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Did the FBI Use Occupy Cleveland Case to Equate Activism with Terrorism?

Another case exposes the FBI's decade-long entrapment trend.
 
 
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Photo Credit: SHUTTERSTOCK.COM

 

Four members of Occupy Cleveland have been sentenced over the past two weeks after pleading guilty to terrorism-related charges for their involvement in an FBI-concocted plan to bomb the city’s Brecksville-Northfield High Level Bridge on April 30 in advance of planned May Day demonstrations across the country.

At the request of federal prosecutors, U.S. District Judge David Dowd applied terrorism enhancements against the defendants, thereby increasing their prison terms. On November 20, Douglas Wright, 26, was sentenced to 11 and a half years in prison. Brandon Baxter, 20, was sentenced to nearly 10 years, and Connor Stevens, also 20, was sentenced to more than eight years. As part of their sentences, the three will be on supervised release for the rest of their lives. Then, on Friday, Anthony Hayne, 35, who originally took a cooperating plea agreement in July, was sentenced to six years. A fifth defendant, Joshua Stafford, 23, is being assessed for his ability to stand trial.

According to the federal government, the FBI successfully foiled a terrorist plot to blow up a Cleveland bridge, and by apprehending and prosecuting the suspects, the Justice Department has supposedly made America safer.

Or has it? Like the hundreds of other terrorism cases prosecuted since Sept. 11, 2001, there’s far more to this one than meets the eye.

Notably, the Cleveland case centered around a paid FBI informant who, like many informants, had a long criminal history before working with the federal government. The FBI used Shaquille Azir, 39, to insert itself within the Occupy Wall Street movement. For months, Azir supplied the three defendants sentenced this week -- all of whom were previously unemployed and homeless -- with jobs, places to live, and alcohol and other drugs. Azir also did other things to create dependency like promising to help one of the defendants save his father’s house from foreclosure. In addition to making the defendants reliant on him for material needs, Azir pushed them to develop a plan and was disparaging when they repeatedly refused to take the bait. This pattern of creating dependency, and goading and bullying the targets into participating in the “crime” is a common entrapment tactic used by infiltrators and an integral part of the kind of manipulation that has gone on for more than a decade in these types of “terrorism”-related cases.

But how is this legal? Can the government get away with such blatant entrapment techniques? It can, partly because the difficult legal standard needed to show entrapment may embolden the FBI and its informants to push the envelope, and partly because of a relaxation of FBI investigational standards and judicial oversight. What’s clear is that informants are allowed to use a wide range of coercive tactics. Still, it begs the question of whether the crimes levied against the Cleveland defendants, and so many others like them, would have ever occurred if not for federal instigation and coercion.

According to research conducted in 2011 by Mother Jones, nearly half of the 500 people the government has prosecuted on terrorism charges since 9/11 were taken to court based on the evidence and testimony of informants. Muslims are predominantly the targets of so-called terrorism investigations and prosecutions, but political activists like the ones sentenced last week are also targets. However, regardless of who is targeted, law enforcement tactics in these cases are as consistent as they are egregious.

One case study can be found in the investigation and prosecution of two Muslim immigrants living in Albany, New York. Neither Mohammed Hossain, who was a Bangladeshi pizzeria owner and father of six, nor Yassin Aref, who was the imam at a local mosque, had any prior criminal record. Both Hossain and Aref were convicted in 2006 of money laundering, providing material support to a foreign terrorist organization and conspiracy. As you dig deeper, however, the case dubbed the Albany “missile plot” has the telltale signature tactics of entrapment.

Shahed Hussain, a government informant who had fled murder charges in Pakistan and was facing jail time in the U.S., developed an elaborate plan with the FBI to entrap Hossain and Aref. The informant befriended Hossain by posing as a wealthy Pakistani businessman, gaining his trust and eventually offering him a loan of $50,000 for his struggling pizza business. Aref was called in by Hossain only to witness the loan transaction. In order to pin charges on the two men, the FBI concocted a story that tied Hossain’s loan to proceeds from the phony sale of a shoulder-launched missile.

In reality, the FBI played on Hossain’s economic needs by dangling a $50,000 carrot in front of him, while mentioning on a couple of occasions that he was part of a Pakistani group considered by the U.S. government to be a foreign terrorist organization. Only on one occasion did Hussain show the pizzeria owner part of a missile, later making obscure references to a fake plot to assassinate a Pakistani diplomat in New York City. It’s unclear from recordings how much Hossain and Aref understood the made-up FBI story, but the weak pretext was enough to convict the two on some of the charges. In 2007, both Hossain and Aref were sentenced to 15 years in prison, despite admissions by the FBI that their crimes were “not real” and the public had never been in jeopardy. There were no terrorists and no one was killed or even injured.

Shahed Hussain’s career as an FBI informant didn’t end there, either. In 2008, he began spying on the members of a mosque in nearby Newburgh, New York. Over many months, Hussain befriended James Cromitie, a Walmart worker who had converted to Islam in prison. Still posing as a wealthy Pakistani businessman, Hussain treated Cromitie to free meals, groceries and other gifts, eventually promising him $250,000 if he and others carried out an FBI-designed plot to attack a synagogue and Jewish community center in the Bronx and attack military planes at the Stewart International Airport near Newburgh. Once again, the government devised the plan and supplied the (fake) bomb materials, brashly announcing that the operation and the 2009 arrest of the Newburgh 4 was “fully controlled at all times.” Indeed, Hussain was driving the getaway car.

The Newburgh 4 case reveals another common thread woven through many FBI terrorism entrapment cases, including the case of the Cleveland activists sentenced last week: targeting people who are on the margins, vulnerable, out of work, or disenfranchised. While the Newburgh 4 were largely depicted in the mainstream media as “homegrown terrorists,” they appeared to be targeted simply for their faith in Islam and because they happened to live in one of the most economically devastated areas of the country. When Hussain gave Cromitie a camera to photograph potential bomb targets, he immediately sold it for $50. Cromitie’s co-defendants included one person diagnosed with schizophrenia and another whom Hussain promised he would help fund his brother’s liver transplant.

According to the Village Voice, Hussain not only made up the “terror” plot, he also:

“…identified the targets, and supplied the transportation and equipment, including the fake bombs, a non-functioning Stinger missile, a safe house, two storage facilities, rental cars, cameras, and cell phones. He suggested the code words, trained the four men on the weapons, assembled the fake bombs, and paid for everything, including meals, rent, groceries, and personal expenses.”

Although a jury found the Newburgh 4 guilty in 2010 of attempting to use weapons of mass destruction, U.S. District Court Judge Colleen McMahon, who had referred to the proceedings as the “un-terrorism case,” at the sentencing hearing declared:

“I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it and brought it to fruition.”
 

Although all four were sentenced to 25 years based on mandatory minimums, McMahon said while denying their motions for a new trial, “Nothing any of these men did was the product of any independent motivation on their parts.”

In a similar vein, Judge Dowd called the government’s sentencing recommendations of 19 to 30 years for defendants in the Cleveland case, “grotesque.” Commenting in open court, the judge recalled how as an assistant prosecutor he helped convict someone for a double murder who served 18 years, less time than was being sought by federal prosecutors. “It doesn’t make any sense whatsoever,” said Dowd.

How did we get here? What motivation would the federal government, and the FBI in particular, have for creating terrorist plots so it can then foil them? And why does it seek the harshest penalties for victimless, manufactured crimes?

It’s impossible to say exactly how much, but the government has easily spent billions of dollars on counter-terrorism efforts inside the U.S. since 9/11. So, from an economic standpoint, the entrapment effort helps justify and sustain a multibillion-dollar industry. At the same time, the government gets to take credit for creating a “safer” environment, regardless of whether that claim has any truth to it.

According to the Justice Department’s own statistics, since 9/11 only one person has committed an act of terrorism on U.S. soil -- an Egyptian immigrant opened fire at Los Angeles International Airport in 2002. Yet, the government claims to have prevented hundreds of terror plots as a result of its investigations of so-called “potential threats.” Either the government is exceptionally good at catching terrorists before they act, or the threat of terrorism is significantly overstated. The latter indicates a “protection racket” perpetrated by the government to manufacture both fear of terrorists and the perception of safety, based on a counter-terrorism approach that is assumed to be effective. With great fanfare, federal agents assure the public in staged press conferences that they are arresting violent criminals, but that nobody was ever in any real danger because the FBI (or other law enforcement agency) was in complete control.

Another motivation for the government amassing and maintaining vast resources allegedly used for counter-terrorism is the convenience with which it can also be used to undermine social change movements. By continuing to blur the line between activism and terrorism, notably with the PATRIOT Act in 2001 and more recently with laws like the Animal Enterprise Terrorism Act (AETA) passed in 2006, government has deliberately swept political dissidents into its dragnet of manufactured terrorism cases.

One important factor contributing to the success of this entrapment trend is the repeated relaxation of FBI guidelines on surveillance and infiltration since 9/11. In 2008, Attorney General Michael Mukasey established a new standard for FBI investigations, which sidestepped the need for any reasonable suspicion of wrongdoing and any supervisory approval or oversight. With the steady increase in surveillance, including unwarranted wiretaps, and the rise in “fusion centers,” which are used to share information among local, state and federal law enforcement, the FBI is more equipped than ever to spy on us for as long as it wants to, and without any evidence or suspicion of criminal activity.

Informants, in particular, have been given wide berth and a more active role in terrorism-related investigations. In many of the cases in which they are involved informants not only come up with the plots, but also encourage and coerce targeted individuals to carry them out. All too often, the government supplies the cash, the weapons -- whether real or fake -- and the logistical support necessary to implement the fabricated plan. Indeed, many of the people targeted would never have been involved if not for the heavy-handed manipulation of FBI informants.

In 2006, environmental activist Eric McDavid was arrested in Auburn, California, with two others and charged with federal conspiracy to damage and destroy property by fire and an explosive. Here too, an FBI informant was at the center of the case. “Anna,” who was given $65,000 as compensation and to pay for gas, food, accommodations and other needs, made the three dependant on her. Anna also used the prospect of romance to seduce McDavid and pushed the group to develop a plan for sabotage. In the end, despite plenty of pressure from Anna, no plan was agreed to and no explosives were ever used.

Frightened by the specter of long prison sentences, McDavid’s co-defendants, Zachary Jenson and Lauren Weiner, took plea agreements that included testifying against him at trial. So, in 2007, during the so-called “Green Scare,” a period of heightened investigations and prosecutions of environmental and animal rights activists, McDavid was tried, and despite the use of an entrapment defense, was nonetheless convicted of conspiracy. The following year, using new draconian laws, U.S. District Court Judge Morrison England applied the terrorism enhancement and sentenced McDavid to nearly 20 years.

The sentences handed down in the Cleveland case were inflated due to the application of the terrorism enhancement, but they were considerably shorter than the sentence McDavid received, which appears odd on its face since McDavid didn’t even have a plan.

Less than four months after McDavid was sentenced, another political FBI entrapment case was unfolding. In the summer of 2008, two Texas activists, Bradley Crowder and David McKay, traveled to the Republican convention in the Twin Cities accompanied by Brandon Darby, a paid FBI informant, who had been a well known and generally trusted radical activist up to that point. Darby coerced Crowder and McKay into making Molotov cocktails and even drove them to buy the materials. Though they decided against using them, the activists were still arrested for terrorism crimes. They eventually pleaded guilty and the government used this to create the impression of a vast, militant, political conspiracy that threatened public safety.

Then, as if to signal a serious attempt to discredit the Occupy Wall Street movement, less than three weeks after the Cleveland arrests, Chicago police conducted a midnight raid in advance of planned demonstrations against the North Atlantic Treaty Organization (NATO) last May, arresting several Occupy activists. Recovering what the state’s attorney claimed were Molotov cocktails, three out-of-town activists were charged under the never-before-used Illinois state terrorism statute and accused of plotting to firebomb Obama campaign headquarters, Mayor Rahm Emanuel’s home, and other alleged targets.

Just as with the Cleveland arrests, prosecutors wasted little time in pegging the NATO 3 as “violent anarchists.” With little apparent purpose other than to frighten the public, chill dissent ahead of a national protest and undermine the Occupy movement, the NATO 3 were charged with material support for terrorism and conspiracy to commit terrorism, among several other charges, and held on a $1.5 million bond. Mirroring the Cleveland case, infiltrators were used to spy on political activists for months leading up to the protests. The NATO 3 are currently in custody awaiting trial and are expected to use an entrapment defense, which will be very difficult to show.

In fact, no terrorism charges since 9/11 have been beaten based on an entrapment defense. To successfully assert an entrapment defense in federal court, a defendant must show by a preponderance of the evidence that they were induced to commit the crime. If that standard is met, the burden of proof shifts to the prosecutor, who must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. That may seem possible or even probable in some of the cases described above. But don’t be fooled. The 97 percent conviction rate for cases involving informants indicates it’s not.

The high conviction rate in “terrorism”-related cases is assured in part because the legal deck is stacked against defendants. In addition to the difficulty of waging an entrapment defense, the threat of long prison terms and the use of co-defendant testimony create strong incentives to plead guilty.

Like scores of others since 9/11, it seems evident that the Cleveland defendants pleaded guilty despite having been induced to participate in a manufactured crime by Azir, the informant. The young Cleveland activists stand as examples, deliberately spotlighted in the mainstream media, of the lengths to which the government will go to ensnare political dissidents in FBI-concocted “terror” plots. With the passage of anti-free speech laws like AETA, and by normalizing the use of heavy surveillance and infiltration of activist groups, the government has tried to discredit and disrupt social justice movements. To some extent, the government has succeeded in this effort to chill dissent, but with such a tenuous strategy, it’s likely just a matter of time before Americans stop believing the hype.

Kris Hermes is an activist who provides legal support work on cases involving political dissidents.