Court Watch #24: Double Jeopardy For Terrorism?

Plus: A Way Too Honest Govt Snitch, Pastor skips Matthew 21:12-13, and the DoD Leaker's Search Warrants

Photo by Chris Kursikowski on Unsplash

Welcome to Court Watch #24. The Eastern District of Virginia is at it again – prosecuting novel national security cases. In this case, one that could have implicated the double jeopardy rights Americans know – or think they know they have. However, two new guilty pleas may mean that the constitutional question never gets litigated. 

Now back to the Eastern District of Virginia.

In 2009, five young men – Waqar Hussain Khan, Ahmed Minni, Ramy Zamzam, Aman Yemer, and Umar Farooqi – from Virginia traveled to Pakistan with the intention to go further north to Afghanistan and join a foreign terrorist organization. At the time, a top law enforcement official described a video Zamzam left behind that attempted to justify his reasons, as “chilling”’ and filled with violent images. In the farewell video, images of U.S. forces plays and Zamzam allegedly says, “When Muslim lands are invaded, when Muslim children are terrorized, when Muslim women are raped, when our brothers and sisters are attacked and killed,... jihad becomes, by the consensus of the scholars ..., an individual obligation ... to defend his brothers and sisters and give them victory.” The case made national and international news, with The New York Times’ headline inquiring whether the ‘New Incidents Test Immunity to Terrorism on U.S. Soil.’ This was all before hundreds of Americans joined the Islamic State so a different time indeed for the terrorism beat. 

The 5 men were quickly arrested in Pakistan, tried there, convicted and sentenced to ten years in prison. Fast forward to 2020, having served their sentence, the Virginia men were released from that foreign jail and quickly alerted by the Department of Justice that it had unsealed a more than decade-old criminal charge for material support of terrorism. They were returned to the U.S. to face charges. It was one of the few cases in U.S. history where individuals have been charged, convicted and served their time in a foreign prison for crimes overseas and then faced U.S. charges for the same conduct, and brought to the United States for further or as one passionate defense attorney (not connected to this case) argued to Court Watch –  “duplicative prosecution.” There are two other cases in such a posture – United States v. Trabelsi – he pled guilty in Belgium to crimes of terrorism only to be brought here 10 years later to face additional charges based on the same conduct. Another such case is United States v. Fawaz Ould Ahmed Ouid Ahemeid – a Mauritanian who was convicted in Mali and then brought to the United States District Court in the Eastern District of New York. He was sentenced to life in Mail and faces prosecution in the United States for similar actions. 

Trabelsi and Ahemeid – are both still fighting their cases. 

Which brings us to some forthcoming guilty pleas (and a Court Watch scoop): According to the court schedule in the Eastern District of Virginia, two of the ‘DC Five Guys’, Ramy Zamzam and Ahmed Minni, will plead guilty to the federal charges in the coming days. We asked national security prosecutors and terrorism-specializing defense attorneys about this unusual procedural history.  All agreed this may very well be the first time Americans have served time overseas for terrorism offenses and then plead guilty in an American Court to crimes emanating from the same conduct actions. Also, we would note that the material support charge was filed on December 23, 2009, well before the Pakistani legal case advanced through its process and around the time U.S. authorities could have requested extradition. The guilty pleas in federal court come after some defense motions to dismiss the indictment on double jeopardy grounds failed.

Court Watch’s editor wrote about the so-called ‘Double Jeopardy’ cases of terrorism charges in a 2019 Lawfare piece. Given that a number of Americans are currently being detained in overseas jails for crimes related to ISIS, this may not be the last time we see people get charged and sentenced in two countries for the same crime.