain of custody of evidence goes to its weightnot its admissibility.  There is no reason to change anything to remove chain of custody requirements in Article III courts, because proof of chain of custody is not required in Article III courts.  Authentication is required, but that is hardly the same thing as proving chain of custody.  In their famous treatise, Mueller and Kirkpatrick write, "Although serious gaps may raise enough doubt to require exclusion, a break in the chain is not necessarily fatal to admissibility..." MUELLER & KIRKPATRICK, EVIDENCE § 9.5, at 1004 (3d ed. 2003).  Put even more clearly and authoritatively, the United States Supreme Court noted just a month before this report was released: “gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.”  Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 2532 (2009).  [The term "chain of custody" never appears in the Federal Rules of Evidence.]

Although I do not recommend that you use this report for our class, there are two white papers that I do recommend -- In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts and In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, 2009 Update and Recent Developments -- available as free downloads. The first is here. The second is here.  The primary authors of these papers were Richard B. Zabel and James J. Benjamin, Jr., both former Assistant United States Attorneys.  Judge Brinkema highly recommended the first of these two papers (the only one in existence at the time) to us when she spoke to our class last year.   I do not necessarily endorse their conclusions (I'd prefer you to make up your own mind), but these two papers are accurate, authoritative, and highly useful in our course.  A brief video about the papers is available at this link.