Innocent Muslim Student Prosecuted as a Terrorist and Jailed for 17 Months
by Hans Sherrer
Justice:Denied magazine, Issue 25, page 10
We are taught from our earliest days that the United States is a free country that respects freedom of speech, religion and association. So it might seem difficult to imagine what it would be like living in a country where you could be prosecuted for being a religious minority expressing opinions disliked by people in powerful government positions.
Thanks to the events of September 11, 2001, it doesn’t take much thought for Americans to imagine such a country, because the United States is now one of them. A little publicized provision of the Patriot Act of 2001 allows for the prosecution of a person who offers “expert advice or assistance” in the promotion of terrorism. 1 That conduct is now considered “material support” for terrorism. However what sort of behavior constitutes “expert advice or assistance” is an open-ended question that is left for federal prosecutors to answer in each particular case. 2 Could it, e.g., be considered a crime to design or maintain a website that expresses political or religious ideas that could be characterized by prosecutors as supporting terrorism?
In February 2003 Sami Omar Al-Hussayen found out how federal prosecutors in Boise, Idaho answer that question. The native of Saudi Arabia had a student visa to study as a computer science graduate student at the University of Idaho in Moscow, Idaho. His wife and three children also had visas to live in the U.S. while he was a student. In his spare time Al-Hussayen, a Muslim, designed and maintained several websites as a volunteer for a charitable Islamic outreach group, the Islamic Assembly of North America (IANA). Al-Hussayen’s disapproval of radical Islamics was well known in Moscow, where after the events of September 11, 2001 he organized a blood drive, a candlelight vigil, and publicly condemned the events as an affront to Islam. 3 In an open letter he wrote, “No cause could ever be assisted by such immoral acts.” 4
On February 23, 2003 Al-Hussayen was arrested at his Moscow apartment. He was subsequently indicted on three counts related to knowingly and intentionally providing “material support” in the furtherance of the terrorist acts of “murder, maiming, kidnapping, and the destruction of property.” 5 The alleged “material support” he provided to further terrorism was using his computer expertise to design and maintain several IANA websites. 6 He was also indicted on four counts of immigration violations related to the time he volunteered designing and maintaining the IANA websites, when his student visa did not permit him to work in this country. 7 He was also indicted on seven counts of making false statements related to his volunteer activities to help the IANA.
A federal magistrate ruled Al-Hussayen wasn’t a flight risk and ordered his release on bond pending his trial. However the U.S. Citizenship and Immigration Services (USCIS, formerly the INS) put a deportation hold on him and he wasn’t released. On April 25, 2003 an immigration judge ordered Al-Hussayen’s deportation after the conclusion of his criminal case and the serving of any sentence. 8 Al-Hussayen appealed that ruling. However his wife and three sons returned to Saudi Arabia in January 2004 when faced with deportation. 9
Al-Hussayen’s trial began on April 15, 2004 in Boise, Idaho. Federal prosecutors told the jury their case against Al-Hussayen was the result of a two year investigation that was one of the most intense terrorism related probes in the wake of September 11, 2001. 10 The prosecution’s strategy was to portray Al-Hussayen as a front man who used his computer expertise to assist, recruit, and fund an international terrorist network. In an attempt to prove that contention, prosecutors introduced thousands of pages of documents – including emails, phone logs, web pages and religious writings - and dozens of witnesses testified. However none of the testimony linked Al-Hussayen or the IANA websites to terrorism, and the documents showed most of the content on the websites was copied, or cut and pasted from news sources. The only prosecution documents that may have been suspect were “four fatwas, or religious edicts, by religious clerics” on another website, and which were merely linked to an IANA website. 11 The government also attempted to convince the jury that the unpaid time Al-Hussayen spent helping the non-profit IANA was a violation of his student visa because it actually constituted engaging in a business, and thus he didn’t tell the government the truth when he said he wasn’t working in this country.
After presenting their case for almost six weeks, the government rested their case in late May. The defense then presented a single witness: Frank Anderson, a former CIA Near East division chief with 27 years experience in the Middle East. 12 Anderson testified that the two websites attributed to Al-Hussayen had nothing to do with terrorism and did not foster terrorist activities. One of the websites promoted the Islamic religion and the other analyzed political events. He further testified the websites could be characterized as expressing religious and political ideas – but not terrorist sentiments. 13 Anderson also testified that religious extremists are not influenced to become “jihadists” by reading articles on the Internet. 14
The jury began deliberating on June 1st. After deliberating for seven days, the jury declared it had reached a decision on five counts and was hopelessly deadlocked on the remaining nine counts. They found Al-Hussayen not guilty of the three terrorism related charges and two of the visa charges, which negated one of the undecided charges, and the judge declared a mistrial on the remaining eight undecided charges. 15
After the trial one of the jurors, John Steger, said in an interview that the only inflammatory evidence the government presented, the four fatwas or religious edicts, “was protected free speech.” 16 Steger also said, “There was nothing we could see as black-and-white evidence” linking Al-Hussayen to terrorist activities. Another juror, Donna Palmer, said, “By the time we got to the end, there was no link” of Al-Hussayen to terrorism. 17 She also said, “It was reasonable doubt … there just wasn’t the evidence. A lot of times, I was wondering where this was going.” 18 Ms. Palmer also observed that the prosecution was incoherent, and “just bounced from issue to issue to issue.” 19
In regards to the undecided visa and false statement charges, the jurors were about evenly split. Juror Palmer said the problem was the language and definition of U.S. visa requirements is vague. What is volunteering? What is engaging in a business? At what point does volunteering become a business? It is all left up to the interpretation of immigration officials in each particular case. As Palmer explained, “We can’t find him guilty on interpretations. There needs to be something concrete to follow here and there wasn’t.” 20
The defense’s sole witness, Frank Anderson, noted, “I take satisfaction in the verdict. But I am embarrassed and ashamed that our government has kept a decent and innocent man in jail for a very long time.” 21
Al-Hussayen’s Ph.D. advisor at the University of Idaho, Professor John Dickinson, visited him several times prior to the trial and attended the trial. He said he kept waiting for the prosecution to produce any evidence that Hussayen had done something illegal, but he observed that their entire case was built around “twisting facts to appear suspicious and incriminating.” 22
University of Idaho law professor Elizabeth Brandt commented on the lack of “smoking gun” evidence that would have proved Al-Hussayen guilty: “Half of me hoped that there would be a smoking gun that would justify the prosecution. I just thought, ‘There's got to be something.’ Otherwise it was a witch-hunt. That's what it looked like to me.” 23
The comments of the jurors, Professors Dickinson and Brandt, and former CIA division chief Frank Anderson indicates that in the absence of any actual evidence that Al-Hussayen was guilty of any crime, the prosecution’s intention was to present the jury with a large number of documents and witnesses in the hope the sheer volume of the alleged “evidence” would convince the jurors he must be guilty of something. After all, why would the government intensely investigate a person for two years and then prosecute him if he hadn’t committed a crime? Professor Brandt may have hit the nail on the head by characterizing Al-Hussayen’s prosecution as a “witch-hunt.”
The government had the option of re-trying Al-Hussayen on the eight charges the jury didn’t agree to a verdict on. However on June 30th the U.S. Attorney for Idaho, Tom Moss, announced an agreement had been reached with Al-Hussayen: In exchange for him dropping his appeal of the April 25, 2003 deportation order, the government would drop the eight undecided counts.
Although the agreement allowed Al-Hussayen to be released from 17 months of imprisonment and return to Saudi Arabia so he could be reunited with his family, it casts a cloud on his ability to ever re-enter the U.S. On July 21, 2004, Al-Hussayen was taken from the Canyon County, Idaho jail and put on a plane bound for Saudi Arabia. 24
Sami Omar Al-Hussayen reunited with his three sons at
the airport in Riyadh, Saudi Arabia. (Photo by David Nevin)
One bright spot is that Al-Hussayen’s Ph.D. advisor, Professor Dickinson, expressed his willingness to work with Hussayen after his return to Saudi Arabia, so he can complete his graduate studies and be awarded his doctorate in computer science from the University of Idaho. Al-Hussayen will be teaching at a Riyadh technical university while he finishes his graduate studies. 25
After announcement of the deal allowing Al-Hussayen to return to Saudi Arabia, The Idaho Statesman published an editorial about his case on July 1, 2004. It expressed the opinion that while his release after 17 months of captivity, and the reuniting of his family were reasons for rejoicing, “Everything else connected with this case is an outrage.” 26 That is an apropos description of what Sami Omar Al-Hussayen and his family was subjected to. Particularly since it is now apparent that if he wasn’t a talented and compassionate Muslim, the federal government wouldn’t have selected him for investigation and prosecution.
Al-Hussayen was fortunate that as a Saudi Arabian national, that country’s government paid for him to have first class legal representation. It was only his lawyers’ ability to expose to the jurors that the government had trumped up the charges against him that saved Al-Hussayen from being wrongly convicted as a terrorist and condemned to spend decades in prison.
1 18 U.S.C. 2339A(a) (“material support”), and (b) (“expert advice or assistance.’)
2 A federal judge in Los Angeles found this provision of the Patriot Act to be unconstitutionally vague, and as this article is written the government's appeal of that ruling is being considered by the 9th Circuit Court of Appeals.
3 Acquittal in Internet Terrorism Case is a Defeat for Patriot Act, Richard B Schmitt (staff), Los Angeles Times, June 11, 2004, Nation Section.
4 Feds Drop Final Charges Against Al-Hussayen, Gregory Hahn (staff), The Idaho Statesman, July 1, 2004.
5 Saudi Student’s Trial Opens in Idaho, Susan Schmidt (staff), Washington Post, April 15, 2004, p. A5.
8 Feds Drop Final Charges Against Al-Hussayen, Gregory Hahn (staff), The Idaho Statesman, July 1, 2004.
9 Feds Will Decide Soon On Al-Hussayen Retrial, Patrick Orr (staff), The Idaho Statesman, June 24, 2004.
10 Saudi Student’s Trial Opens in Idaho, supra.
11 Acquittal in Internet Terrorism Case is a Defeat for Patriot Act, supra.
13 Al-Hussayen Defense Rests, Case To Jury Next Week, Scott Logan, KBCI-TV, May 26, 2004.
14 Acquittal in Internet Terrorism Case is a Defeat for Patriot Act, supra.
15 Six Weeks of Testimony Fail To Sway Jury On Terror Charges, Staff, The Idaho Statesman, June 11, 2004.
21 Acquittal in Internet Terrorism Case is a Defeat for Patriot Act, supra.
22 John Dickinson: Visits with Al-Hussayen Open Eyes to the Twisting of Facts, Staff, The Idaho Statesman, June 25, 2004.
23 Al-Hussayen trial raises varied issues, concerns, Staff, The Idaho Statesman, June 11, 2004.
24 Al-Hussayen Deported To Saudi Arabia, The Idaho Statesman, July 21, 2004.
25 Al-Hussayen Goes Home To Saudi Arabia, The Idaho Statesman, July 24, 2004.
26 Our View: Al-Hussayen Learns Lesson About Justice, Editorial, The Idaho Statesman, July 1, 2004.