PHILADELPHIA (CN) – The convictions against the so-called Fort Dix Five, a group of New Jersey residents snared in a plot to attack the military base, should be tossed on the basis of unconstitutional wiretaps and prejudicial evidence, defense attorneys argued in a hearing of the 3rd Circuit.
A jury convicted the men in December 2008 after a three-week trial in which prosecutors used a trove of surveillance to prove that the defendants were plotting a violent jihadist attack against soldiers stationed at Fort Dix in New Jersey.
Jordanian-born Mohamad Shnewer and three Albanian brothers – Dritan, Eljvir and Shain Duka – received life sentences. A fifth man, Turkish-born Serdar Tatar, was sentenced to nearly 33 years in prison.
The men were arrested in May 2007 while trying to acquire machine guns and assault rifles in an FBI sting operation. Federal investigators had been watching the group since January 2006, when the FBI obtained a videotape of the five men that had been brought to a Circuit City store for copying.
The video depicted men shooting guns in Pennsylvania’s Pocono Mountains, and shouting “Allah Akbar!” and “jihad in the States.”
Outside District Court on Monday, a throng of women in robes and multicolored veils argued their case writ large on handmade signs decrying “Entrapment of Muslims” and “Selective Ethnic Prosecution.”
Czurada Duka, 52, mother of the three Duka brothers, told Courthouse News she was disgusted by the actions of an informant in the case.
“He worked for money, but he should be in the place of my sons,” she said outside the courthouse.
At least two of her sons are serving life sentences at the ultra-secure ADX Florence facility in Florence, Co.
“They are very strong kids, but imagine you are staying for 24 hours in a bathroom,” she said.
The Duka brothers’ sister, Naze, 24, said “most people now are starting to see that these are all set up cases.”
She said she was underwhelmed by the Muslim community’s response to her brothers’ arrest.
Christians “are the ones helping us through the whole thing,” Naze Duka said.
“Rather than the Muslims coming out, it’s the Americans coming out [to support her brothers],” she added.
Last week, a study from New York University’s Center for Human Rights and Global Justice cited the Fort Dix Five as a case study proving that “government-manufactured” terrorism cases are a “myth” that pose “intolerable threats to basic human rights across the country.”
Naze Duka said her brothers had simple intentions in trying to buy high-powered weaponry. “Like every man usually is, they were into guns,” she said, adding that the video of the Dukas allegedly training for terror in the Poconos was really just a depiction of boys being boys.
“They all used to go for one week to get away from their wives,” she said.
The NYU study describes the video as footage of a hunting trip that also captured the men riding horses, skiing and playing paintball.
Czurada Duka, their mother, said the FBI paid a personal visit to her home after someone yelled “Allah Akbar” at a prior hearing. Agents allegedly told her: “If they say again ‘Allah Akbar,’ we’re going to arrest the family.”
Naze Duka said the family’s phones are still being tapped.
“You hear voices while you’re talking,” she said. “You hear the click. You know when your phone is tapped.”
Through it all, Czurada Duka said she doesn’t feel entirely defeated.
“I have hope. I have hope because they are innocent people,” she said.
Nonsense, the government told a three-judge panel of the 3rd Circuit inside the cavernous ceremonial courtroom.
“The evidence that the defendants were conspiring to kill soldiers on military installations in New Jersey was overwhelming,” Assistant U.S. Attorney Norman Gross said, echoing the government’s brief.
“The fighting issue in this case is: when the defendants were talking … were they serious, or were they just talking to blow off steam?” Gross said.
The defense framed the appeal differently, arguing that the central question should be whether the government was allowed to listen when the defendants were talking.
With this argument, the defendants lodged a facial challenge to the Foreign Intelligence Surveillance Act, claiming that the government’s incriminating wiretaps were illegal, as FISA was unconstitutionally amended by the Patriot Act in October 2001.
Attorney Michael Riley, representing Shain Duka, said the warrant process under FISA is deeply troubling, and violates the Fourth Amendment.
When law enforcement requests a warrant for surveillance in a non-FISA case, that request is subject to review by a neutral magistrate. The entity requesting the surveillance must also specify the scope of the warrant and notify criminal defendants about the surveillance order.
Affidavits used to support issuance of a warrant are normally subject to a Franks Hearing, where defendants can challenge the veracity of information in the affidavit and suppress the fruits of the warrant if that information is proven false.
As Chief Judge Theodore McKee put it, non-FISA warrant protocol allows a defendant to “get behind the affidavit.”
Riley continued that the FISA warrant process tosses these safeguards, providing only “a limited opportunity to challenge the warrant.”
Prosecutor Gross saw it much differently, saying that the FISA warrant process strikes a balance between preserving a defendant’s rights and removing impediments that could block the government from uncovering plots by foreign governments and terrorists looking to attack the United States.
“In order to effectively conduct counter-espionage, you need the type of protections that FISA has erected,” and cannot allow the same disclosures as in non-FISA cases, Gross said.
“There have been safeguards placed in the statutory framework,” he added.
“The government jumped through all of the FISA hoops” before conducting surveillance to prevent the plot against Fort Dix, Gross said.
An application for a FISA surveillance warrant is subject to dual review by an Article Three judge on the Foreign Intelligence Surveillance Court and high-level executive branch officers, including the attorney general, he argued.
Defense attorney Riley countered that such review is based on a standard that is wholly unconstitutional.
The Patriot Act revisions to FISA broadened the purpose of a FISA warrant to include both foreign-intelligence gathering and – unconstitutionally – surveillance for use in domestic criminal prosecutions, the defense argued.
Whereas law enforcement once had to show that the proposed surveillance would have a “primary purpose” of collecting foreign intelligence, now it need simply say that such collection constituted a “significant purpose” of the surveillance.
That standard is unconstitutional, tainting the wiretaps and necessitating that the defendants’ convictions be overturned, Riley argued.
He added that the government should have been barred from playing excerpts from beheading videos and other jihadist tapes.
“There’s no evidence in this case that defendants ever intended to use decapitation,” and the videos “should have never been introduced to the jury,” Dritan Duka’s attorney Michael Huff said.
“While all [are] gruesome, there are, of course, degrees of gruesome,” Huff said. The fact that the videos depicted “actual civilians being killed” rendered them “highly prejudicial,” he said.
But prosecutor Gross said the videos had significant probative value that showed both the “outputs” and the “inputs” of the defendants’ beliefs.
The videos “show what’s going on inside the heads of these defendants,” Gross said.
“They trained themselves watching these videos over and over again,” he said. “What we wanted to show is how the defendants trained themselves so they could commit cold blooded murder.”
Chief Judge McKee didn’t buy it.
“It’s problematic to me,” he said, adding that the videos had “minimal probative value.”
“I don’t know why these things were admitted,” McKee said. “They didn’t have to be admitted.”
Some people watch jihadist videos out of curiosity, and viewing them “doesn’t mean, as I’m watching them, that I’m sympathizing with the captors.”
Gross contends that the Fort Dix Five were not merely curious young men entertaining themselves with violent jihadist videos.
The wiretaps, the videos, the planning – it all proves that when the defendants talked about launching a murderous jihad operation against American military personnel, they meant what they were saying, he told the panel.
“How do we know they meant it,” Gross asked. “Because they trained for it.”