The Ft. Dix Fix Was In

The trial of the accused terrorists known as the Fort Dix Six, which got underway last month in New Jersey, was largely ignored by a national press preoccupied with a new president and the spiraling financial crisis. Yet today’s guilty verdict, which may put all the defendants in prison for life, is an alarming example of how far human rights have been eroded in the United States by the domestic “war on terror.”

If the US incursion into Iraq was considered a “preemptive war” to prevent a future threat to national security, the Ft. Dix trial amounted to “preemptive prosecution,” because the alleged terrorists were tried for their intentions rather than their actions in the name of preventing a terrorist attack. But such counterterrorism tactics, including the use of informants known as “cold inserts,” compromised basic rights and produced a troubling government case.

The use of informers known as “cold inserts,” compromised basic rights and produced a troubling government case.

The trial actually involved five men because the sixth pled guilty to lesser gun-related charges. All are in their early twenties. Three are brothers, ethnic Albanians from the former Yugoslavia: Dritan Duka, Shain Duka and Eljvir Duka, who became undocumented immigrants when their asylum applications failed. Mohamad Ibrahim Shnewer, Dritan Duka's brother-in-law, is a Palestinian cab driver from Jordan who became a naturalized citizen, and Serdar Tartar is a legal permanent resident from Turkey.

They were charged with conspiracy to commit murder and intent to kill US military personnel, offenses punishable by life in prison. The Dukas are also charged with possession and attempted possession of firearms and machine guns in the furtherance of a crime of violence.

The FBI claimed that the men were arrested when they attempted to buy automatic weapons for an attack on Fort Dix, a base mainly used to train army reservists. Authorities discovered the “jihad inspired plot” in January 2006 on a tip from a clerk at Circuit City who noticed that a home video he was asked to transfer to DVD appeared to show terrorist activity. The FBI maintained that the video records a training jaunt to the Poconos, where the accused fired weapons and played paintball, shouting " Allah akbar," to prepare for an attack.

US Prosecutor William E. Fitzpatrick alleged in opening statements that the five defendants’ “ motive was to defend Islam … their inspiration was Al-Qaeda and Osama Bin Laden. Their intent was to attack the US . . . the victims of that attack were to be the men and women who serve in the armed forces.” The government sought to prove the existence of a plot through a campaign of undercover surveillance and clandestine recordings.

Since September 11, 2001, the FBI has been using Muslim or Arabic informants in an effort to root out extremists before they attack. But because the FBI had no trained agents with the necessary backgrounds or language skills, it has had to recruit inexperienced civilians from the ranks of petty criminals. These informants are thrilled at the opportunity to reduce a prison sentence, avoid deportation or earn serious cash. But they don’t look very good in court.

One of the informants against the Ft. Dix defendants, Besnik Bakalli, 31, is an undocumented immigrant from Albania who pretended to have fought with the Kosovo Liberation Army against Serbia. Bakalli was convicted on weapons charges in Albania, and he began cooperating with the FBI in 2006 to avoid deportation. At the bureau’s behest, he befriended the Duka brothers and clandestinely recorded conversations with them for nine months. He represented himself as a Muslim, even though he testified that he was not, and “sometimes talked tough or challenged the brothers' sense of religious pride . . .but only to win their trust.”

The other informant, an Egyptian named Mahmoud Omar, who endured 14 days on the witness stand, had been convicted of bank fraud and filed for bankruptcy. When confronted in January 2005 by the FBI about the bank fraud, Omar tried to flee to Canada, but he was stopped at the border. The FBI then helped negotiate a settlement with Commerce Bank in exchange for Omar going undercover in the Fort Dix case.

Deportation proceedings against Omar were then dropped after he delivered a tape of one of the defendants, Mohammed Shnewer, making provocative statements about Fort Dix. The FBI’s main investigator on the case, John Stermel, testified that Omar had received about $180,000 in payments so far for his services to the FBI.

Under cross-examination, it also came to light that Omar was using marijuana during the surveillance period, hiding from the FBI cameras in his apartment to inhale. Moreover, it seems that Omar may have turned the hidden recorder on and off to diminish or eliminate exculpatory evidence, and that he suggested and orchestrated the so called “reconnaissance missions” that consisted solely of driving around the perimeter of the base.

Omar admitted during cross-examination that Dritan and Shain Duka—whom he described as “very good people”—did not appear to have any knowledge of the conspiracy to attack Fort Dix, and that he had alerted the FBI to that fact. But Bakalli testified that he had developed an intimate bond with the Duka family and had been told that the brothers decided to launch an attack in America because, with their compromised immigration status, they could not travel overseas to engage in a jihad.

The five accused chose not testify. Instead their attorneys presented closing statements that highlighted the contradictions and gaps in the government’s case. For example, Michael Huff, Dritan Duka’s attorney, cited a conversation in April 2007, one month before the men were arrested, in which Bakalli offered to help the men purchase weapons. According to tape transcripts, Duka declined the offer, stating: "We are good the way we are. We are not going to kill anything.”

Assistant U.S. Attorney Michael Hammer countered with dozens of quotes from the tapes in which the five accused expressed their commitment to a holy war, the need for secrecy, their desire to buy weapons and train for an attack.

The sequestered jury, made up of eight women and four men, began deliberations on December 17, and delivered its verdict today. All five men were found guilty of conspiring to murder military personnel, which carries a life sentence. Four of the five men were also convicted on related weapons counts. However, the jury acquitted the men on an additional charge of attempted murder. It appears that the jury chose to disregard the evidence of entrapment in the government’s case, choosing instead to send the chilling message that the terrorist threat is enough to justify a radical shift in the government’s moral and legal commitment to civil rights.

Carly Goldstone has worked with refugees, IDPs, immigrants and vulnerable groups for the last eight years in Australia, Denmark, Bosnia and Herzegovina (BiH) and the US. She has created and instituted programs and advocated on issues relating to gender persecution and the legal, social and policy concerns relating to fundamental human rights.