FBI's new approach: Minor charges now stop terrorism later

A federal affidavit says Hamid Hayat of Lodi spent months in an al-Qaida terrorist training camp learning how to shoot, use explosives and engage in hand-to-hand combat so he could "kill Americans."

His father, Umer, is accused of supporting Hamid Hayat's terror training.

Yet the Hayats face only relatively minor charges of lying to federal authorities.

Such charges have become common in the war against terror, as the FBI has shifted to a more pre-emptive approach: Stop terrorists and potential terrorists early, before any damage can be done.

"It's like cutting the fuse off the bomb before it's lit," said Chip Ellis, who coordinates the terrorism knowledge project for the National Memorial Institute for the Prevention of Terrorism located in Oklahoma City, Okla.

Such proactive arrests, though, have drawn criticism from some who claim the FBI is causing bitterness in communities where it should be building bridges.

The horrific terrorist attacks of Sept. 11, 2001, prompted the FBI to confront possible terrorists with a preventative approach rather than a reactive one. That method has included going after people for minor charges such as immigration offenses and making false statements, which are easier to prove than terrorist activity.

"Since 9/11, one of the FBI's primary goals is not only intervention but prevention" said Keith Slotter, the FBI special agent in charge of the bureau's Sacramento office.

In the Lodi case, the Hayats face federal criminal charges. Muhammad Adil Khan, 47, and Shabbir Ahmed, 37, both local imams are being held on immigration charges as well as Hassan Adil Khan, 19, Adil Khan's son.

U.S. Attorney McGregor Scott will only say that the investigation yielded information that led the FBI to the men arrested on immigration charges. He would not specify what that information was or if it had anything to do with the Hayats.

Scott said the charges against the Hayats carry a maximum penalty of eight years, but more charges could follow. Hamid Hayat faces two counts, while his father faces one.

Jack Cloonan, a retired FBI agent and counterterrorism expert with nearly 30 years of experience, said prevention has been a priority for the agency.

When he was part of a team working to apprehend Osama bin Laden in the '90s, prevention was a key goal.

"We ran operations overseas and found ourselves in places you just couldn't imagine," he said. "It's never going to be discussed publicly."

Several of those cases never came to prosecution and were never intended to -- they were part of an ongoing counterterrorism effort that "pushed the envelope" to get information, he said.

Now, in the years following 9/11, Cloonan said the FBI has had to conduct more public investigations to prove that it is actively pursuing the war on terror and not asleep at the wheel as some said in the days following the 2001 terrorist attacks.

"The bureau has been wounded and wounded badly and it needs to get back the public's confidence, and it does this through cases like this," he said. "The bureau has had to adapt to the criticism and that's what you're seeing in Lodi."

Cloonan said the charges against the Hayats are rather minor. He said wouldn't be surprised if agents were currently going through financial documents, computer files and other information.

That part of the investigation could "flush out other suspects" to build a larger conspiracy or provide evidence for more serious charges such as providing material support to terrorists.

Yet by conducting such visible investigations, Cloonan said there is the risk the FBI could become exposed and lose the chance to build contacts and sources within the communities it's investigating.

Al-Qaida cells usually operate with four to six people and Cloonan said members can often include well-educated professionals such as doctors and lawyers. If agents want to have any chance of finding those key figures, Cloonan said, they have to maintain their close connections within Muslim communities that may have al-Qaida operatives.

Risking public opinion

Opponents of the FBI's methods say the intense investigations of people on minor charges can alienate Muslim communities and unfairly try people in the court of public opinion before they get their day in court.

In 2004, a Saudi Arabian graduate student in Idaho, Sami Omar Al-Hussayen, was arrested, detained and went to trail for posting audio files on a Web site of radical imams urging people to attack Jews and Westerners. Al-Hussayen eventually was acquitted, chose not to fight immigration charges and was deported.

Also in 2004, a Portland lawyer, Brandon Mayfield, was freed after being detained for two weeks as a material witness to the Madrid train bombings, because of a fingerprint associated with the case. Mayfield was cleared of all charges.

"Many times the government will arrest someone on violations and will leak to the press they may have caught a terrorist," said Arsalan Iftikhar, the national legal director of the Council on American-Islamic Relations. Iftikhar said he sees that being the case in Lodi.

"The two imams were picked up on administrative charges," he said referring to Muhammad Adil Khan and Shabbir Ahmed. "But you know when Lodi first happened, the leaks to the press had two Muslim leaders caught in terror rings."

Syracuse University Law Professor William Banks is the director of the school's Institute for National Security and Counterterrorism.

He said it's hard to say if the FBI's counterterroism tactics have been successful, because it's hard to say if their efforts have prevented another terrorist attack on U.S. soil since 9/11.

"That's really hard to say for any of us not on the inside because there's so much not reported," he said.

According to a recent article by the Washington Post, the federal government claims it brought charges against just 200 people out of 400 total cases. The paper claims, however, that only 39 of those people have been convicted of crimes directly related to terrorism and the rest were found guilty on minor charges such as making false statements and immigration offenses.

The $64,000 question

That conclusion is disputed by Brent Smith, a criminal justice professor with the University of Arkansas.

Smith started and is helping to run the American Terrorism Study, an analysis of criminal cases from the FBI's counterterrorism program. He said the Post article failed to include about 100 other cases he has reviewed that show a greater rate of success for federal agents.

He said the tactics being used by the FBI are not that radical of a departure from the methods they used to prevent terrorism before 9/11.

"Traditionally terrorists commit a large number of preparatory offenses," he said, explaining they often have to buy weapons, forge documents and secure funding through illegal transfers. Those offenses often have set penalties and are far easier to prove for prosecutors than attempting to convince a judge or jury that someone intended to complete a terrorist act.

"Prosecutors over the years have found raising political motive in trials can be a fairly risky strategy in prosecuting people," he said.

He added the nation has seen a much larger number of terror cases in the years after 9/11 because field agents can open up terror investigations on their own, while in the past they had to wait for headquarters' approval.

The question remains though, Smith said, of when investigators should arrest and indict on minor charges or allow an investigation to continue to see what else can be dug up.

"That's the $64,000 question," he said. "Knowing when to intervene and when to let the investigation continue."

Contact reporter Andrew Adams at andrewa@lodinews.com.

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