Justice for All?

By Steve Downs Washington Report On Middle East Affairs September/October 2007

For the past three years, I have witnessed the federal government’s attempt to destroy the life and family of Yassin Aref, a Muslim imam from Albany, New York. In 2004, the government brought bogus terrorism-related charges against him in an FBI sting operation. In October 2006 Yassin was convicted of some of the charges, and in April 2007 he was sent to the federal prison in Terre Haute, Indiana to serve a 15-year sentence. There he was placed in the Communication Management Unit (CMU), a special wing of the prison formed in December 2006 for the purpose of isolating prisoners, especially Muslims whose offenses include anything even indirectly related to terrorism (see May/June 2007 Washington Report, p. 12).

I am one of Yassin’s attorneys. After retiring as a lawyer from a New York state agency, I volunteered to help lead attorney Terry Kindlon with Yassin’s case and trial, so I’ve had plenty of time to watch the disintegration of my client’s life and family, as well as the collateral damage and fear my government has inflicted on the Muslim community.

Yassin, an Iraqi Kurd, came to Albany in 1999 from Syria as a refugee from Kurdistan, in northern Iraq. Eventually he became the imam at a local mosque in Albany, New York. At some point after 9/11, the FBI began to illegally wiretap and eavesdrop on the mosque and on Yassin. In a Jan. 17, 2006 story, The New York Times reported that this warrantless wiretapping was conducted under a National Security Administration (NSA) program which bypassed required court approval.

When this illegal eavesdropping failed to turn up any improper activity on Yassin’s part, the FBI engaged a Pakistani immigrant named Malik, who already had been convicted of 80 to 100 felonies in a scheme to market fraudulent drivers licenses, and essentially told him that the government would make all of his legal troubles go away (and cancel his scheduled deportation) if he could entrap Yassin into terrorist activity by means of a concocted “sting.”

According to the fictitious plot, the government set Malik up as a supposed secret arms merchant who sold missiles to terrorist groups, particularly JEM (Jaish-e-Mohammed), which sought to liberate Muslim Kashmir from India. Malik offered to loan money to a member of Yassin’s mosque if Yassin would witness the transactions for free in the Islamic tradition (as a notary does, under American law)–a perfectly legal and even praiseworthy act by Yassin, under normal circumstances.

For a proper “sting,” Malik was to tell Yassin that the money for the loan came from the sale of missiles to JEM, which intended to use the missiles in an assassination in New York City. If Yassin witnessed the loan transactions with the intent to help Malik conceal the illegal source of the money for the loan, he would be guilty of several terrorist-related crimes.

But Malik did not give Yassin the necessary information for him to understand the illegality of the plot, the loan, or the witnessing. As a result, the sting never developed; instead, it became a simple frame-up by the government. Information concerning the missile plot essentially was woven into four conversations, which Malik secretly tape-recorded over a six-month period, in such a way that Yassin, who was still learning English, would not have understood what was being proposed. Indeed, it is unlikely that anyone would have understood it.

In three of the conversations the references to a missile were so obscure or concealed that Yassin had no reaction to them, and apparently did not even hear or understand them. In these tapes he appeared completely unaware of any illegal activity. In one conversation, Malik handed Yassin a wad of money to count in connection with the loan. While Yassin was concentrating on counting the money, Malik pulled out the handle of a shoulder-fired missile (which looked like a large stapler) and said in an aside to the recipient of the loan (Yassin’s co-defendant), “This is part of the missile I showed you.” Yassin never looked up, never saw the handle, and would not have recognized it if he had. (The FBI was proud of this approach, claiming that if they had shown Yassin the missile itself, he might have been “spooked”——meaning that he might have recognized it as a missile and called the police, thus ruining their “sting.”)

The only time Yassin ever reacted to Malik was in a conversation during a dinner party at Yassin’s house, attended by people who were strangers to Malik. In front of these strangers, Malik suddenly interjected into the conversation that people should not go to New York City next week because there was going to be an attack. (It’s not clear exactly what he said, because he supposedly “lost” his tape recorder, so there was no tape of this critical conversation.) Yassin told Malik to leave the house, and later told him he should not make such jokes because people might misunderstand. Yassin testified that it was clear to him that Malik was joking about an attack in New York City, because what real terrorist would blurt out information about a future attack in front of strangers? (In any event, how was a vague reference to an attack in New York related to the loans that Yassin was witnessing?)

This was the essence of the evidence against Yassin. The government also successfully smeared him in front of the jury, however, with information suggesting that, for a brief time during his employment in Syria, he knew Mullah Krekar, who is presently associated with the terrorist group Ansar al-Islam. The problem is that at the time Yassin knew him, Krekar was not a terrorist–and Ansar al-Islam did not exist! In 1999, when Yassin came to America, Krekar, with American aid, was helping the U.S. liberate Iraq from Saddam Hussain. It was not until 2003 that Krekar helped found Ansar, and the U.S. government classified it as a terrorist organization. This information was completely irrelevant to the sting charges, but very prejudicial; the jury eventually convicted Yassin of 10 of the 30 counts against him.

At our first meeting after his conviction, Yassin told me he wanted to fire me as his lawyer. He had enough lawyers right now, he explained, but he did not have any family in this country, and he wanted to hire me as his brother, since he thought family would do him more good at this point than lawyers. (I accepted.)

Yassin’s constant plea was that his wife and children be taken care of. Thus, as his brother, I found myself immersed in the tragedy of a family destroyed by the government. The children, ranging in age from 1 to 12, were very bright and Americanized, in contrast to their reserved, traditional mother. The family had no source of income except charity from the mosque and from hundreds of people in the Albany area who believed that Yassin was innocent and had been framed.

Yassin’s own childhood had been horrific. Caught in the middle of a 30-year war and genocide against the Kurds, his village, along with 1,200 others, was destroyed by Saddam Hussain during the Anfal campaign, in which 180,000 Kurds were murdered. Yassin and his family lived in extreme poverty; they had to hide in the mountains to escape army attacks, and almost died of starvation. He started to work at age 10 to support his family, and was surrounded by almost continual violence.

Yassin came to the United States because he wanted a better life for his children. After his conviction he was tormented by the fear that history was repeating itself. In Kurdistan, he told me, life was so hard that people would fight to get into a prison like the one in the Albany region where he was being held, in order to get three good meals a day and a safe place to sleep. “I am not suffering,” he would say. “It is my wife and children who suffer. What fault did they ever do?”

A “Radical” Imam

Yassin told me that he used to play hide-and-seek and tag in the mosque with the children of its members, and that sometimes strangers who saw a grown man frolicking with children in a house of prayer would demand to see the imam to complain. Yassin would then introduce himself as the imam and explain that Allah loved to see children having fun——and what better place than in the mosque? “You see?” he said to me, with a grin at his own joke. “I am a radical imam——just not the kind of radical imam the government thinks I am.”

The verdict also was traumatic for Albany’s Muslim community. Its members knew that Yassin was innocent; he was a respected imam and had never been involved in any illegal activity. If he could be framed this easily by the government, all of them were in danger.

Many non-Muslims in the area also recognized that the government’s framing of an innocent man, apparently for political reasons, was an attack on the Constitution itself. These citizens came together around a common goal: to have the charges against Yassin and his co-defendant appealed and dismissed, to protect the men’s families from any further harm, and to work for justice for both men.

The whole community was dismayed when we learned that Yassin was going to the Terre Haute prison, and even more so when we realized how the CMU isolated prisoners and eventually destroyed their relationships with their families. Did it make sense to drive four young children over 850 miles to Terre Haute to visit their father through a window and talk to him on a phone for a few minutes each? Yet if we did not make the trip, how could they maintain their relationship with him?

Yassin’s transfer to the CMU was based on the following specific information provided in a written notice by the prison system: “Your current offenses of conviction including Providing Material Support & Resources to a Foreign Terrorist Organization & Conspiracy to Use a Weapon of Mass Destruction. Your offense conduct included significant communication, association and assistance to Jaish-e-Mohammed (JEM), a group which has been designated a foreign terrorist organization.”

The irony of this statement is that when Malik told Yassin in the secretly recorded conversations that he was working with JEM to liberate Kashmir from India, Yassin responded over and over that he did not know anything about JEM except what he had heard about it on television, and that he was not interested in supporting it. Yassin had no contact with JEM, did not want any contact with JEM, and did not believe he was supporting JEM. In fact, he never gave any support to JEM because the whole plot was fictitious–and Yassin knew nothing about the plot because he was told nothing about it.

Yassin’s conviction, of course, is a frightening reminder to the Muslim community that it is being targeted, while sending a politically reassuring message to the country that the government is hard at work catching terrorists——even if the defendants are not real terrorists at all, but simply people the government can frame. This certainly does not make the country safer–indeed it makes us less safe by undermining the rule of law.

Recently I was walking in Albany with Yassin’s oldest son after I had taken him for a doctor’s visit. Muslims who worked in the neighborhood and who normally would have passed by without comment nodded and smiled at me. I suddenly realized that this was because I was with Yassin’s son. People knew him, and knew what had been done to his father, and if I were with him I must also be part of their community in some way.

The experience reassured me that Yassin’s case will not be forgotten. His family still lives in the community as silent witnesses to the government’s reign of terror against people who have no involvement or interest in terrorism. Injustice, no matter how we try to rationalize it as part of a “war on terror,” is still injustice, and it will not be forgotten.

Steve Downs is a retired New York State attorney and is a former member of Yassin’ Aref’s legal team.

For more information about the case: Yassin Aref and Mohammed Hossain Defense Committee.