Pursuing Justice While Protecting Classified Information
On June 11, 2003, shortly after the commencement of Operation Iraqi Freedom, a strike was ordered against a terrorist training camp in Al Rawah, Iraq, run by Ansar al Islam, a designated terrorist organization. Eighty enemy combatants were killed, and a partially declassified inventory showed that the camp held numerous weapons and ammunition, including mortars, rockets, rocket-propelled grenades, grenades, and mines, and that one body showed signs of preparation for martyr operations. Perhaps even more disturbing, among the “pocket litter” recovered from the camp was a notebook which contained the name Yassin Aref, and a telephone number with a 518 area code – Albany New, York! Although Aref was known to the Albany FBI as the imam of a local mosque, the discovery of his name and Albany telephone number in a terrorist training camp raised many questions. Was Aref just an acquaintance of a terrorist, or was he a terrorist sympathizer? Was he affiliated with the Islamic Movement in Kurdistan (IMK), the group from which the designated terrorist organization Ansar al Islam had splintered, or was he himself a member of Ansar al Islam? Further investigation showed additional worrisome links. Although Aref had changed his Albany telephone number, analysis of toll records for the number in the notebook showed that between 1999 and October 2001 fourteen calls had been made from it to a number in Syria that had been associated with terrorism (and which later was determined to belong to the IMK). Further, a document recovered in Syracuse, New York reflected that Aref was appointed in 1999 to represent the IMK in the U.S.
Although the Albany FBI had overt contact with Aref in 2002 (at which time Aref promised that if he noticed anyone suspicious among those who attended the Albany mosque, he would notify the FBI), the FBI and the U.S. Attorney’s Office for the Northern District of New York agreed that, in view of the discovery of the Al Rawah notebook, a covert approach to try to determine whether Aref’s public expressions of opposition to terrorists matched his privately held views was in order. The FBI did not have anyone who could approach Aref directly without arousing his suspicion, but it did have a cooperating witness (CW) who had a relationship with one of Aref’s acquaintances – a man named Mohammed Hossain. Under FBI instructions, the CW played the part of a “wealthy, radical guy,” and in November 2003, in a videotaped meeting, the CW showed Hossain a surface-to-air-missile, and told him is was “for destroying airplanes,” it was for “our mujahid brothers,” and that the CW gets $50,000 for it. Hossain replied, “Good money can be made from this, but it’s not legal.” In subsequent discussions Hossain pressed the CW for money, and under FBI guidance and direction, the CW proposed, and Hossain agreed to, a money laundering scheme in which the CW would give Hossain the cash from the sale of the missile. Hossain further agreed that he would keep a percentage and would launder the rest by returning a series of checks to the CW. Such “stings” have been used successfully in the past in numerous situations, such as in investigations of narcotics distribution and the dissemination of child pornography.
Hossain proposed that the transaction be conducted in accordance with Islamic law and witnessed by Aref. During the first of ten transactions, the CW gave Hossain $5,000 in cash, and while Aref was counting it, the CW displayed the trigger mechanism, explaining, “This is the part of the missile that I showed you.” In a subsequent meeting, the CW told Aref, “I help my brother Mujahideen with ammunition and stuff like that to fight the wars, Holy Wars. And one of the groups that, uh, I am working with is Jaish-e-Mohammed, JEM.” The CW explained that JEM was trying to free Kashmir, and stated, “That’s why, the missile, that we sent it to New York City to teach Mu, uh, President Musharraf, the lesson to not to fight with us.” Aref recognized JEM as a terrorist organization and warned, “Now if they know any person, he have link with those people... they take them to the jail and they say they support the what, the terrorism.” Aref counseled , “[If] you believe they are working for Allah, I believe it is wise for you to help if you can,” but warned him to be “very very careful, hundred percent” because “[i]f they find any proof, they are going to tell you, you support the terrorism, and that’s enough for them.” Aref emphasized, “[i]f they find any link between you and that group, you should to know, you are going to be in the trouble.”
When the CW warned in yet another conversation of a missile attack in New York, Aref (in the presence of a friend) reacted by accusing the CW of taping him, and searched the CW for a tape recorder. Then, on a later occasion, when the CW questioned Aref about that reaction, Aref responded, “[T]he person to, today he want to work. I believe he should to work very hiddenly, very secretly, without anybody know.” Aref illustrated with the story of the suicide bomber who does not even tell his own mother, instead saying, “Mom I’m going to my coach and I am going today to get my degree. He mean degree, something else, he mean he became martyr. Allah will give him the degree, but his mom, he don’t understand. He say she believe really he is going to his normal college and he bring the degree.” Despite his promise to the FBI to notify them if he noticed anyone suspicious, Aref never reported the CW’s involvement with the terrorist organization JEM or the planned attack in New York City to law enforcement.
Aref and Hossain were arrested in August 2004 for the attempted money laundering scheme, and search warrants were executed. Numerous items reflecting Aref’s affiliation with the IMK were recovered, including photographs of Aref in the company of senior IMK members taken in Syria in 1999, tape recordings of speeches Aref made in 1994 which related to the IMK, and Aref’s 1999 diary, which reflected that Aref worked at the IMK Center in Damascus and made trips to Kurdistan on IMK business. Aref’s 1999 diary also reflected several direct contacts with Mullah Krekar, the charismatic IMK leader who later founded the designated terrorist organization Ansar al Islam. In another diary entry, Aref reported a conversation with “mujahid” who suggested they “[s]trive to move the war to America and Israel, make the explosions there. Attacking western targets so we can get the people’s attention towards us.” At trial, when Aref testified that he didn’t understand the word “missile,” and had not heard it, he was confronted with notes recovered during the execution of the search warrant, which he said he wrote when someone said a word he did not understand. One such note read, “rocet = missile” [sic]. Aref also denied ever hearing the CW say the word “missile” or warning of a “missile” attack, as Aref’s friend had testified at trial, but Aref acknowledged he understood the CW was warning of a “bomb” attack.
In September 2006, following a four-week trial, Aref and Hossain were convicted of conspiring to launder money and to provide material support for terrorist acts and to terrorist organizations, as well as substantive counts of attempting to engage in money laundering and attempting to provide material support. Aref was also convicted of falsely stating, in response to FBI questioning, that he did not know Mullah Krekar. Each man was sentenced to 180 months in prison.
The pre-trial proceedings were particularly challenging because the defendants attempted to obtain discovery of classified information, raising issues under the Classified Information Procedures Act (CIPA). Among other matters, the defendants sought discovery of documents and information in the government’s possession relating to Aref’s association with Ansar al Islam, and to an allegation, reported in the New York Times, that Aref had been subjected to warrantless National Security Agency wiretapping. The prosecution team, which included Assistant U.S. Attorneys William Pericak and Elizabeth Coombe and FBI Special Agent Timothy Coll, worked closely with the Department of Justice’s National Security Division’s Counterterrorism Section to respond to these claims and discovery requests seeking classified information. The district court held a series of in camera, ex parte proceedings and issued discovery rulings requiring the government to provide limited discovery. The government obtained de-classification of certain documents or portions thereof, which it provided to the defense, and it also filed a classified letter which was made available to defense counsel only (both of whom had obtained security clearances for this purpose). On appeal, the Second Circuit upheld the convictions and sentences, upheld the discovery rulings, and commended the district court for its thorough scrutiny of the classified information. See United States v. Aref, 533 F.3d 72, 80-81 (2d Cir. 2008).
National security considerations require us to be vigilant in protecting classified information from disclosure. But in a criminal case, the government’s privilege to withhold classified information must give way when the information is material to the defense. It is both challenging and essential that we, as federal prosecutors, carefully balance these competing concerns to ensure that classified information is protected in a way that does not impair the defendant’s right to a fair trial. As the Second Circuit confirmed, that balance was properly struck in the prosecution of Aref and Hossain, and we remain committed to achieving that balance in all national security cases.