MANHATTAN (CN) – The 2nd Circuit affirmed the convictions of Rafiq Sabir, a Columbia University-trained physician who swore an oath to al-Qaeda. In its 2-to-1, 109-page decision, the panel agreed that Sabir’s oath warranted a conspiracy conviction, though a chief district judge voiced “strong disagreement” with his colleagues, and said it did not rise to an attempt to provide material support.
Sabir swore an oath to an FBI agent posing as an al-Qaeda recruiter in 2005, telling him that militants “striving in the way of Allah” were “most deserving” of his help. In recorded conversations, Sabir swore a bayat (oath) to al-Qaeda, and gave the agent his personal and work telephone numbers.
A jury in 2007 found Sabir guilty of conspiracy and providing material support for terrorism. He was sentenced to 25 years in prison.
Sabir appealed on Nov. 28, 2007, claiming he had been convicted of violating an unconstitutionally overbroad statute and that his civil rights were violated during trial.
“Sabir’s purpose in swearing bayat was to formalize his promise to work as a doctor under the organization’s direction and control. That is most certainly evidence of a crime: the charged crime of attempting to provide material support to terrorism in the form of personnel,” Circuit Judges Ralph Winter and Reena Raggi wrote in the majority opinion.
The dissenting opinion came from Chief District Judge Raymond Dearie. He wrote:
“I find no case, in any court, that even remotely supports the majority’s conclusion that a defendant attempts a crime simply by agreeing to commit the crime and providing a phone number …
“Sabir was not charged with mere membership in al Qaeda or for being sympathetic to some radical Islamic cause. Signing on to the al Qaeda roster of loyalists (as reprehensible as that may be) is not, and could not be, the crime at issue, since Section 2339B does not criminalize mere membership in a designated foreign terrorist organization. It instead prohibits providing ‘material support’ to such a group.”
But the two other judged rejected what they called Judge Dearie’s “mistaken view.”
“Here, there is no question that Sabir was providing himself to work under the direction and control of al Qaeda – the jury heard him solemnly swear to do so … “We reject Chief Judge Dearie’s characterization of this conduct as merely passive.”
Dearie wrote in dissent that the FBI agent may have pressured Sabir into taking the oath.
“At the one meeting Sabir attended, he indeed chanted the mantra of the terrorist, led by the government agent and inspired by his co-defendant. But we are left to wonder whether his apparent enthusiasm would have, or even could have, led to action on his part,” Dearie wrote.
The majority rejected that argument as an “insinuation of entrapment,” which the judges noted Sabir did not claim during his trial.
Karen Greenberg, executive director of the Center on Law and Security, told The New York Times that she knew of no acquittals based on entrapment defenses in more than 30 terrorism prosecutions involving informers since 2001.
Sabir, who is black, objected to the government’s rejection of five black jurors.
The judges wrote that the prosecutors excused them for other reasons.
Two were excused because their viewing of the television show “CSI” might have given them “unrealistic expectations” about the forensic evidence prosecutors could produce, the judges wrote.
The judges ruled that one juror’s Google research during deliberations did not influence the verdict or merit a mistrial.
Dearie concluded, “In the end, a man stands guilty, and severely punished, for an offense that he did not commit. Therefore, I respectfully dissent.”
The majority summarized its position: “In sum, we conclude that the totality of the evidence was more than sufficient to permit a reasonable jury to find that on May 20, 2005, Sabir took a substantial step intended to culminate in the provision of himself as personnel to work under the direction of al Qaeda. Accordingly, we uphold his convictions for both conspiring and attempting to provide material support to a foreign terrorist organization.”