The Fort Dix Verdict: A Victory for Pre-emptive Prosecutions

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Shirley Shepard / AP

An artist's drawing showing defendants Shain Duka, bottom left, Eljvir Duka, Dritan Duka, Mohamad Ibrahim Shnewer and Serdar Tatar in a federal courtroom in Camden, N.J.

Technically, the verdict Monday in the Fort Dix terrorism case — in which five defendants were accused of plotting to attack the Fort Dix military base in New Jersey — was mixed. After deliberating for six days, the jury at Federal District Court in Camden, N.J., acquitted the defendants of attempted murder but found them guilty of conspiring to murder members of the U.S. military. "It shows that the portrait that was painted by the U.S. Attorney as a slam dunk case was not accurate," said Rocco Cipparone Jr., one of the defense attorneys.

But in truth the verdict is a significant victory for the federal government, and not just because the conspiracy conviction is likely to put the men away for life, when U.S. District Judge Robert Kugler sentences them in April. It proves that the government can convince a jury to support the idea of pre-emptively prosecuting terrorism cases — a risky strategy that has yielded mixed results in the past.

"The word should go out to any other would-be terrorists of the homegrown variety that the United States will find you, infiltrate your group, prosecute you and send you to a federal prison for a very long time," said acting United States Attorney Ralph Marra Jr.

Since 9/11, the FBI has begun using legions of Muslim or Arabic informants, many of them illegal immigrants with criminal records, to try to root out radicals before they strike. But the strategy has led to accusations that the informants are themselves hatching the crime, a charge that hung over the entire Fort Dix proceedings. (See the Top 10 Crime Stories of 2008 here.)

In the case, the FBI used two informants to record hundreds of hours of conversations with the men, all of whom were foreign-born Muslims raised in and around Cherry Hill, N.J. The first informant, Mahmoud Omar, was an Egyptian who had pleaded guilty to fraud in 2001. The U.S. government had tried to deport him on two different occasions. But then in 2006 the government began paying Omar and the deportation case went away.

Under the direction of the FBI, the informant befriended Mohamed Shnewer and his friends, Dritan, Shain and Eljvir Duka and Serdar Tatar. For 16 months, he recorded conversations with the men, some of which included vague allusions to jihad and an ill-formed plan to attack the Fort Dix military base. The men watched jihadist videos and took trips to a shooting range. Omar drove one of the defendants to do surveillance of possible targets, and he offered to buy illegal weapons for the group. No attack was carried out, but the defendants were arrested in May 2007 after two of them attempted to buy automatic weapons. For his efforts, Omar was paid $240,000, and the government is likely to help him stay in the United States.

The other informant, Besnik Bakalli, was awaiting deportation when the feds asked him to infiltrate the group as well. On the stand, Bakalli admitted that he once shot a man in a family feud in his native Albania. He is also likely to be staying in the U.S. in exchange for his service.

Informants are common in drug and other criminal cases. But they pose a special challenge in terrorism cases, where the government cannot afford to wait for the plot to play out before making arrests. As a result, the prosecution relies heavily on the informants — who often have powerful incentives to keep the case going. "Obviously, the model worked to achieve a conviction," says Cipparone, the defense attorney for Shnewer. "But looking at it systemically, I have significant concerns about the payment of informants in this context--informants with these kinds of backgrounds, given this much free reign."

The defendants, who are being held under highly restricted conditions in Philadelphia, are likely to appeal the verdicts. "They're more concerned about their families," says Troy Archie, defense attorney for Eljvir Duka. "They have faith in God, but they had kind of planned for a conviction."

Jennifer Marino, the wife of Dritan Duka, was in the courtroom with two of her five children to hear the verdict. "I'm still shocked. I don't get it," she said later. "The informants are evil, both of them. They kept pushing them."

The jurors in the case were sequestered and remained anonymous, an unusual arrangement which was ordered by the judge. In a statement accompanying the verdict, they described the decision as "one of the most difficult things that we have ever had to do....The burden imposed on us has been heavy, but we are confident that our verdict has been reached fairly and impartially."