“I think Islam has been on trial,” said Nevine Elshiekh yesterday after three young US Muslims were handed down long sentences in a federal court in New Bern, North Carolina. The men, all between the ages of 23 and 27, were found guilty of terrorism conspiracy-related charges in a case that raises questions about preemptive prosecution in domestic terrorism cases.

Defense attorneys for Omar Aly Hassan, Hysen Sherifi and Ziyad Yaghi urged the judge to consider minimum sentences because the government’s case rested on testimony from paid undercover FBI informants and immature posts some of the defendants made on Facebook and other Internet forums. No specific act of harm was identified in the indictment.

Even so, all three received nearly maximum recommended sentences. Omar Aly Hassan was sentenced to 15 years (in his case, the maximum sentence) with credit for the two and a half years he has already served; Kosovo native Hysen Sherifi was sentenced to 45 years and may face deportation upon release; and Ziyad Yaghi was sentenced to 380 months, or approximately 31.5 years.

“Corrupted ideology the substance of conspiracy”

The case against the three is part of a pattern of preemptive prosecution of domestic terrorism cases, in that defendants are prosecuted before any act is actually committed. In this case, all of the defendants were convicted of conspiring to provide material support to an unspecified group of terrorists in an unspecified place at an unspecified time, and Sherifi and Yaghi were convicted for conspiracy to kidnap, kill, maim or harm an unspecified group of people in an unspecified place at an unspecified time.

“There has to be a specific crime,” said Robert McAfee, the defense attorney for Hysen Sherifi, an immigrant from Kosovo who faced life imprisonment for the five charges that a jury convicted him of after a one-month trial last September.

Goverment prosecutors throughout the day’s hearing insisted that the conspiracy the defendants were guilty of was “invoked in an attempt at pursuing a twisted version of Islam … that entailed instituting Sharia law,” and “violence against anyone they determined non-Muslim.”

US trial attorney Jason Kellhofer emphasized the perceived ideology of the defendants, saying in the case of Omar Aly Hassan that “corrupted ideology was the substance of the conspiracy,” and its purpose was to “institute Sharia law” and “rid the world of non-Muslims.”

Amongst the evidence that prosecutors used against Hassan was an email he sent to Anwar al-Awlaki, a US citizen who was extrajudicially executed in a US drone strike in Yemen last year. The government said that he was a senior talent recruiter and advocate for al-Qaida. His 16-year-old son, also a US citizen, was killed in a drone strike in Yemen two weeks later.

Kellhofer argued that Hassan’s endorsement on Internet forums of videos of Iraqis resisting US troops in Falluja demonstrated Hassan’s intent. He stressed that Hassan’s view of the conflict in Iraq was that “those Iraqis fighting Americans were simply freedom fighters,” and this was evidence of his desire to influence or affect government by violence or coercion.

US District Judge Louise Flanagan referenced Hassan’s prior criminal history for assault and marijuana charges in her sentencing assessment, and stated that Hassan “willingly became involved in the Internet terrorist propaganda machine that is a great canker in this world” by posting videos sympathetic to “mujahideen” fighting US forces.

Dan Boyce, Hassan’s defense attorney, meanwhile insisted that “What we heard at trial was witness after witness” and a “plethora of evidence” which shows that Hassan “was not an integral part in that conspiracy” to which a co-defendant, Daniel Patrick Boyd, pleaded guilty.

Throughout the day’s hearings, defense attorneys insisted that Boyd, who the government identified as the ringleader of the alleged conspiracy, was mentally ill and preyed on easily manipulated youth, and that the defendants had at various times cut off contact with Boyd.

When Boyd’s home was raided in July 2009 federal agents found a stockpile of weaponry, which Boyd had acquired legally, as well as material advocating “jihad.”

Boyd faced the most serious and numerous charges of all the defendants, though the most severe and specific conspiracy charges involving an alleged plot to attack a US Marine Corps base in Quantico, Virginia were dropped in the plea deal. Though he cooperated with the government in their prosecution of Hassan, Sherifi and Yaghi, Boyd testified that none of the three were implicated in any conspiracy with him.

Boyd’s two young sons, Zakariya and Dylan, aslo pleaded guilty and received reduced charges in exchange for cooperation with the US prosecutors. They were sentenced to eight and nine years in prison, and the judge presiding over the case stated she would review their sentencing pending their cooperation in the prosecution of a seventh defendant, Anes Subasic, later this year.

Daniel Patrick Boyd is to be sentenced following Subasic’s trial.

Hassan maintained his innocence in a statement he made before the court yesterday, saying “I was 19 years old when I met Daniel Boyd … I did make mistakes in my life, I did say some dumb things … but I am no terrorist.”

When he was read his sentence, Hassan exclaimed, “I deserve 15 years? What did I do?” Meanwhile, his family members reacted by crying and his father asserting that the judge should be sitting with the government prosecutors.

“I’m not a terrorist”

Defense attorney McAfee stated during Sherifi’s hearing that the alleged Quantico plot was Boyd’s creation, and that the only conversation about Quantico was made between Boyd and an undercover FBI informant.

“Only by mentioning my client’s name is he drawn into it,” McAfee said after reminding the court that the surreptitiously recorded conversation between Boyd and the informant was cut off when Sherifi approached the two men.

In a statement he made before the judge handed down a sentence, Sherifi stated “I’m not a terrorist … it is sad and unfair that the jury were inattentive and sleeping.”

Maintaining his innocence, he said he was charged with conspiracy and not extreme ideology, but it was his perceived ideology that was the center of the government’s case.

“ ‘Jihad’ means to strive for something. It’s obeying Allah,” Sherifi said. “It’s clear I don’t have that ideology that jihad means killing.”

He added that he broke with Boyd upon his return from Kosovo, where he had been living with his wife and young child. Referring to the selective recordings made by undercover agents admitted as evidence during the trial, Sherifi said, “They entrapped me to come back to this country, but they wouldn’t give me [access to] those tapes.”

“I just want to go back to my family and my people [in Kosovo],” Sherifi added.

Facebook posts “evidence” of conspiracy

Meanwhile, Jim Ayers, defense attorney for Ziyad Yaghi, emphasized that his client was not on any of the 700 hours of FBI recordings related to the case.

Countering the judge’s assertion that Yaghi was “conspiring to commit terrorist acts aimed at the kuffar or non-Muslims,” Ayers insisted that “there’s got to be something to show there’s an act” that Yaghi has committed. The government focused on posts Yaghi made on his Facebook wall, such as “If you’re munafiq, im a kill you,” which the US attorneys said was evidence of Yaghi’s intention to harm non-Muslims.

Yaghi stated during the hearing that Boyd admitted there was no conspiracy implicating him, adding that he “spent less than 24 hours with Boyd and [I’m] facing life. I don’t think that’s justice, I don’t believe that’s fair.”

In addition to posts Yaghi had made on Facebook, government prosecutors pointed to a 2007 trip to the Middle East that Yaghi made with co-defendant Omar Aly Hassan when both were 19 years old as evidence that Yaghi had gone to find “the battleground” for waging “jihad.” The government said the two were intending to meet with Daniel Patrick Boyd and Zakariyah Boyd in Israel but all four men were denied entry by the Israeli authorities.

Hassan and Yaghi traveled to Jordan, as did the Boyds, where they were later joined by Dylan, but the Boyds did not meet with Hassan and Yaghi in Jordan. Hassan and Yaghi disassociated themselves from the Boyds after returning to the US approximately one month later.

The government attorneys claimed and the judge upheld that Yaghi maintained contact with Boyd through a third party, Jude Kenan Mohammad, who is wanted by the US government but remains at large and is believed to be in Pakistan.

In his statement during his hearing, Yaghi said that he was not tried by a “jury of my peers,” as there were no Muslims on the jury, who were comprised of twelve individuals who have “no understanding of my religion or culture.”

Yaghi, whom the judge noted had a prior criminal record and a troubled family life as a child, stated that he maintained his innocence “and will do so til the very end.”

Community support

Supporters of the defendants packed the courtroom in the morning and afternoon. Most had made the 300-mile round trip from Raleigh to the coastal town.

“We were hoping for the minimum but expecting the maximum because of the trend” of high conviction rates in preemptive prosecution cases, said Mahen Khan, a friend of Omar Aly Hassan.

Khan said that some members of the Muslim community had been chilled by the case, but “The more they stay away from these cases, the more they’re going to be affected by them.”

He remained optimistic, however, adding that despite the chilling effect the case had on the community, there had been “increasing attendance throughout the trial.”

Commenting on the Catch-22 situation regarding the high rate of conviction in preemptive prosecution cases, Khan added, “Many people in these cases, they plead guilty to get a lighter sentence, whereas when people plead innocent, they can get a life sentence.”

During his statement before the judge read him his sentence, Sherifi referenced murder cases in which people had committed actual harm but were not identified as “terrorists” and received much lighter sentences than those Sherifi and his co-defendants were facing.

“It’s clear that this is all about ideology,” Sherifi told the judge, adding, “the reason we were oppressed, killed and terrorized [in Kosovo] was because of our religion, and I’m seeing that same thing over here, your honor, and this is very unjust.”