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Copyright © 2018 Albuquerque Journal

The five defendants arrested after authorities found a dead child at a compound north of Taos in August are now under investigation for a specific terrorism-related charge that has never before been filed in New Mexico, according to a court filing by federal prosecutors.

While the possible charge – providing material support to terrorists – is unprecedented for New Mexico, it has been used hundreds of times across the country in cases related to jihad, said Karen Greenberg, director of the Center for National Security at Fordham Law School.

The case began as a child abuse matter in state court in northern New Mexico. Since then, it has morphed into a case with allegations of terrorism playing out in federal court, where local prosecutors are being assisted by an attorney in the Department of Justice’s Counterterrorism Section. In fact, federal prosecutors recently said that more serious charges will soon be filed, possibly for terrorism or kidnapping offenses.

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Court testimony has referred to evidence involving defendant Siraj Ibn Wahhaj: international travel to countries, including Saudi Arabia and Morocco; a manual describing the “stages of a terrorist attack” that was found at the compound; and the fact that the FBI prepared a report after Wahhaj and his brother attended a Black Lives Matter march in Atlanta prior to Wahhaj and the other defendants arriving in New Mexico.

Prosecutors in an October motion seeking to give the case “complex case status” said that, while the defendants have been charged only with gun crimes, they are under investigation for kidnapping and providing material support to terrorists. A search of a federal court database found that the latter charge had never been filed in a federal court in New Mexico.

Defense attorneys said they are not sure why the government thinks their clients may have supported any terrorist group. Nothing in the public record indicates what support they may have provided, or which terrorist organization the government thinks the defendants are connected to.

“They have not shared any information with us thus far that would indicate any of the defendants were engaging with providing material support to terrorism, so I have no clue,” said Kari Converse, an attorney for one of the defendants.

Greenberg said the terrorism law, which has been in effect since the mid-1990s, can be interpreted broadly as far as what constitutes “support.” In one prior case, it was used against someone who provided another with a sleeping bag. Other times, it has been used against someone who downloaded and shared materials found online, and it has also been used against people who gave financial support or weapons to certain groups.

She said it doesn’t require that the defendant is providing support for a specific attack.

So far, federal authorities are considering the charge, and no one has been formally accused.

Tip leads to raid

Taos County Sheriff’s deputies were the first to raid the compound in search of Abdul-Ghani Wahhaj, a 3-year-old boy who was later found deceased. The deputies were acting on a tip about horrible living conditions at the compound. The tip came from a family member who was searching for the child.

Five adults and 11 children, ages 1 to 15, were found at the compound, and law enforcement officials have said the children appeared to be malnourished. The children have been placed in the custody of the state Children, Youth and Families Department.

One of the defendants, Jany Leveille, has been charged in federal court with being an illegal immigrant in possession of a firearm and ammunition. The other four defendants, Siraj Ibn Wahhaj, Hujrah Wahhaj, Subhannah Wahhaj and Lucas Morton, have been accused of a conspiracy related to Leveille’s alleged weapon possession. All the defendants are in their mid-30s to early 40s, and all remain in jail.

None of the five defendants is facing charges in connection to the death of 3-year-old Abdul-Ghani Wahhaj, whose body was found inside a tunnel on the compound in Amalia near the Colorado border in August.

The case sparked additional controversy when the state charges were dismissed after prosecutors failed to meet the necessary timelines.

Federal authorities quickly stepped in and filed weapons charges against the group.

Abdul-Ghani Wahhaj was Siraj Wahhaj’s son. Authorities have said the boy died because the defendants withheld vital seizure medication.

FBI Special Agent Travis Taylor said in a court hearing in September that the disabled child was taken from his biological mother in Georgia before arriving in New Mexico in late 2017. Abdul-Ghani lived with the five defendants and their 11 children.

Taylor said Abdul-Ghani died during a ruqyah, which is similar to an exorcism in the Islamic faith. He said that according to eyewitness interviews, Abdul-Ghani would cry, scream and foam at the mouth, and his eyes would roll back in his head during the rituals, which were performed for hours a day until he died.

Authorities have said there was more to their case than just the weapons charges. Taylor said that, while at the compound, the group, including the children, trained in military skills. They learned to fire weapons and reload while on the move. They also practiced clearing rooms and other tactics.

Court documents have accused the group of training some of the children to carry out armed attacks for purposes of jihad, a holy war against enemies of Islam.

The indictment says that, between December 2017 and August 2018, the defendants in Taos County tried to recruit and train people, including children, to prepare to engage in jihad and to die as martyrs in violent attacks on government, military, educational and financial institutions in fulfillment of Leveille’s religious prophecies.

When authorities raided the compound in August, they found multiple firearms, a manual telling how to perform a terrorist attack and fight hand-to-hand, according to court documents and testimony.

During a September court hearing, Taylor was asked about Siraj Wahhaj’s travel overseas, including to Saudi Arabia. The agent was also asked about an FBI 302 – a summary of an FBI interview – about Siraj Wahhaj attending a Black Lives Matter march before the events that led to criminal charges. After each question, attorneys in the case held a bench conference with the magistrate judge overseeing the hearing, and the testimony continued without getting an answer from Taylor.

Defense attorneys have moved to remove the language in the indictment concerning jihad and martyrdom, saying it could prejudice a jury if the case goes to trial.

“Anytime you have a client charged with a crime and the government tries to allege other crimes in the indictment or inflammatory or prejudicial material in the indictment, you want to have the record clear that is not what they are charged with,” said Carey Bhalla, a defense attorney in the case.

More charges possible

Prosecutors, however, indicated last month that a new indictment making more serious allegations against the group may be forthcoming.

“The United States has made both the defendants and the court aware that investigation of this matter continues,” the prosecution’s reply states. “There will be at least one superseding indictment. A superseding indictment alleging terrorism and or kidnapping offenses may yet address the defendants’ concerns.”

“We haven’t seen any evidence of that so far,” said Amy Sirignano, another defense attorney in the case. “If they have evidence to support (providing material support to terrorists) then they need to do what they intend to do and bring the evidence that supports it.”

Officials from the U.S. Attorney’s Office for the District of New Mexico could not be reached for comment last week.

Defense attorneys, meanwhile, said they are waiting to see what additional charges, if any, their clients will face. A magistrate judge ruled in September that the group will remain in custody.