A View from the CT Foxhole: An Interview with Zainab N. Ahmad, Asst. U.S. Attorney
December 15, 2015
Zainab Ahmad is an Assistant United States Attorney in the Eastern District of New York, Criminal Division. She is the Deputy Chief of the National Security & Cybercrime Section. Earlier this year, she prosecuted Abid Naseer, a Pakistani al-Qa`ida operative who was convicted of plotting an attack on a shopping center in the United Kingdom and sentenced in November to 40 years in prison. She has prosecuted several other terrorism cases including US v. Babafemi, where a Nigerian citizen was convicted of providing material support to al-Qa`ida in the Arabian Peninsula at the direction of Anwar al-Awlaki. The current cases she is prosecuting relate to al-Qa`ida and the Islamic State and include Muhanad al-Farekh, an American the government alleges provided material support to al-Qa`ida in the Afghanistan-Pakistan border region.
CTC: Earlier this year, in one of the highest-profile terrorism cases in the United States, you prosecuted Abid Naseer, a Pakistani al-Qa`ida recruit who was the ringleader in the United Kingdom of a plot to launch a bomb attack on a shopping center in Manchester in April 2009 that was thwarted days before it was set to go into motion. He was convicted of the conspiracy by a jury in federal court here in Brooklyn in March. Why was he was prosecuted in the United States rather than the United Kingdom?
Ahmad: The short answer is that the American justice system contains legal and evidentiary advantages that rendered a conviction more readily attainable in the United States. It was also a result of what evidence was available at particular points in time. When the Greater Manchester police (GMP) arrested Naseer in April 2009, their evidence consisted principally of coded emails to an individual identified only as being located in Pakistan. The code included references to weddings, marriages, and girls. These references, which had commonly been used by al-Qa`ida to discuss attacks, led the GMP to suspect that there was an attack being planned for Easter weekend in the UK. The GMP, who had only begun the investigation a few weeks prior, decided that while the case had not yet developed—from an evidentiary perspective—to the point they might have liked, they had to make arrests rather than risk the high potential for an attack. Disruption, understandably, had to be the priority.The upshot was the Crown Prosecution Service (the UK equivalent of our office) ultimately made the decision that there was not enough evidence to bring charges against any of those arrested.
Fast forward to September 2009: We, here in the Eastern District of New York, along with the FBI, started to investigate a plot to bomb the New York City subway in which one of the suspects, Najibullah Zazi, a Queens resident of Afghan descent, was emailing the same address in Pakistan that Abid Naseer had been communicating with about weddings and girls. Zazi was eventually arrested and agreed to cooperate, meaning to tell the government everything he knew about al-Qa`ida and its operations and to testify against others if required, in exchange for some leniency at sentencing. When Zazi started cooperating, he told us this email address belonged to a courier who reported to the then-head of al-Qa`ida’s external operations, Saleh al-Somali, also known as Abdul Hafeez. He also told us that he himself had been instructed by al-Qa`ida to use the word marriage as a code for a bombing attack. All of a sudden, the case against Naseer looked very different.
It later turned out that the same courier who reported to Saleh al-Somali was also in touch with a third cell in Norway that was plotting an attack on a newspaper in Copenhagen. Although we could have made Zazi available to testify in the UK, we collectively came to the decision with our European partners that we were best placed to prosecute the entire three-pronged conspiracy here in the Eastern District of New York, especially as we had indicted the al-Qa`ida masterminds who were still at large, such as Adnan el-Shukrijumah. This is why we sought to extradite Naseer to the United States. Later, even more evidence emerged as a result of the raid on Usama bin Ladin’s compound in Abbottabad in May 2011, which demonstrated Naseer’s plot was part of a larger al-Qa`ida conspiracy. The documents and correspondence recovered from bin Ladin’s compound revealed reports up the leadership chain—ultimately all the way to bin Ladin himself—about Saleh al-Somali and al-Qa`ida’s external operations department planning the attacks at issue. The reports included specific reference to the planned attacks in New York, Britain, and Copenhagen, and made specific allusions to Naseer.
CTC: What were the challenges in introducing Abbottabad evidence at trial?
Ahmad: Introducing that evidence required a lot of coordination with the various stakeholders. The FBI, as came out at trial, had embedded an agent with the Department of Defense team that was in Afghanistan for the raid. That meant that from the moment the evidence recovered from bin Ladin’s compound arrived at the U.S. base in Afghanistan, it was already being handled and processed in such a way for it to be available for use in criminal prosecutions. It was the FBI who took custody of it, catalogued and vouchered it, transported it to the United States, and managed the exploitation of those materials. All of this ensured that a proper chain of custody was maintained and hence that the evidence would be available for use in criminal proceedings. So the challenges were less than you might imagine because of the FBI’s foresight.
The Abbottabad evidence has also been used by the German prosecution service in a terrorism trial there.[a] I think the materials will continue to be useful from a prosecutorial point of view as long as the al-Qa`ida figures who authored the correspondence or are mentioned in it are still active.
CTC: What strategies can be used to make a jury understand the complexities of a case like Abid Naseer’s?
Ahmad: In every case, the prosecution’s challenge at trial is to persuade the jury that the evidence proves the defendant’s guilt. Particularly in complex cases like Naseer’s, you need to be sure to make your case as clearly and directly as possible. For prosecutors, jury addresses are always a very important part of any trial because they give you the opportunity to pull all the evidence together and present to the jury your view on what inferences should be drawn from that evidence.
In “extra-territorial” cases, where the majority of plotting and activity is happening overseas, you end up introducing a Brooklyn jury to all sorts of unfamiliar names and places, and all sorts of particularized details about the hierarchy and structure of groups, like al-Qa`ida, whose internal workings they are generally not familiar with. The prosecution’s task in such cases is to avoid overwhelming the jury with those facts. You have to simplify the narrative and keep it focused as much as possible on the alleged actions of the person standing trial. Decisions about the order in which to introduce evidence, the structure of cooperating witnesses’ testimony, and the use of expert witnesses can be crucial here. But sometimes it’s inevitable you will be drawn down tangents. In the Naseer case, for example, the existence of coded emails necessitated our spending a significant amount of time decoding references to weddings and girls, which in turn led to lengthy exchanges on the defendant’s love life, or lack thereof.
CTC: Al-Qa`ida has been degraded in the tribal areas of Pakistan where Abid Naseer was recruited for his plot against the UK, but there is mounting concern the group is rebuilding in Syria. What did you learn about al-Qa`ida priorities from the Naseer case?
Ahmad: The lessons we’ve learned from the Abid Naseer case and from the Bryant Neal Vinas and Najibullah Zazi cases, which we also handled in the Eastern District, is that al-Qa`ida prioritized the activities of the external operations directorate above all others. Attacking the United States and Europe was their principal goal, and they were constantly looking for creative ways to achieve it. Zazi and his co-conspirators traveled to Pakistan in order to train and fight on behalf of jihadist groups in Afghanistan who were attacking U.S. forces; al-Qa`ida convinced them that they could much better support the jihadist cause by conducting an operation in the United States, because attacking Americans in their homeland was the best way to inflict pain and devastation on the country. Similarly, Bryant Vinas also traveled from New York to Pakistan in order to take up arms against U.S. forces in Afghanistan, but was persuaded by al-Qa`ida that an attack within the United States was the surest way to maximize harm to America. He ultimately worked with the external operations group to develop a plan to attack the Long Island Railroad.
In the Naseer case, the evidence presented at trial showed that al-Qa`ida was able to go one step further: to recruit individuals within Pakistan and equip them to infiltrate a Western nation in order to conduct an attack there. The recruits obtained student visas, under false pretenses, to study in the UK; as soon as they arrived in Britain, they each successively dropped out of the courses they had enrolled in.
The evidence at trial showed that Naseer dropped out of Liverpool John Moores University only three days after his arrival, despite the fact that he’d paid in full through the whole semester. Using this infiltration method enabled al-Qa`ida to not simply have to rely on Westerners who took the initiative to travel to Pakistan, but instead to be able to get foreign fighters into the West, and thereby to greatly expand the number of its operatives who were able to conduct attacks in the West.
CTC: What shifts are you seeing with regard to the prosecutions of terrorism cases?
Ahmad: In answering this question it’s useful to make a distinction between those we prosecute who are present in the United States and those we prosecute who are based overseas but targeting the United States. While the latter category has remained generally stable in terms of number of prosecutions, what you’ve seen this year is a large uptick in the number of arrests and prosecutions of individuals present in the United States either inspired or encouraged by the Islamic State to carry out attacks here. In the Eastern District of New York we’ve charged 11 individuals in just the past year with conspiring to provide material support to a terrorist group, and if you compare that arrest statistic to all previous years you will note a significant increase. [b] We’re seeing individuals responding to ISIL’s [Ed.: also known as the Islamic State] call to take up arms against government officials, police, and the military, among other targets. It all suggests the propaganda disseminated by the Islamic State is resonating with its intended audience.
Of course, the growth and success of English-language jihadi propaganda didn’t happen overnight. It was prolifically produced by al-Qa`ida’s affiliate in Yemen, al-Qa`ida in the Arabian Peninsula or AQAP, and the American terrorist cleric Anwar al-Awlaki. I recently led the prosecution of Lawal Olaniyi Babafemi, a Nigerian man who worked on the group’s Inspire magazine, published online in English. Babafemi pleaded guilty to conspiring to provide and providing material support to AQAP and was sentenced to 22 years imprisonment in August of this year. That investigation and prosecution revealed that English-language propaganda was a priority for AQAP and particularly for the now-deceased al-Awlaki. He taught recruits that AQAP’s English-language media operations were the most important thing the group did other than orchestrating violent attacks, because the media expanded the reach of AQAP’s destruction by inspiring and equipping people to carry out attacks on the group’s behalf wherever they were located, without ever having to get on a plane and travel to Yemen to receive training and tasking.
CTC: During the summer, FBI Director James Comey sounded the alarm about the Islamic State-inspired threat to the United States. Has this created an impetus to make arrests more quickly?
Ahmad: The pace of law enforcement is always going to match the pace of the threat. Arrests of individuals who are inspired by ISIL to commit acts of violence have accelerated because of a quickening in the way that the threats are progressing. We have seen in various instances young people becoming radicalized very quickly and it can be difficult to predict the moment they are going to transition their radical thought into radical action. Overall, this is one of many consequences of the shift in the nature of the terrorist threat away from centrally directed activity. There is less predictability and much less warning when you have one person deliberating whether to go out onto the street and stab a police officer as compared to when you have a group of individuals planning the kind of complex plots al-Qa`ida was putting together in years gone by.
CTC: How has the “going dark” phenomenon created challenges in terrorism investigations in New York?
Ahmad: It’s creating a unique problem in our nation’s history: there are “lockboxes” that law enforcement has the lawful authority to open, but not the physical ability to open. It’s not just terrorism cases that may be negatively affected. If a teenager goes missing from her bed in the middle of the night and leaves her phone on the bedside table, the “going dark” phenomenon means that depending on the phone, the provider, and the circumstances, we might be completely unable to find out what’s inside it—despite the fact that most parents will tell you that the best evidence of what their teenage child is up to will be contained in his or her phone. Even when you meet the legal standards to obtain a court order instructing the service provider to unlock the phone, the service provider can say “because we’ve designed this system so we can’t access it, we can’t actually comply with this court order.” This is a new challenge for law enforcement agencies. The limits being placed on the FBI’s lawful ability to monitor communications have the potential to have a particularly strong impact on terrorism investigations; because the primary goal of such investigations is to prevent attacks, they rely much more on electronic monitoring and wiretaps than other criminal investigations.
CTC: How can terrorism prosecutions serve to dissuade Americans from traveling to join the Islamic State?
Ahmad: We hope they have a deterrent effect by making clear the severe consequences that await such actions. In addition, many defendants charged with terrorism offenses agree to cooperate, and their providing us with all relevant information about their crimes significantly expands the body of knowledge that our government has regarding terrorist groups. For example, the cooperation of Najibullah Zazi, his co-conspirator Zarein Ahmedzay, and Bryant Neal Vinas provided the U.S. government with a treasure trove of intelligence regarding al-Qa`ida’s activities, whereabouts, and hierarchy. ISIL prosecutions have the potential to yield the same valuable intelligence. In addition, the more publicly available information we develop about the degree of dissatisfaction and disappointment many individuals who have traveled to join ISIL in Iraq and Syria feel with the organization, the more people will be dissuaded from joining the group.
CTC: Abid Naseer was presumably surprised when he found out that the prosecutor in his trial was an American woman of Muslim faith whose parents came to the United States from Pakistan. What made you decide to embark on your career path?
Ahmad: There were several factors that went into my decisions (many of which surprised those who knew me well) to go to law school, to work in criminal law, and to eventually become a prosecutor working on terrorism cases—it’s been an unexpected but incredibly rewarding career path for me. In some ways, the primary relevance of my ethnic background to the work I do is its irrelevance. By that I mean that anyone who knows the broader American-Muslim community knows that it rejects the distorted version of Islam that terrorist groups use to justify acts of mass violence. And so it should not be surprising to find members of that community participating in counterterrorism efforts, as you do across many different federal agencies; I’m not unique. It’s in keeping with broader values and patriotism of the American-Muslim community. Many American-Muslims feel that it’s their own culture and their own community that are being hijacked, which makes it a particularly important goal for them to hold accountable the perpetrators of terrorism.
CTC: How can prosecutors and law enforcement involved in terrorism cases win trust from the Muslim community?
Ahmad: I think the best way for prosecutors to win trust from all communities, including the Muslim community, is to do their job fairly, with an open mind, and with integrity, throughout every stage of the criminal justice process. As prosecutors we are taught over and over that our principal aim is to seek justice, not to achieve any particular subsidiary goal in any particular case. Prosecutors should always be guided by the evidence in decisions related to bail, detention, admission of statements, and what sentences we seek, rather than always seeking the maximum or the most punitive course.
CTC: Many commentators have spoken of the need for “off-ramps” for impressionable youth being brainwashed by radical ideologies. There is a pilot federal program in Minnesota to deepen the engagement between law enforcement agencies and the community, which creates the possibility of off-ramps through early warnings of radicalization. From where you sit as a prosecutor, what can you do to rehabilitate youth being led astray?
Ahmad: Pilot programs like the one in Minnesota certainly show a lot of promise. As I’ve said, as a prosecutor your primary goal is always to see that justice is done in a particular case. Achievement of that goal can take a variety of forms and I don’t think there is any legal tool that is not appropriate to deploy in this context. In all federal criminal cases, the levying of charges does not end the discussion. Efforts can be made to achieve rehabilitation or take into account specific circumstances like youth or vulnerability in fashioning the appropriate resolution to the case. Furthermore, there are legal protections in place for juveniles or individuals whose mental capacity is in question.
CTC: Will the Department of Justice and FBI be able to sustain their current intensity of focus on terrorism cases?
Ahmad: I have not in my professional career seen any threat that was not adequately addressed with the proper amount of resources by the Department of Justice, the FBI, and the intelligence community. So I have the utmost confidence that the focus will be sustained.
CTC: What has been the value of criminal prosecutions in U.S. counterterrorism efforts?
Ahmad: I believe criminal terrorism prosecutions have made the country safer by disrupting threats and producing valuable intelligence about the nature of the terrorist threats we face. Obviously, the U.S. government’s approach to combating terrorism is multifaceted and is the responsibility of many agencies beyond just the Department of Justice. But it’s important to keep in mind that there are many situations where criminal prosecution is the only way to neutralize a terrorist threat, and hence a very important wrench in the U.S. government’s counterterrorism tool kit. There are many people whom we’ve investigated and prosecuted who would still be at large today otherwise. Naseer, for example, had he not been convicted in U.S. court, would be living freely in the West, because he was able to defeat the UK government’s efforts to deport him to Pakistan. In addition, the exceptionally valuable intelligence gained from the debriefings of cooperating defendants such as Zazi and Vinas would likely not have been attainable were it not for the negotiated plea agreements made possible by the federal criminal justice system. The success we’ve had in terrorism prosecutions is a testament to the quality of the work and workers involved across the Department of Justice and law enforcement agencies.
[a] Abbottabad evidence was introduced in the Dusseldorf trial of Abdeladim el-K and three others who were convicted in November 2014 of being members of or supporting al-Qa`ida. See Paul Cruickshank, Tim Lister, and Nic Robertson, “New al Qaeda document sheds light on Europe, US attack plans,” CNN, March 20, 2013; Matthias Inverardi, German court jails four men in al Qaeda cell for planning attack,” Reuters, November 13, 2014.
[b] The defendants charged with Islamic State-related crimes in the Eastern District of New York in the past year include Abdurasul Juraboev, Akhror Saidakhmetov, Abror Habibov, Dilkhayot Kasimov, Akmal Zakirov, Munther Saleh, Fareed Mumuni, Noelle Velentzas, Asia Siddiqui, Nathaniel Pugh, and Ali Saleh. The defendants are presumed innocent unless and until proven guilty.