Arraignment and Detention Hearing: Prosecution’s Argument

November 12, 2009



Your Honor, the government has moved under Section 3142(f)(1)(A) and (B) as well as (f)(2)(A) and (B), and as Your Honor knows that this significantly changes the legal analysis because of the institution of the presumption in this case that the defendant is a risk of flight and that he is a danger.  But even holding aside the discussion of meeting burden of proof, presumably using, relying on the presumption, the evidence in this case is clear that the defendant does pose both a risk of flight and a danger to the community.  I would also add danger or risk of obstructing justice or intimidating witnesses or influencing witnesses under (f)(2)(B).

Before defendant was brought the Court on these material support to terrorist charges, it was still a very close question as to whether the defendant indeed was a risk of flight.  And that was the sole side of the analysis.  And the evidence was abundant that the defendant didn’t want to stay in this country, that he wanted to leave for a variety of reasons, some borne by his interpretation of what his of where it would be more amenable so he could practice his faith.  But the information that was not presented to the court at that time was the abundant evidence of the danger, the risk, the motivations, the sincere motivations for why the defendant chose and wanted to flee as well as the other evidence of his danger because he of, he had actually committed terrorism related offenses here in the United States and he was planning to do the same overseas.  And so through that lens and through this submission the Court now should, even with, absent a presumption, should easily be able to find that there are no conditions that could ensure that the defendant will not continue to reoffend, continue to engage in the conspiracy and the attempt to provide material support as he has had, as he had done for so long for the last almost a decade.

I should add, Your Honor, he’s done that often from the confines of his own home, often with the assistance, with the knowledge of people in this very same community which he now claims is the community that will ensure that he will not continue to offend.  Your Honor sees cases of all sorts in this court.  Often you see drug dealers or other individuals charged with offenses which also have a presumption and some not for which the danger is not necessarily a risk of imminent violence but rather other societal harms which the Bail Reform Statute was designed to protect against.  In a drug dealer circumstance, it’s so that they don’t spread their poison, so that they don’t continue to fuel this machine which ultimately yields violence or ultimately yields destruction of people’s lives.  This defendant is in the same boat, Your Honor.  The poison that this person was pedaling in this community was the harm not only to the risk of all Americans because of his advocacy for terror and jihad spreading, enabling others both in the United States and around the world to be motivated and justified to engage in violence to reach their political ends, but rather he’s implicating his own community.  The very Muslim community that he claims to be standing up for is the community which he is impacting and has been for the last, you know, for the last almost of a decade.  And it’s the harm which should also be considered in addition to the harm, very real and palpable violence which have been made known to the Court.  One of those examples, Your Honor, and I won’t belabor it, is what should have been much publicized but it was in the original affidavit and it’s in the Nambu affidavit, of the consideration of actually engaging in acts of violence to discriminately kill people here.  Those plans were dismissed because of the lack of feasibility or viability of conducting a domestic attack simply because all they could attain were handguns, Your Honor.

Unfortunately, the events of this last week have crystallized the fallacy of this lack of feasibility.  It’s crystallized the threat that such a one off plan might actually be brought to fruition.  And this is a person who for the last 10 years has single-mindedly thought of how and why eh can support his faith or his perception of his faith through defending it through violent means if necessary.

This is a person who we’ve only provided a snapshot, a small window over various periods of time to the Court to provide some insight into the G factors under 3142 to the detention statute in which the Court is allowed to assess the personal characteristics of this defendant, the motives for his behavior, what kinds of, you know, the amount of energy and time that he has spent thinking and proselytized and speading the word about his brand of what he calls religion.  And for him that means violent jihad.  For him, that means watching videos of mutilation of people.  For him, it means watching images and storing and saving images of beheaded people.  For him, it means trying to explain to other younger people in the community and beyond this Commonwealth, explaining to them why these things are appropriate and necessary.  For him, when posed with the prospect that there might be a just result in the courts for, to resolve a conflict or an injustice done upon Muslims, his answer is who cares.  Texas barbecue is the way to go, referring to the burning and mutilation of American soldiers.

That is the character of the person at the table that the Court should assess when considering whether he’s a real danger or whether because of his behavior over the last year when he was charged with a 1001 offense why he’s been able to comply with the conditions of release.  Even in that context the idea that he’s complied with-

The Court:  Do you think he’s complied with the conditions of release over the past year?

Mr. Chakravarty:  He has not, Your Honor.  He has committed a federal offense including continuation of his—

The Court:  During the time period of release.

Mr. Chakravarty:  —during the time period of release.  His duty hasn’t changed, Your Honor.  I went on his website yesterday.  His, grant it he’s not had access to it since he’s been in custody, but he has document after document purporting to justify through so-called religious doctrine, often not even by scholars of Islam, which justify standing up against the tyrant, disrespecting the laws of the Kirthar or the infidel.  This is a person who given his stakes now that he has to face versus what he faced before would be at no qualms either to flee or to actually implement or take his terrorist planning to the next stage.  And this is a real concern which there are no conditions which could get into his mind and short circuit the training and the inculcation which he has done to himself and to other over the last 10 years.  That’s so deeply imbedded his hatred for the United States government and what it stands for and activities overseas, it’s so deeply imbedded that there’s no way to ensure that he won’t take do anything to perpetuate that.  And whether that is an act of violence or whether has been his pattern and practice whether it is to encourage or to support others hwo are in fact engaging in these acts of violence.  He now faces potential the life in prison.  He now faces the guideline ranges with terrorism enhancement in the multiple of decades.  His incentive to remain here, which has solely been secure I would submit, primarily been secure I would submit by the good auspices of his family who, like any good family, would support their kin.  They’ve put up their home; they’ve put up their assets.  Those would be a small price to pay for the freedom of their son, Your Honor, a son who, in this case, is facing international opprobrium certainly in this community and the specter of a lengthy period of incarceration.  So the motive analysis in terms of the value of that surety should be viewed in perspective.

And finally, in terms of categories of factors of the good Court to consider, in this case the evidence is, the government would submit at this stage voluminous more than in most cases.  You know, the proffer was submitted to provide us insight into the defendant’s state of mind and his intent and the kind of pervasiveness of his thought.  But it’s certainly not the four corners of the evidence and the affidavit I submitted are details that there are other types of evidence, other characters of evidence including cooperating witnesses, including recorded statements of the defendant, including the defendant’s own writings and including records and other kind of objective records, all which corroborate each other.  But amongst those are cooperating witnesses, people who from the Muslim community and beyond who have answered truthfully when the government has asked them questions.  Something which is even in Islam despite what the defendant’s interpretation might be is a legitimate activity.  The defendant’s perception of that as detailed in the proffer is that the simple act of cooperating with the government is telling he government the truth when asked is tantamount to apostasy.  And there is only one punishment in defendant’s eyes when somebody becomes apostic, when somebody rejects the faith, acts against it, and that is a, that is to exterminate that person.  In this case there are several cooperating witnesses.  There is a real risk, and defendant knows who they are, but there’s a real risk that no matter what happens if he’s ever released that there is a jeopardy both by himself as well as his associates, some of whom are at large.  I point out that in the proffer the defendant had communications with over a dozen individuals.  Those individuals had conversations with the defendant about the propriety of violent jihad, about the supportive of the horrific acts which defendant was reveling in.  And those people, some of them may be in the courtroom today, those people are still around and still can perpetuate what the defendant has inside and encouraged them to do all this time.

I won’t belabor the issues much more, but, I to address one of the concerns which I anticipate Mr. carney will raise, which is that the controls at home might be sufficient to ensure the defendant won’t continue to perpetuate this ongoing conspiracy which from he has never withdrawn.  In fact his behavior before the Court suggests that his mindset on the last occaion suggests that his mindset is equally as resolved today as it was back then.  But it’s the same family, this admirable, upstanding family.  There’s no reason to disbelieve that, who, and in this community where he has radicalized himself, he radicalized others and continued to engage, continued to manage his website, continued to communicate with individuals after the initiation of criminal proceedings in this case.  There is a co-conspirator who remains overseas who’s been charged.  The potential that this defendant can be controlled by a family who has not been able to control his behavior at all regardless of the fact that they may very well disapprove of everything that the defendant has perverted his faith into suggests that merely pulling the plug out of a wall for internet access is not going to prevent him from communicating or from spreading the same desire that he has had to stand up against the disbeliever and the infidels.

Then I just want to outline, before I turn it over some of the character of what this person’s mindset has been.  And I know Your Honor has read the detailed sort of chats, but he’s done things such as one the internet or other communication to actually provide material support.  We have the 39 Ways of Preserving and Participate in Jihad.  This is a textbook, and when you look through the—and you’ll see that based on the allegations thus far proffered, the defendant has either attempted to have accomplished several of these 39 ways.  This is a source of pride for this defendant.  The, you know, being referred to as the media wing of Al-Qaida, spreading the propaganda of this global terrorist organization is a serious and meaningful contribution to the mission of al-Qaida.  Holding aside the fact that his perception of Osama Bin Laden is like his real father, query how he would respect the wishes of his true father who is in the courtroom.  The fact that he defendant didn’t simply regurgitate existing liturgy or existing scholarly work about the benefits and the motivations for violent jihad, but actually did close production work, created videos, did translations, so that the word could be spread across cultures, across countries and especially in this community where he would be released back into.  This is somebody, who based on his communications, who relished the importance of his work.  He felt it was a called action.  He hoped it would cause people to take action.  He hoped it made an impact.  In his ideological motivation for htesea ctions so deeply seeded and so deeply entrenched that in addition to his adulation for individuals l ike Osama Bin Laden, Al-Qaida in general, Abu Musab al-Zarqawi, Dr. Ayman Al-Zawahiri.  This is somebody who would joke with his friends about watching videos, not watching a, you know, American Idol, but rather watching beheading, beheading videos and watching other horrific acts of violence.  This is somebody who enjoys that, Your Honor, and did it over a long period of time.  There’s nothing, I stress again, there’s nothing to suggest that that has changed.  This is someone who had stored multiple and dozens of images of the attacks of 9/11, somebody who actively sought out and became a student in the lives of the 9/11 hijackers.  So when Mr. Carney stands up and say there’s nothing, there’s no shred of evidence to suggest that this person before you is a risk of personally engaging in violence, this is somebody who has studied the lives of people across the world, across the world, who come form all different walks of life, all different socio-economic routes.  And he has studied how and why they finally engaged in acts of terrorism.  And he has looked to those people with admiration because they did what he wanted to do and didn’t have the courage to do, and now he’s a person who had nothing to lose, Your Honor.  Now he is a person who is looking at potentially the rest of his life behind bars.  The motivation for this person now finally to go out in a blaze of glory or to do what he was heretofore unable to have the courage to do has gone up tremendously.

And then finally, the last category of risk here is his explicit solicitation of others to do what it is that he was unable to do, his referral of others to individuals like Anwar al-Awlaki or others who might perpetuate and who might propagate to the ideology to motivate somebody else to go engage in jihad which he finds as dictated in his 39 Ways to Preserve and Participate in Jihad.  He finds as the next approximation of personally participating in jihad is to encourage somebody else or to support somebody else in doing that.  This is a person whose risk is beyond simply the risk of the community at large.  It’s particularly invasive and infective to his own Muslim community, especially the peaceful and law-abiding community here in the Commonwealth.  But more importantly his network, this network of support, which he is praising to the Court, is a network some of whom are supportive of the defendant’s illegal objectives.  We don’t know how many, and we don’t know where they are.  And more importantly it’s the same community which has allowed him, given him the ability, to engage in this longstanding conspiracy with himself and others both charged and uncharged over the last ten years.  So there really are no conditions.

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