Heath Hinegardner
Prior to the summer of 2016, no one had ever been arrested or prosecuted under Arizona’s anti-terrorism laws. Since then, cases have been brought against four alleged terrorists, in three unrelated terror plots.
Each alleged terrorist was said to have ties to, or sympathies with, the Islamic State, commonly referred to as ISIS. The cases have been prosecuted by Arizona’s Republican Attorney General, Mark Brnovich, based on investigations conducted by the Federal Bureau of Investigation.
Mia Garcia, a spokeswoman for Brnovich’s office, said Arizona is in heightened danger, with “more threat, more plots, more planning” underway in the state’s “neighborhoods and communities.”
Yet in each of the Arizona terror cases, arrests and indictments came in the absence of any actual terrorist attack. Thanks to lower prosecution standards under Arizona law, the cases were based solely on words that had allegedly been spoken, written, or committed to Internet search engines.
Civil liberties advocates warn these prosecutions may mark the beginning of a new and dangerous trend.
Civil liberties advocates warn these prosecutions may mark the beginning of a new and dangerous trend.
“What we are seeing in Arizona does seem to be a new issue,” said Hugh Handeyside, a staff attorney with the American Civil Liberties Union’s National Security Project. “And it does raise the question of whether the FBI is using the lower threshold for the prosecution of terrorism-related crimes in Arizona as a way to get around what is already quite a low threshold of investigation and prosecution at the federal level.”
Mahin Khan of Tucson was arrested by the FBI on the afternoon of July 1, 2016, at the outset of a long Fourth of July weekend. Khan, who had just turned eighteen, was said to be an “ISIS supporter” and a “violent jihadist,” plotting attacks against several targets in Arizona and California.
Last October, Khan accepted a plea agreement, pleading guilty to a terrorism conspiracy charge and related subordinate offenses. In November, he was sentenced to eight years in prison, to be followed by a lifetime of probation.
Mahin Khan
Mahin’s mother, Shazia Khan, said in an interview that her son has behavioral and intellectual difficulties. At the time of his arrest, a former tutor told local media that the boy had the mental capacity of a six-year-old and was not capable of the plot he was charged with. “He doesn’t have the ability of learning anything,” said the tutor, Auguste El-Kareh.
A former tutor told local media that the boy had the mental capacity of a six-year-old and was not capable of the plot he was charged with.
Mahin’s behavioral and intellectual impairments were so severe, said Shazia, that local schools would not accept him. Instead, Mahin stayed at home with his mother and took educational courses online.
According to court documents, Mahin had come to the attention of the FBI in 2013 “after the FBI received information that Khan expressed interest in performing acts of terrorism.” According to Shazia, Mahin had written an email to one of his instructors, expressing frustration and anger over U.S. drone strikes in the Middle East.
Shazia said the FBI told her that Mahin needed to undergo a mental health evaluation; the family consented. FBI agents, she said, transported Mahin to a private mental health facility in Tucson, where Mahin was held for forty-five days—undergoing evaluations and receiving counseling and medication.
After his release, Shazia said, FBI agents would visit the house “every month or every two months” and question Mahin about such things as ISIS and acts of terror. Prior to these discussions, she said, Mahin had not been aware of ISIS.
Meanwhile, Shazia became aware of suspicious people around her son—including a man named “Nathan” who attended their mosque and who presented himself as an Afghan bodybuilder.
Shazia kept a close eye on her son, even taking away his cell phone. When Mahin would use the house phone, his mother would listen in. Shazia recalled one such overheard conversation in which Nathan, whom she believed was around twenty at the time, tried to persuade her then fourteen-year-old son to move in with him—saying he and others would protect the boy from the FBI.
Shazia said she confronted Nathan, telling him to stay away from her son—and even reported the man to the FBI. However, as she began making inquiries within the local Muslim community about Nathan, she was told that the man was widely believed to be an FBI informant.
“We tell everything [about Nathan] to the FBI also, we give his photograph, we give everything,” said Shazia. “[But] because that’s their informer, that’s why they don’t do anything. You can’t believe how they play this game.”
According to court documents, Mahin drew renewed FBI interest in April 2015 after emailing a “known operative” of ISIS/ISIL in Syria and describing himself as a jihadist living in the United States. In October 2015, according to court records, Mahin began communicating with an undercover FBI employee who claimed to be an ISIS operative. According to Shazia, this man was known to her as “Omar.”
“Omar called at my house, trying to talk to Mahin, because I never leave Mahin alone. . . . I told him, ‘Why you call my son? Stop calling my son. Next time if you call my son, I am telling the FBI your number, your name and everything,’ ” said Shazia. “And I'm stupid, because I don’t know that’s FBI person. I’m talking to FBI person.”
Court records show that the FBI did an end-run around Mahin’s protective mom. It took two undercover FBI employees approximately a month and a half to smuggle a phone to the boy. They finally succeeded on May 19, 2016—an occasion where, according to Shazia, she had let Mahin out of her sight while visiting family in Minnesota.
On June 18, 2016, Mahin Khan turned eighteen and became an adult. The FBI arrested him less than two weeks later.
The statement of probable cause issued at the time of Khan’s arrest listed two Arizona state charges. The first was an offense of “terrorism,” the allegation being that Khan had prepared or planned “for an act of terrorism by seeking assistance in obtaining weapons, a recipe for an improvised explosive device and identifying potential targets to commit a terrorist attack against.”
The document alleged that, in February 2016, Khan had contacted an alleged representative of the terrorist group Tehrik-e Taliban Pakistan and requested a “pressure cookie revepir [sic].” This, the FBI stated, was believed to be a reference to a “recipe” to build an improvised explosive device using a pressure cooker.
The second charge against Khan alleged a “conspiracy to commit terrorism”—by conspiring to buy two assault rifles and a pistol and “identifying an Air Force recruitment center in Tucson as a potential target of a terrorist attack.”
Shazia Khan says she was told at the time of Mahin’s arrest that the U.S. Attorney’s Office had declined to prosecute her son, but the Office of the Arizona Attorney General decided to take up the case.
Cosme Lopez, a spokesman for the U.S. Attorney’s Office for the District of Arizona, said he could “neither confirm nor deny” whether the FBI’s case against Khan had been rejected by federal prosecutors. Jill McCabe, spokeswoman for FBI Phoenix Field Office, declined to comment on any aspect of the Arizona terrorism cases or on any aspect of the FBI’s work with the Arizona Attorney General’s Office.
Under federal law, a charge of conspiracy to commit an act of terrorism requires an overt act in furtherance of the conspiracy. No such “overt acts” were claimed in connection to the alleged terrorism conspiracy. Rather, the FBI’s entire case was a collection of emails, texts, tweets, and conversations with FBI informants collected over the course of nearly four years—nearly every single word of which was uttered or written by a minor with a demonstrably stunted intellect.
Arizona state law did not require the commission of any “overt act” to prosecute terrorism conspiracies. Instead, an alleged terrorism conspiracy can be prosecuted with only the demonstration of an “agreement” between two conspirators.
But according to Arizona Attorney General’s Office spokeswoman Garcia, the case hit another snag. Arizona law, at the time of Khan’s arrest, defined “terrorism” as an offense inflicted on Arizona state agencies or state buildings. The probable cause statement alleged that Khan conspired to target an Air Force recruitment center—a federal building, not an Arizona state building.
On July 6, 2016, the Arizona Attorney General’s Office issued an indictment charging Khan with conspiracy to commit terrorism and related offenses. It named an Arizona Department of Transportation Motor Vehicle Division building in a Phoenix suburb as the target of the terrorism conspiracy.
According to court documents, Khan agreed with a co-conspirator to an attack on the Motor Vehicle building. This communication most likely took place through the cell phone provided by the FBI. According to court documents, the co-conspirator was an undercover FBI employee—most likely the man known as “Omar,” whom Shazia Khan had purportedly threatened to report to the FBI while trying to protect her son.
Similar tactics have marked Arizona’s other prosecutions of alleged terrorists.
In October 2016, the FBI arrested a couple, Michelle and Thomas Bastian, in a “terrorism conspiracy” case seemingly tailor-made for Arizona’s “terror conspiracy” law. The Arizona Attorney General’s Office issued an indictment accusing them of plotting to detonate a bomb in the state prison complex where Thomas was already serving a life sentence for murder. No overt acts were alleged to have taken place in the furtherance of this terrorism conspiracy. Thomas was alleged to be a “radicalized” member of the Islamic faith and a supporter of ISIS. Both have pled not guilty. Their cases are pending.
On December 20, 2016, FBI agents arrested Phoenix resident Derrick Raymond Thompson, also known as Abu Talib Al-Amriki. A probable cause statement issued at the time alleged that Thompson had engaged “in communications and activity that show material support for [ISIS].” It said Thompson, a convicted felon, had attempted to purchase a firearm “with the intent to use the handgun in a ‘lone wolf’ type attack in Arizona,” and had performed Google searches for such terms as “midnight mass” and “(martyrdom) v. suicide.”
Furthermore, on an undisclosed date in October 2016, Thompson had allegedly posted a public comment to his Google Plus profile stating, “Right, we need to get down with this ISIS shit.
On December 28, Thompson was formally charged with “participating in a criminal syndicate,” “assisting a criminal syndicate,” and “attempted misconduct involving weapons.” The Office of the Arizona Attorney General, in a press release, accused Thompson of “supporting a foreign terrorist organization.” Yet, the word “terror” does not appear in the indictment. The Arizona statutory definition of “terrorism” could not be applied to Thompson, as he had given no indication that any Arizona state government target had crossed his mind.
On the basis of Thompson’s public YouTube and social media posts, the FBI had obtained a search warrant for access to Thompson’s Google records. One posted comment was made in response to a YouTube video entitled, “New ISIS Video Calls for Attacks in the U.S.” While flagged in a court filing as being particularly incriminating, the comment simply stated that Thompson “converted to Islam since the implementation of the Islamic State.” He also allegedly posted a response to a YouTube video discussing a “terrorist attack” in Garland, Texas, stating, “Islamic State is officially in America. The war has begun.”
According to court documents, records obtained from Google by the FBI showed that Thompson had performed searches for such terms as “fatwa on killing civilians” and “az state gun show,” as well as searches related to felon rights of arms possession and various weapons. FBI agents also allegedly discovered an email, dated January 26, 2015, in which Thompson—a convicted felon whose rights had not been restored—allegedly contacted a man advertising a pistol for sale on Backpage.com. This “attempted misconduct” involving weapons was alleged, in the context of Thompson’s Internet activity, to constitute Thompson’s “assistance” of ISIS.
Thompson was arrested on December 20, 2016, roughly two months after the most recent Google searches cited by the probable cause statement and “ISIS shit” comment, and nearly two years after the Backpage.com email.
The trouble with the theory of prosecution advanced by the Office of Arizona Attorney General Brnovich in the Thompson case is that all of the statements allegedly made by Thompson in support of ISIS (essential to the charges of “participating” in and “assisting” ISIS) may be protected speech under the First Amendment.
In 2010, the U.S. Supreme Court issued a ruling in Holder v. Humanitarian Law Project that delineated protected and non-protected speech in the context of federal statute prohibiting "material support" of foreign terrorist organizations. (Support may be verbal, such as advice or training.)
All of the statements allegedly made by Thompson in support of ISIS (essential to the charges of “participating” in and “assisting” ISIS) may be protected speech under the First Amendment.
According to University of Notre Dame law professor, and terrorism law expert, Jimmy Gurulé, the ruling was clear: Independent advocacy of a foreign terrorist organization is protected under the First Amendment; speech made under the direct control of such a group is not. Thompson is not alleged to have made any statement under the direct control of ISIS.
“If you’re [advocating] under their direction or control, that violates the statute. But if you’re doing it as independent political advocacy, that cannot be prosecuted,” said Gurulé. “And if it is prosecuted, it runs afoul of the First Amendment right to free speech, political speech.”
Eugene Volokh, an attorney who teaches First Amendment law at the University of California-Los Angeles, agreed that Thompson’s comments and Google searches are protected speech under the First Amendment. Volokh cited another U.S. Supreme Court case, Brandenburg v. Ohio, which found that general advocacy of criminal conduct is not restricted unless it is intended to and likely to produce imminent illegal conduct.
Thompson’s attorney, John Champagne, filed a motion to remand Thompson’s case to the grand jury for a redetermination of probable cause. Among other issues, Champagne stated that the Arizona Attorney General’s Office had failed to notify the grand jury of protected speech under Brandenburg.
“Mr. Thompson's speech is protected First Amendment speech. The state presented no evidence to the grand jurors that Mr. Thompson's speech had incited any likely or imminent serious harm,” wrote Champagne. "Indeed, the state presented a large number of public comments on YouTube and Google+ with the intent of scaring the Grand jurors into convicting [sic] Mr. Thompson . . . .”
“Mr. Thompson's speech is protected First Amendment speech. The state presented no evidence that his speech had incited any likely or imminent serious harm."
In February, Champagne argued that Thompson is nowhere near the threat the authorities made him out to be. The court agreed with Champagne and lowered Thompson’s bail. On March 20, Thompson posted bond and was released from the Maricopa County Jail. His case is ongoing.
Early this year, Arizona Attorney General Brnovich touted a piece of legislation, SB 1350, seeking to expand the state’s definition of “terrorism” to include civilian/private sector targets, as well as federal targets and county or city agencies. The bill also criminalized statements of “advice, assistance, or direction” in support of “terrorism,” created new terrorism offenses, and provided mandatory minimum sentences for those convicted.
On March 29, 2017, Arizona Governor Doug Ducey signed SB 1350 into law.
Beau Hodai is a freelance investigative reporter. He can be reached at bhodai31@gmail.com.