Youssef Megahed–The Question is Why?

Youssef Megahed, a permanent resident alien of the United States, was in immigration court in Miami last week. According to published reports, Megahed faced deportation based on terrorism charges stemming from much publicized arrest in South Carolina in 2007 along with his friend Ahmed Mohamed.

After a five-day hearing before Immigration Judge Kenneth Hurewitz, however, the deportation case against Mr. Megahed was terminated because Immigration and Customs Enforcement (ICE) failed to prove its case.

The question the American public should be asking is "Why?"

I don't know if Mr. Megahed is a really a terrorist. I don't know if, given the chance, he would have or will engage in conduct to harm the United States. But what I do know as a former federal immigration prosecutor is that even the publicly available information evidences that this case appears to have involved what could be characterized as a textbook case of terrorists in the making.

In fact, and on many levels, this case reminds me very much of the Imran Mandhai case in Miami that I was involved in a few years ago.

Both involved a group of young men who, on the surface, seemed to be law abiding residents of this country. Both, however, also involved young men who for a variety of reasons but for the specific reason that they disagree with the policies of this country in relation to the situation in the Middle East, made a decision to proceed into activities that, left unchecked, could have resulted in a lot of Americans being very unpleasantly affected.

Some of the similarities are eerie. Each of the cases involved the respective group going to gun ranges in search of firearms and firearms training. Both involved trips to various locations on what appeared to be innocuous trips but were later determined by authorities to be something far more nefarious. Both involved incriminating physical evidence that members in the group at first disavowed but later admitted were items related to planned terrorist activities. And, both initially involved adamant claims of innocence, outcries of injustice, and later admissions of guilt by all or some of the involved individuals.

The biggest difference in the two cases, however, was in how and when the groups were taken down by authorities.

In the Mandhai case, the FBI learned of the group's activities, was able to proactively employ electronic surveillance in investigating the group, was able to put a covert operative in play, and was ultimately able to provide me with hours of recordings that demonstrated many overt acts; to include a chilling statement from the then 19-year old Mandhai to co-conspirators that bombing a hospital "full of poor people" was absolutely within the bounds of Jihad and that also included and equally chilling excerpt of Mandhai trying to buy automatic weapons, shoulder fired rockets, and explosives on the streets of Miami.

Though they never did manage to buy any weapons, he and his friends never got beyond the preliminary planning stages, and the group never did manage to carry out even one attack against this country, Mandhai and his friend are in now in prison. And, when he gets out, he will be deported.

Imagine, however, what we would have been faced with in the Mandhai case if, rather than having his own words about their terrorist target scouting mission, he and his friends had been stopped by local authorities for suspicious behavior and all that was found was the weapons shopping list that they had prepared. Imagine also what would have been the case if rather than have Mandhai gleefully laughing on videotape as he touches and describes the weapons, he had been stopped next to the van containing these items, arrested on suspicion of a conspiracy to violate federal firearms laws, and claimed ignorance of the contents of the van. Most of all, imagine if the FBI had been left to go back and seek to prove that what the group was doing in going to gun ranges, in trying to buy weapons at such gun ranges, and in meeting together as a group, was in fact activity in preparation for a planned terrorist attack.

In the Megahed case, the U.S. government was lucky, and then again, not so lucky. As published reports seem to establish, the FBI learned of Youssef Megahed and Ahmed Mohamed only after they were stopped and arrested by local police authorities in South Carolina. At the time of the arrest, Megahed and Mohamed were in a car which contained explosives materials, were in possession of a computer that contained a bomb-making training video intended for Jihadists and posted on You Tube just days before. After their arrest and while seated in a police car, Megahed and Mohamed engaged in a conversation about the materials in the trunk that, to me, evidences that they were worried about what authorities would make of the materials.

Missing in the Megahed case, however, was the ability of the FBI to covertly investigate the group. In short, what they got on that fateful day in 2006 was literally it. On that day, the group was on specific notice that the authorities were on to them. No more activities, no more videos, no more gun ranges, no more overt acts of any kind. Not when you have been "outed." And certainly not when you are faced with the major impediment of being behind bars.

While the FBI did its best to go back in time and seek to explore the details of the group's activities, it was left to discover only that which, without the actors own words to tell us what they intended, can be and was characterized as something less than precursor activity for a terrorist act.

But was it? Like the Mandhai group, the trips to the gun ranges could, if the FBI and DHS had the conversations of the group on tape, have been clear evidence of overt acts related to terrorism. The preparation and publication of the bomb-making video tape, if electronic surveillance had been available of Mr. Megahed and his friends discussing it, viewing it and taking specific actions to distribute it, could also have been evidence of Megahed's involvement in terrorism. And, perhaps if the U.S. government had been able to make audio tapes of Megahed and Mohamed during their road trip from Florida north to S. Carolina and maybe, if they had not been arrested, points further north on I-95, we would all have heard a discussion of objectives, issues, plans, and even potential targets.

But, the federal government didn't and doesn't have any of that. All they had, at least from what they were allowed to use, was what was introduced at the criminal trial and immigration hearing.

What they had, however, was pretty good evidence of what was going on. Beyond all the physical evidence that they had as noted above, and beyond what the supplemental investigation revealed about Megahed's other associations, they had one major thing. Mr. Megahed was in a car which contained explosives materials, a computer that showed a bomb-making video for Jihadists, and Ahmed Mohamed who, by his own later confession, was involved in terrorism.

This brings to mind another case that I handled. One involving solely circumstantial evidence. One involving a terrorist "sleeper." The U.S. government had no usable evidence whatsoever of any overt act that showed that he was a terrorist. What we did have, though, was evidence of a series of business social encounters, business relationships, and business transactions, with one person after another, whom we absolutely knew were involved in terrorism; including some persons who have been publicly acknowledged as terrorists.

In cross-examination of this Respondent, I confronted him with each and every one of these matters. His answers? "I did not know." "I wasn't aware." "That is a surprise to me." And, indirectly, "I'm shocked."

Drawing an objection, of course, I asked this person a question very much like this one, "Sir, given that most of your social and business encounters since you arrived in this country were with persons involved in terrorism, can you please tell us, are you a terrorist or are you the most unlucky person in America?"

The same question might apply to Mr. Megahed.

Yet, many more questions should also be asked of ICE.

At the outset, I must disclose that I personally know most of the reported federal legal actors in this latest ICE drama. Judge Hurewitz, before he became a judge, worked for me. So did the ICE prosecutors, Gina Garrett-Jackson and Loren Coy.

The first question, if anybody at ICE would talk, should be why they did not call Yousef Megahed to testify on his own behalf? While I was not there and thus don't really know if Mr. Megahed testified, and while we won't know for sure until we get the judge's written decision, I have to presume that Mr. Megahed was not called to testify. I make that presumption from a very simple unanswered analytical inquiry—if he had been called, how would he have been able to explain away his statements in the police car in South Carolina, the assertions set forth in the FBI (search warrant) affidavit, and most importantly, his intimate friendship with confessed terrorist supporter Ahmed Mohamed?

I trained most if not all of the new federal immigration attorneys hired between 1992 and 2005 in my role as an INS and ICE National New Attorney Training program instructor on cross-examination techniques.

I also specifically trained all INS Miami SCLU attorneys in my role as the INS District Counsel in Miami.

As all of these attorneys were told, the first thing to be done in a case like this one is to call the Respondent, what aliens in deportation /removal proceedings are called, as a witness.

That would be especially so here since Mr. Megahed, having been acquitted of criminal charges related to the matter before the immigration court, had no 5th amendment privilege against self-incrimination. Mr. Megahed had no protection against self-incrimination because in the correct application of the Constitutional concept of "double-jeopardy," having once been acquitted by a jury of his peers, his answers, as long as they were truthful, could not serve as a basis for the government to ever criminally prosecute him for the same conduct again.

Had he been called to testify, Mr. Megahed, unless he is the best witness ever to take the stand, would have had a very hard time. Especially at the hands of somebody as skilled and experienced as Ms. Garrett-Jackson.

Imagine the impact of Mr. Megahed having to answer even this one question in relation to whether he knew about what was in the trunk of the car, "Isn't true that, when you were arrested in South Carolina, you spoke to Ahmed Mohamed in the police car and asked him 'Did you tell them about the benzene?'

If he said yes to this question, what impact would it have had on the Judge Hurewitz? How could Judge Hurewitz, who was once one of INS Miami District's most accomplished criminal alien prosecutors, or any other judge, have found that Mr. Megahed was not involved in terrorism with Ahmed Mohamed, the now confessed and convicted terrorist supporter?

If Megahed answered "no," and Ms. Garrett-Jackson later introduced the audio tapes of the conversation and a government certified translator to testify as to what was said, could any judge have found that Mr. Megahed was not perjuring himself and seeking to conceal his involvement in terrorism just like Mohamed initially did?

So, why wasn't Youssef Megahed called to testify?

A second question to be asked would be, why, as reported, was ICE limited to presenting only two witnesses? As my experience would tell me, and even if the inquiry were limited to only what has here-to-date been released publicly, there were many more officers and federal agents who participated in the government investigation of Mr. Megahed and Mr. Mohamed. Agents such as Daniel J. McTavish, who wrote the search warrant affidavit, agents from the Tampa JTTF who handled all of the background and extended investigation facets of the case, and the FBI Headquarters personnel who oversaw and directed the efforts of the involved FBI field offices.

So, why only two? And, of those two, why only one actual investigator and one forensics analyst?

I don't know the answers to these questions and I don't think that ICE Headquarters is likely to publicly provide them anytime soon, if ever. But what is clear, at least to me, is that somebody, somewhere, made the decision to limit what the Garrett-Jackson team could present.

This has to be the case because it would be almost impossible to believe that Judge Hurwitz, had additional factual witnesses been presented, would have prevented ICE from putting them on the stand or disallowed their testimony. And it would be absolutely impossible for me to believe that Gina Garrett-Jackson, having been allowed the opportunity, would have simply chosen not to present everything she had.

It is therefore a question that the public, in my opinion, should ask.

A third question that should be posed is, what did all the other intelligence agencies say about Mr. Megahed and Mr. Mohamed, and was Ms. Garrett-Jackson given the ability to see whatever they may have had and to ask whether it could be declassified for use in the hearing? While this would be a very sensitive question that would likely get absolutely no response at all, unless it was asked by a Member of Congress, standard operating procedures would tell me that such evidence exists and that Ms. Garrett-Jackson, left with discretion to use her talents, would have used the hard-won professional relationships and credibility that she has with such agencies to get their cooperation in the deportation/removal effort.

Yet the same experience that tells me that such would have been the case suggests to me that Ms. Garrett-Jackson was not allowed to proceed with such an effort. For if she had been, and knowing the level of respect she enjoys in the community, I strongly believe that the case presented to Judge Hurewitz would have been much stronger and would have likely included, at the very least, a few more witnesses on behalf of the US government.

A fourth, and probably the most vexing, set of related questions, are why did ICE agree to conditions of release and how did they do so as quickly as they did?

The decision to release Yousef Megahed and the manner in which it was determined is so far out of the realm of standard operating procedure for ICE that it has be considered as determinative evidence of the fact that something went awry in the management of the prosecution effort in the case.

While those who aren't familiar with the inner-workings of ICE and the litigation of national security matters might not understand much less agree with this, the U.S. government would not have initiated this case unless it was truly believed that the evidence that they had against Mr. Megahed proved that he was involved in terrorism.

That is the way in all national security cases. Especially since those in the government well know that these types of cases will get the most scrutiny, the most media coverage, and, the most public attention.

The belief that evidence proves that someone has engaged in terrorism is not based on whim. It is based on vetting, after vetting, after vetting of the evidence, of the law, of the procedure and of the proposed litigation strategy at many levels of the federal bureaucracy, across many agencies, and before many very senior officials.

Where the disconnect occurs is when one of three things happen. The first is when operational developments interfere. The second is when politics kick in. And the last is when incompetence and fear take control.

Operational developments. They interfere, in general, when the analysis of and proposed effort in a pending action is materially affected by a related action elsewhere. One example is where developments in the case in litigation result in a determination that certain information that could come out in the litigation might compromise other national security efforts elsewhere.

Politics. Anyone involved in or who follows the subject of immigration in this country knows that politics are always part and parcel of the debate regarding the immigration issue of the moment.

Anyone involved in the prosecution of immigration national security matters knows that politics are at the forefront of the determinations made by those with the authority to make them.

What most people don't realize, however, is that rather than encourage national security prosecutions, politics impede such efforts.

The simple reason for this is that those at the top of the Executive Branch are, for the most part, politicians. Some are elected and some are appointed. But most, if not all, of them look first, if they have to be involved, at what one of these efforts will mean for their political agenda, political party and political futures.

When the political factor is allowed to control, all bets are off. And, in most cases, you can rest assured that what could have been accomplished by taking the path with the shortest distance between point A and point B will now likely be a treacherous trek through an unknown and ever-changing universe.

Fear and incompetence. The most dangerous of the three. The most likely to be fatal.

Fear always surfaces when any one of the other two factors apply; when operational developments or politics jump in and change the game. And, fear always controls when incompetence is involved.

In the Megahed case, I will take a guess and suggest that operational factors alone did not likely materially change the course of the prosecution.

I will also guess that politics were not the only issue.

Instead, I will assert, as a guess based on my experience in such matters, that fear and incompetence resulting from some possible operational developments and absolutely resulting from political considerations, took hold.

How can I be so sure?

The Department of Homeland Security placed Megahed in removal proceedings because they believed he was involved in terrorism. When they made the decision to do that, they asserted that he was an alien described in the terrorism sections of the Immigration and Nationality Act (INA). Even when they lost before the Immigration Judge, DHS/ICE had the legal ability to keep Mr. Megahed in custody pending an appeal. In fact, and as standard operating procedure should dictate, IF they really believed that he was a terrorist, the DHS/ICE plan should have been to keep Mr. Megahed in custody until and if the courts ordered otherwise. Instead, ICE agreed, on their own volition, to release him.

ICE did not wait for a judge to tell them that they had to. ICE did not wait until the Board of Immigration Appeals (BIA), on appeal, agreed with the judge. Instead, ICE simply made the decision to release Mr. Megahed on their own volition.

ICE did so in record time, and as reported, to the surprise of even Mr. Megahed's lawyer.

What happened was pre-planned. In the world of federal immigration bureaucracy, such decisions are never made quickly. In fact, they are mostly never even made anywhere within the time that they should have been.

And being that the decision was what it was, I guarantee you that it was not made by Ms. Garrett-Jackson, by her boss, or even by his boss. It was made at a much higher level. In Washington, D.C. By a politician, for political reasons, and based on the agreement of lesser senior federal officials, by way of an exercise akin to the "Cowardly Lion before the Great Wizard of Oz," whose continued federal careers are, if nowhere else but in their minds, in jeopardy if they even remotely think to protest.

Rather than a sudden revelation that Mr. Megahed was in fact not involved in terrorism, the pressure of public opinion, the call of those who cannot or will not understand or agree that a deportation action is a separate animal from a criminal prosecution, the whims of those in political power, and the fear and incompetence of those who might be able to change the result, in my opinion, led to the decision to release Mr. Megahed.

For these reasons, and because the American people really deserved to find out if Mr. Megahed, as previously asserted by ICE, really poses a danger to our community, I suggest that all of us should be asking: If he really is a terrorist, how could the federal government have presented its case without requiring Youssef Megahed to tell us all what he was doing with now convicted terrorist Ahmed Mohammed in South Carolina in a car with explosives and a computer that contained a bomb-making video for terrorists? How, could DHS prosecute its case against Youssef Megahed with the testimony of only one investigative witness and one forensics witness? How could ICE have failed to obtain and present whatever information could be released for use as evidence by the other agencies with information on Youssef Megahed? And, how could the federal government say one minute that it had evidence to arrest, charge and deport Youssef Megahed on terrorist grounds, and in the next say, on their own volition, that he could be released from custody?

Most importantly, however, we should be asking–Why?

The bottom line is that ICE lost this case at the trial level.

One of the reasons may have been because of the good luck that Megahed and Mohamed were arrested before anything bad could happen, if that is what they intended to do, and the bad luck of the FBI in not, because of the situation, having being afforded the opportunity to pro-actively and specifically investigate their activities.

Yet, from the looks of it, albeit from the outside looking in only at what is publicly available, they did so once again because of the very same factors that have caused them to lose similar cases.

So, and for the moment, the final question in this case should be, what is ICE going to do now to fix this?

The final question for the war on terrorism as it relates to immigration enforcement is, however, what should be done with ICE?

Dan Vara was the INS District Counsel in Miami, Florida from 1990 until 2003. He was also the Chief Counsel, ICE, in Orlando , Florida from 2003 until 2006. As the highest ranking federal immigration attorney in the State of Florida , he was at the forefront of many significant immigration enforcement matters involving counterterrorism and counterintelligence. He was also an instructor on such matters at INS, ICE and FBI conferences. He is now in private practice in South Florida .

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For IPT News – August 25, 2009

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