Suit Challenges Federal Terrorist Watchlist

Suit was filed yesterday in a Massachusetts federal district court challenging the federal government's terrorist watchlist system.  In a 185-page complaint, 12 Muslim plaintiffs sued 29 federal officials claiming violations of the 4th and 5th Amendments, the Religious Freedom Restoration Act and the Administrative Procedure Act.  The complaint (full text) in Khairullah v. Garland, (D MA, filed 9/18/2023), alleges in part:

3. Plaintiffs were placed on the federal terrorist watchlist by Defendants’ interagency watchlisting system, which evaluates individuals for inclusion under a vague, rubberstamp-at-best standard that is satisfied nearly 100% of the time. Plaintiffs were not notified of their nomination to or inclusion in the watchlist. They have no idea why the government considers them worthy of permanent suspicion, have no opportunity to dispute the government’s decision or confront the supposedly derogatory information on which their placement is based....

5. The stigma and harm of watchlisting placement lasts a lifetime, even if Defendants eventually ... remove an individual from the watchlist. Several agencies retain records of past watchlist status and continue to use that historic status to deny formerly-listed individuals ...  security clearances, employment, access to government buildings, and other licenses and permissions....

9. ... Over 98% of the names on leaked portions of the watchlist from 2019 are identifiably Muslim.... Defendants consider origin from Muslim-majority countries, travel to Muslim-majority countries, attending mosques and Islamic events, zakat donations to Muslim charities, the wearing of typical Muslim dress, Muslim-sounding names, the frequency of Muslim prayer, adherence to Islamic religious practices, Islamic religious study, the transfer of money to individuals residing in Muslim-majority countries, affiliations with Muslim organizations, and associations with Muslims in the United States or abroad to be suspicious, and routinely nominate Muslims to the watchlist on the basis of those characteristics and activities....

12. Defendants create, maintain, administer, and use the watchlisting system without congressional approval and oversight, targeting Plaintiffs and thousands of other American Muslims in the shadowy corners of federal agency power.

CAIR announced its filing of the lawsuit as well as the release of its 2023 Muslim Community Travel Discrimination Survey.   VOA also reports on the lawsuit.

FBI Charges Michigan Man with Plotting Mass Casualty Attack at Synagogue

Last week, the FBI filed a Criminal Complaint charging a 19-year-old Michigan man with taking steps to plan a mass casualty suicide attack on a synagogue in Lansing, Michigan. The Criminal Complaint (full text) in United States v. Seann Patrick Pietila, (WD MI, filed 6/16/2023) sets out extensive Instagram postings and alleges in part:

[Pietla] communicated Neo-Nazi style ideology, antisemitism, suicidal ideologies, glorification of past mass shooters (that advocate similar ideology), and a desire and his intent to mimic past mass shooters/mass casualty incidents.

... [He] specifically references admiration for Brenton Tarrant.... Tarrant committed acts of mass murder in New Zealand. On March 15, 2019, Tarrant committed two consecutive mass shootings on Mosques located in New Zealand. Tarrant killed 51 people and injured 40 more. Tarrant live-streamed his attack via Facebook Live.

The Criminal Complaint alleges violation of 18 U.S.C. § 875(c) which bans sending in interstate commerce any communication containing a threat to injure another person, reports:

During the execution of the search warrant, investigators located the following items of evidence: .40 caliber pistol ammunition, .22 caliber ammunition, 12 gauge shotgun ammunition, a 12-gauge shotgun, a .22 caliber rifle, a Sig Sauer .40 caliber pistol (serial # 24B049058), .223 rifle magazines, an Apple iPhone 11, various knives and bladed instruments, scopes and firearms accessories, a camouflage tactical vest, a black tactical vest, black skull masks, a red and white Nazi flag, a ghillie suit, gas masks, and military sniper/survival manuals.

 Law & Crime reports on the charges.

8th Circuit Upholds Constitutionality of Federal Ban on Damaging Religious Real Property

In United States v. Hari, (8th Cir., May 10, 2023), the U.S. 8th Circuit Court of Appeals upheld the constitutionality under the Commerce Clause of 18 USC §247.  The statute bars damaging religious real property because of the religious character of the property, and bars obstructing a person's enjoyment of free exercise of religion by force or threat of force against them or against religious real property, when the person's conduct affects interstate commerce. The court said in part:

Here, the statute specifically requires that the offense “affects interstate or foreign commerce.” This “ensures, through a case-by-case inquiry, that each defendant’s [offense] affected interstate commerce.”

The court also upheld defendant's conviction under 18 USC § 924(c)(1) for carrying or using a destructive device during and in relation to any crime of violence.  The conduct for which defendant was convicted was described by the court:

In August 2017, Emily Hari loaded a pickup truck with a 20 pound pipe bomb, two assault rifles, and a sledgehammer and drove with two confederates from Illinois to the Dar al-Farooq Islamic Center in Bloomington, Minnesota. The trio smashed a window of the Imam’s office before the parishioners’ dawn prayer and threw gasoline, diesel fuel, and the pipe bomb inside. The bomb detonated. No one was injured; the building suffered fire and smoke damage. Hari and the others fled.

House Committee Seeks Documents on FBI Interest in Radical Traditionalist Catholic Extremists

Yesterday, U.S. House Judiciary Committee chairman Jim Jordan issued a subpoena to FBI Director Christopher Wray seeking documents related to the FBI's attempt to monitor possible violent extremism among radical-traditionalist Catholics.  In an April 10 Committee Press Release (full text), the Committee said in part:

From this limited production, it is apparent that the FBI, relying on information derived from at least one undercover employee, sought to use local religious organizations as “new avenues for tripwire and source development.”... 

The FBI similarly noted two other opportunities to engage in outreach with religious institutions in the Richmond area, citing a desire “to sensitize the congregation to the warning signs of radicalization and enlist their assistance to serve as suspicious activity tripwires.” This outreach plan even included contacting so-called “mainline Catholic parishes” and the local “diocesan leadership.” 

The subpoena cover letter (full text) says in part:

The Committee on the Judiciary is conducting oversight of the Federal Bureau of Investigation’s (FBI) handling of domestic violent extremism investigations against Catholic Americans and its effect on protected First Amendment activity....

We have repeatedly sought information from the FBI relating to a January 23, 2023 document generated by the Richmond Field Office entitled “Interest of Racially or Ethnically Motivated Violent Extremists in Radical-Traditionalist Catholic Ideology Almost Certainly Presents New Mitigation Opportunities”.... In this document, the FBI purported to categorize Catholic Americans based on theological distinctions and relied on the Southern Poverty Law Center to suggest that certain kinds of Catholic Americans may be domestic terrorists.

A report by Bloomberg on the subpoena adds:

There was no immediate response from Wray, but he told senators last month that the document “does not reflect FBI standards” and the bureau “took steps immediately to withdraw it and remove it from FBI systems.”

“We do not conduct investigations based on religious affiliation or practices, full stop,” Wray told the Senate Intelligence Committee.

Waiver In Plea Agreement Precludes Appeal Of Ban On Possessing Antisemitic Material

In United States v. Holzer, (10th Cir., April 25, 2022), the U.S. 10th Circuit Court of Appeals held that the appellate waiver provision in defendant's plea agreement precludes him from appealing Special Condition Nine of his supervised release which he contends infringes his freedom of religion, thought and expression. The court explains:

Defendant Richard Holzer was arrested and criminally charged after federal undercover agents determined that Holzer had taken substantial steps towards bombing a synagogue in Pueblo, Colorado. Holzer subsequently pleaded guilty, pursuant to a written plea agreement, to one count of intentionally attempting to obstruct persons in the enjoyment of their free exercise of religious beliefs through force, in violation of 18 U.S.C. §§ 247(a)(2) and (d)(3), and one count of maliciously attempting to damage and destroy, by means of fire and explosives, a synagogue, in violation of 18 U.S.C. § 844(i). The district court sentenced Holzer to a term of imprisonment of 235 months, to be followed by a fifteen-year term of supervised release. The district court also ordered Holzer to comply with eleven special conditions of supervised release, including Special Condition Nine, that prohibits him from acquiring, possessing, or using any material depicting support for or association with antisemitism or white supremacy.

ISIS Supporter Pleads Guilty To Planning Ohio Synagogue Attack

The U.S. Attorney's Office for the Northern District of Ohio announced that yesterday Damon M. Joseph, aka Abdullah Ali Yusuf, pleaded guilty today to attempting to commit a hate crime by planning an ISIS-inspired attack on a synagogue in the Toledo, Ohio area. He also pleaded guilty to providing material support to ISIS and the Islamic State of Iraq. According to the Cleveland Jewish News, a preliminary plea agreement provides for a 20-year prison sentence for Joseph.

Various Challenges To Terrorism Watch List Practices Can Move Ahead

In El Ali v. Barr, (D MD, July 20, 2020), a Maryland federal district court allowed some of the plaintiffs to move ahead with challenges to practices involving inclusion on terrorism watch lists. The court explained:

Plaintiffs are 39 individuals—37 U.S. citizens and two legal residents—who claim that inclusion in the Government’s Terrorism Screening Database (“TSDB”) and various related Watchlists impair or prohibit air and land travel in the United States. Plaintiffs allege that their list status, or status by association with those on a list, subjects them to constitutionally impermissible detentions, searches, and screening at airports and land border entries, or in some cases, denial of air travel altogether. Relatedly, Plaintiffs allege that their list status has burdened their families and businesses, and inflicted other wide-ranging harms.

Among the claims that can move ahead are claims of intentional religious and racial discrimination, as well as Religious Freedom Restoration Act complaints that individuals were interrogated about their Muslim religious practices, and that interrogations and detentions interfered with the ability to perform Umrah and Hajj. The court dismissed the claim that offers to clear up plaintiffs' problems if they would act as FBI informants imposed a substantial burden on their religious exercise. CAIR issued a press release announcing the decision.

Suit Challenges Prof's Radical Interpretation of Islam

This week, a Muslim student at Scottsdale, Arizona Community College filed a lawsuit against the college and a World Politics professor claiming that the faculty member's course contains a module on Islamic terrorism that is based on one-sided, biased perspectives of Islam. The complaint in Sabra v. Maricopa County Community College District, (D AZ, filed 6/2/2020) (full text of complaint and exhibits are at the end of this CAIR press release) alleges that the professor violates the Establishment Clause by teaching that Islam mandates terrorism without telling students that only some extremists believe this. It also claims that the professor violated the free exercise clause by requiring the student to agree to the professor's radical interpretation of Islam in answering a quiz. A law firm was commissioned to conduct an outside review of the College's response to complaints about the professor's actions. The full text of that report is at the end of this article from Fronteras.

Procedures For Inclusion On Terrorist Watch List Are Unconstitutional

In Elhady v. Kable, (ED VA, Sept. 4, 2019), a Virginia federal district court held that the procedures for including individuals in the U.S. government's Terrorist Screening Data Base ("Watchlist") violate plaintiffs' constitutional rights. The court held that plaintiffs' liberty interests are implicated by their inclusion in the Terrorist Watch List, and the process used to place a person on the list poses a substantial risk of erroneous deprivation of their rights to domestic and international travel, as well as interference with their reputational interests. RNS reporting on the decision notes that the case was brought by CAIR on behalf of 23 Muslim U.S. citizens who say they were wrongly placed on the list.

Nigerian Court Bars Shiite Group as Terrorists

Legit reported today that the Nigerian federal government has obtained a court order banning the Shiite group Islamic Movement in Nigeria on the ground that it is a terrorist group. A Federal High Court justice, Nkeonye Maha, issued the order and designated the activities of the Shiite movement in any part of Nigeria "as acts of terrorism and illegality".

Terrorist Shootings By White Supremacist In 2 New Zealand Mosques Kill 49

The Sun has details of the mass shootings by a white supremacist at two mosques in New Zealand today which killed 49 and injured 48 others, 20 of them critically. The Guardian and Perth Now describe the killer's rambling 74-page manifesto which he titled The Great Replacement.  The full text of the manifesto is available here.

Abortion Protester's Bomb Prophecy Was Not A "True Threat"

Thames v. City of Westland, (ED MI, April 20, 2018) is a suit by a pro-life advocate who was arrested and held over the weekend on charges of making a terrorist threat while protesting at an abortion clinic.  Kimberly Thames, while picketing the clinic, allegedly said "I prophesy bombs, I prophesy bombs. There is going to be a bombing in the near future."  A Michigan federal district court concluded that an issue of fact exists as to whether officers had probable cause to arrest Thames:

Mich. Comp. Laws § 750.543m only criminalizes “true threats” which involve a “serious expression of an intent to commit an act of unlawful violence,”.... In the vague context allegedly used by Thames, at least a jury question exists as to whether it amounts to a true threat.

The evidence suggests that Defendant Officers did not consider the statement to be a true threat as they did not direct evacuation of the clinic, did not request the assistance of a bomb squad, did not request the assistance of a bomb sniffing dog, did not search the clinic for a bomb, did not search the surrounding area for a bomb, did not search the adjacent parking lot for a bomb, did not search the dumpster for a bomb, and did not impound Thames’ vehicle for fear that a bomb might be planted in it.

The court denied motions for summary judgment on wrongful arrest, retaliatory arrest (as to some defendants) and equal protection claims.

Challenges To Placement On Terrorist Watch List Are Dismissed

In Amiri v. Kelly, (ED MI, Jan. 30, 2018), a Michigan federal district court dismissed claims challenging denial of a visa to a British national and placement of him and his wife (a permanent U.S. resident who is an Iranian national and a British citizen) on a terrorist watch list.  Plaintiffs claim that the data bases used by the government in making these decisions contain unsubstantiated information based on plaintiffs' imputed Muslim religious beliefs.  In rejecting plaintiffs' 1st Amendment challenge, the court said in part:

Plaintiffs have failed to state a claim for a violation of the establishment clause of the first amendment, as they have identified no government action with a non-secular purpose that has a principal effect of advancing or inhibiting religion, or that results in excessive government entanglement with religion..... Plaintiffs also fail to state a claim under the free exercise clause. They do not allege that they have been compelled to engage in a practice that violates their religious convictions, refrain from doing an act required by their religious convictions, or affirm or deny a belief contrary to their religious convictions. Indeed, Plaintiffs do not claim to be Muslim, but rather accuse Defendants of presuming they are Muslim.... 

Plaintiffs also fail to state an equal protection claim as they fail to allege that they have been treated differently than similarly situated individuals of a different nationality....  Nor do they allege that they are treated differently based on their religion, as they do not claim to be Muslim.

Full Transcript of President Trump's Speech To Leaders of Muslim Nations

President Donald Trump today delivered a highly-anticipated speech in Riyadh, Saudi Arabia to leaders of Mulim nations. Here is the full transcript of the speech in which he said in part:

This is not a battle between different faiths, different sects, or different civilizations. This is a battle between barbaric criminals who seek to obliterate human life, and decent people of all religions who seek to protect it. This is a battle between Good and Evil.

When we see the scenes of destruction in the wake of terror, we see no signs that those murdered were Jewish or Christian, Shia or Sunni. When we look upon the streams of innocent blood soaked into the ancient ground, we cannot see the faith or sect or tribe of the victims – we see only that they were Children of God whose deaths are an insult to all that is holy.

But we can only overcome this evil if the forces of good are united and strong – and if everyone in this room does their fair share and fulfills their part of the burden. Terrorism has spread across the world. But the path to peace begins right here, on this ancient soil, in this sacred land. America is prepared to stand with you – in pursuit of shared interests and common security.

But the nations of the Middle East cannot wait for American power to crush this enemy for them. The nations of the Middle East will have to decide what kind of future they want for themselves, for their countries, and for their children.

It is a choice between two futures – and it is a choice America CANNOT make for you. A better future is only possible if your nations drive out the terrorists and extremists. Drive. Them. Out.

DRIVE THEM OUT of your places of worship. DRIVE THEM OUT of your communities. DRIVE THEM OUT of your holy land, and DRIVE THEM OUT OF THIS EARTH.

Here is the Washington Post's coverage of the speech.

Criminal Complaints Filed Against JCC Bomb Threat Perpetrator

The Department of Justice announced that on Friday criminal complaints were filed against Michael Kadar, a dual American-Israeli citizen living in Israel, who allegedly telephoned bomb threats to Jewish institutions around the U.S. earlier this year. According to the Criminal Complaint filed in federal district court in Florida:

Beginning on January 4, 2017, and continuing until March 7, 2017, an individual, later identified as KADAR, made at least 245 threatening telephone calls involving bomb threats and active shooter threats. A significant portion of the threats targeted Jewish community centers ("JCCs"), and other historically Jewish institutions such as Jewish schools and Anti-Defamation League offices.

A Criminal Complaint was also filed against Kadar in a Georgia federal district court charging him with making a series of "swatting" calls to public schools and residences in Athens, Georgia.  The Forward reports on developments. [Thanks to Michael Lieberman for the lead.]

UPDATE: In Israel today, Kadar was charged in a Tel Aviv Magistrate's Court with various other crimes, including an attempt to extort a U.S. Senator, Ernesto Lopez. (Haaretz).

Russian Supreme Court Bans Aum Shinrikyo As Terrorist Organization

According to Interfax and Russia Beyond the Headlines, the Russian Supreme Court yesterday agreed with the Prosecutor General's Office and the Federal Security Service that Aum Shinrikyo is a terrorist organization. The decision to ban the organization's activities in Russia was made after an in camera hearing by the Court.  Wikipedia describes Aum Shinrikyo as a Japanese doomsday cult best known for its 1995 Sarin attack on the Tokyo subway system. Aum Shinrikyo combines elements of Eastern religions and Christianity, but is generally seen as an offshoot of Japanese Buddhism.

Russian President Signs Anti-Terrorism Law That Restricts Religious Proselytizing

According to reports from USCIRF, Russia Religion News, and Forum18, last week Russian President Vladimir Putin signed into law a package of anti-terrorism measures that were passed by the Russian State Duma in late June. The measures, part of which place extensive new restrictions on religious missionary activity, take effect on July 20. As explained by USCIRF:

The anti-terrorism measures would, among other provisions, amend the 1997 Russian religion law by redefining "missionary activities" as religious practices that take place outside of state-sanctioned sites. The new law thus would ban preaching, praying, proselytizing, and disseminating religious materials outside of these officially-designated sites, and authorize fines of up to $15,000 for these activities conducted in private residences or distributed through mass print, broadcast or online media.  Foreign missionaries also must prove they were invited by state-registered religious groups and must operate only in regions where their sponsoring organizations are registered; those found in violation face deportation and major fines.

According to Forum18:

Another part of the package of laws sharply increases Criminal Code Article 282.2 punishments for those convicted of allegedly "extremist" activity, who are often Jehovah's Witnesses and Muslims who study the works of theologian Said Nursi. These punishments were last increased in February 2014.

[Thanks to Scott Mange for the lead.] 

CAIR Sues Challenging Procedures For Terrorist Watch List

Last week, CAIR-Michigan filed two federal lawsuits challenging the federal government's operation of the Terrorist Screening Database.  Inclusion on the list leads to placement on the no-fly list and on lists restricting access to licenses and firearms.  The suits allege that almost all Americans known to be on the watch list are Muslims or persons who could be mistaken for Muslims.  One of the suits, Baby Doe v. Piehota, (ED VA, filed 4/5/2016) (full text of complaint) is a class action seeking damages. The other, Elhady v. Piehota, (ED VA, filed 4/5/2016) (full text of complaint) seeks injunctive and declaratory relief. The suits contend that selection of individuals for the watch list is illegally motivated by religious status and denies those on the list substantive and procedural due process rights by stigmatizing them and burdening their right of movement. Among other things, the suits seek a change in the watch list so that individuals placed on the list are furnished notice of the reasons for their inclusion and an opportunity to contest their listing.  CAIR issued a press release announcing the filing of the lawsuits.

Minnesota Federal Judge Creating Innovative Deradicalization Program Aimed At ISIL Recruits

The Minneapolis Star Tribune and MPR News reported yesterday that Minnesota federal district judge Michael J. Davis is setting up an innovative Terrorism Disengagement and Deradicalization Program aimed at deradicalizing defendants convicted of plotting to join ISIS.  Davis has presided over most of the terrorism trials of young Somali-Americans in Minnesota. In court papers filed in the case of four men who pleaded guilty to conspiracy to provide material support and resources to ISIL, the court says it plans to have the U.S. Probation Office work with a consultant from the German Institute on Radicalization and Deradicalization Studies to recommend an individualized intervention program tailored to each defendant's circumstances and underlying radicalization factors.  The U.S. Attorney's Office is fully supportive of the new initiative.  Defense attorneys have not yet decided whether to accept the plan.

Free Exercise Defense Raised For Teen Charged With Attempting To Support ISIS

The Chicago Sun-Times reported yesterday that the attorney for Chicago teenager Mohammed Hamzah Khan has filed a motion to dismiss the indictment against Khan on First Amendment grounds.  The 19-year-old Khan was arrested at O'Hare Airport in October as he and his younger brother and sister were trying to travel to the Middle East to join ISIS.  He was charged with knowingly attempting to provide material support and resources to a foreign terrorist organization.  According to a long and interesting article last month in Rolling Stone on the three siblings, Khan wrote in a letter to his parents:

An Islamic State has been established, and it is thus obligatory upon every able-bodied male and female to migrate.

In his motion to the court filed last week, Khan's attorney, Thomas Anthony Durkin, argued:

While it is easy to disagree with Mr. Khan’s unpopular religious beliefs and label them misguided simplistic, or even fundamentalist, it cannot be said that [they] were not sincerely held — and that is all that must be shown.