For Or Against: Is the FBI foiling terrorist plots or creating them?

The U.S. Department of Justice won a major victory recently when a jury convicted three men in Kansas, who called themselves “The Crusaders.” They were convicted of conspiracy to use a weapon of mass destruction and conspiracy to commit a violation of the Civil Rights Act.

Ironically, this recent government victory serves as yet another major blow to the U.S. Constitution, and specifically, the First Amendment.

As a Muslim lawyer writing a book about the 2007 Fort Dix five case, involving five men entrapped on similar conspiracy charges, I see the irony in defending right wing extremists who referred to Muslims as “cockroaches” needing to be exterminated.

To be clear, their speech is odious and bone chilling. But the conduct and transgressions of the government to goad them into committing an act of violence is far more reprehensible.

According to in-court testimony, Dan Day, the government informant, who’d recently filed for bankruptcy, was unemployed and nearly homeless shortly before he began complying with the FBI. Day visited the Garden City library and found what he believed was an ISIS recruiting flyer, with an ISIS flag pictured, calling for an Islamic state. He delivered the poster to a friend in the local 3% militia, who in turn, delivered it to the FBI.

The flyer had actually pictured a Palestinian flag and advocated the creation and recognition of an independent Palestinian state. However, this was enough for the FBI to contact, interview and enlist the support of Day to infiltrate the 3% militia.

Shortly after, Day who remained unemployed, began receiving payments from the FBI in exchange for providing intelligence. At this point, he had not met any of the defendants.

After becoming acquainted with the defendants, Day continually redirected their vitriol to the Somali refugee Muslim community. He reportedly fabricated information for the purpose of inciting anger and vitriol, telling them ISIS was recruiting from a local library and that the refugees were driving $40,000 cars.

Day, a Garden City resident, knew of a nearby apartment complex minutes away from both his residence and the local FBI office that provided housing to many Somali Muslims. None of the defendants lived less than an hour’s drive from the apartment complex, according to exhibits shown at trial.

According to the defense, not only did the informant pick the location of the alleged attack, the evidence the government used to demonstrate the defendants’ intent to target the Somali community was also generated by the informant.

Court testimony and exhibits reveal the informant used a Samsung Tablet to pull up the map of the Garden City apartment complex. He then saved the map as a jpg file and, emailed it to his handler because he didn’t have a printer. The FBI handler printed the map, provided it to the informant, who in turn, gave it to Patrick Stein, another of the three defendants. That same map was found in the Stein’s truck where he’d presumably left it.

And if that wasn’t reasonable doubt enough, Stein was asked by a different undercover agent, “Brian,” who’d presented himself as a weapons dealer, about the location of the alleged attack. Stein didn’t know. He texted informant Day, who in turn retrieved the link from his handler, and then forwarded it to Stein. And still, when Stein tried to forward the link to the undercover, he sent the wrong link.

Though the Fort Dix five case I have been researching is distinct in many ways, there are deeply troubling similarities. The wire recordings in the Fort Dix reveal one of the two informants, Mahmoud Omar, consistently pressured Serdar Tatar to give him a map of Fort Dix. That was because his father’s pizzeria had an on-base pizza delivery service. Serdar reported Omar to the FBI as a possible terrorist because Omar’s pressure was so unrelenting. Omar would not tell Serdar specifics of his plan, only that the target was Fort Dix.

Ultimately, Serdar turned over the map, believing Omar would then discuss what his plan was, so that Serdar could inform the FBI. Unfortunately for Serdar, Omar did not provide any specifics.

Instead, he transferred Serdar’s map to Mohamed Shnewer, another one of the defendants. Shnewer did not ask for the map, nor did he study the map with either his codefendants or the informant after the transfer. The map was found at the bottom of his closet in his family’s home, where he lived with his parents and three of his five sisters. Three of the five defendants never saw nor knew of this map.

According to court exhibits, Day was paid $33,000 in exchange for cooperating with the government. Omar was paid nearly a quarter of a million dollars.

Certainly, I want my community and all communities to be protected from legitimate threats of violence. And there are many.

However, fabricating a plot, where none would have existed absent the constant and pervasive intervention of a paid informant working in collusion with the FBI, does not make us more safe. It criminalizes unpopular speech and beliefs protected by the First Amendment.

In the Kansas case, the Crusaders face 30 years to life in prison under nebulous conspiracy law, for hypothetically discussing acts of violence. They didn’t hurt anyone. In the Fort Dix five case, four of the five defendants will die in jail short of an evidentiary miracle. Serdar, despite turning the informant into FBI that employed him, is currently serving a 33-year sentence.

Recent investigative reports have uncovered the FBI tracking Black Lives Matter, Standing Rock, and other activist groups like PETA, for seemingly no other reason than their political views. The photographer Ernest Withers who took iconic photographs of the civil rights movement was also an FBI informant. If informants can infiltrate and goad right-wingers, it has and will do the same to the left.

Regardless of our politics, society needs to support the right to harbor hateful thoughts and speech even while vehemently opposing that ideology of hate. Government cannot be an instrument in contradiction to the Bill of Rights by criminalizing ideologies or speech.

The deeper question concerns whether the law prosecutes terrorists for what they’re doing or what they believe. We also need to answer if we are complicit in creating crimes in order to make the public feel safe. Because if that is true, there is no victory here.

Huma Yasin is an attorney, author of the forthcoming book, Conspiracy: The True Story of the Fort Dix Five, and co-founder of Facing Abuse in Community Environments. She is a Public Voices Fellow through The OpEd Project.