It was freezing cold outside -- so cold that you wanted to wrap the stiff banner material around your hands for a little warmth. We -- members of Witness Against Torture -- were standing outside a Camden, New Jersey courthouse in early January to support the Duka brothers, three Albanian-American men who are now serving life sentences after being found guilty of conspiracy to commit terrorism and other charges in December 2008. Our banners said, "Innocent until proven Muslim" and "Islamophobia convicted the Duka brothers -- Free them now." Many believe the men are categorically innocent, and -- on that cold day in January -- they were finally getting a chance to present a motion for a retrial based on incompetent representation. Family and friends of the brothers crowded the courtroom, craning to glimpse their loved ones.
As the judge in the Duka brothers case considers the motion and prepares to deliver a ruling later this week, there's another trial from Camden's past that may offer a small ray of hope. More than 40 years ago, in the spring of 1973 -- in the same courthouse (in the same court room even) -- 28 women and men stood trial. They were the Camden 28, anti-Vietnam War activists and draft board raiders who were caught red-handed by the FBI because their group was infiltrated (and led) by an informant and agent provocateur on the FBI payroll. The group was eventually found not-guilty, and that verdict speaks to the power of solidarity, the importance of a culture of resistance, and how some people's willingness to take a stand even in the face of withering hate, vicious scapegoating and terrible consequences has a real impact.
Can the Duka brothers draw on the power of the Camden 28's witness? Can they be hopeful this week?
The Fort Dix Five
May 8, 2007 was the day that forever changed the Duka family. It was the day Dritan, Eljvir and Shain Duka were arrested by federal agents and became known as three of the Fort Dix Five. Over a year later -- on December 22, 2008 -- they were convicted of conspiracy charges in a case that has become one of the most well known post-9/11 "spoiled" terrorist plots. New Jersey governor and two-time presidential hopeful Chris Christie -- then an up-and-coming U.S. attorney -- built his career on it.
Yet, the whole plan was conceived and planned by two FBI paid informants and preemptively prosecuted by the legal system. Ultimately, these three Muslim men from a working-class family in Cherry Hill, New Jersey became victims of the post-9/11 counterterrorism frenzy that engulfed the United States.
It all started on a family vacation to the Poconos Mountains in Pennsylvania. While enjoying the variety of outdoor activities offered by this popular tourist destination, the Duka brothers -- along with their friend Mohamad Shnewer, who was also prosecuted as a member of the Fort Dix Five -- videotaped their activities to share with friends and family. Afterwards, they took the footage to a local Circuit City to make into DVDs. A Circuit City employee watched a section of the footage documenting their time at the shooting range and became concerned over the use of the words "Allahu akbar," or "God is great," a common saying in Muslim communities. However, reacting to the post-9/11 media-induced Islamophobia, the employee decided to turn the video over to the police, who contacted the FBI, which then opened an investigation.
While all the activities shown in the video -- shooting rifles at the range, riding horses, openly expressing one's faith in God -- are legal, it was still enough, in the post-9/11 era, for the FBI to target them through a newly adopted strategy of preemptive prosecution. This strategy seeks to target and prosecute individuals or organizations whose beliefs, ideology or religious affiliations raise security concerns for the government. It also allows the FBI to place agent provocateurs into groups with the goal of convincing its members to commit a crime. The fact that the Dukas were Muslim and had guns was therefore all the FBI needed to move forward with its plan.
In a recent investigative feature published by The Intercept, journalists Murtaza Hussain and Razan Ghalayini discuss in detail the FBI's efforts to entrap the Dukas, which took over a year and involved two paid informants. The first was Mahmoud Omar, an Egyptian immigrant, who the the FBI directed to befriend Shnewer, the young, impressionable friend of the Duka brothers.
After a while of talking mostly about politics and religion, the two -- at the instigation of Omar -- began discussing the possibility of attacking Fort Dix. The FBI recorded these conversations, one of which has Omar questioning Shnewer about other people participating. He specifically asked if the Duka brothers would be interested in such a plan. Shnewer responded by saying, "When I tell you I have people, that means I have people." Through the course of the investigation, Omar was relentless about wanting to involve the Duka brothers, asking Shnewer almost 200 times whether they would take part in the attack. However, through it all, there was never a recorded conversation with any of the brothers and no clear link could be made that they were even aware of the Fort Dix plot.
The FBI knew that there needed to be another participant in the plot for a conspiracy to take place. Legally, an individual cannot enter into a conspiracy with only a government informant. This was one of the reasons for Omar's unrelenting pressure to involve the Dukas. However, when unable to do so, Omar decided to approach Serdar Tatar, a friend of the young men who delivered pizzas to Fort Dix and had a map of the base, as well as a working knowledge of the area from being there so often for his job. Omar knew this and approached Tatar, explaining his plan and asking for the map.
After the conversation, Tatar contacted a police officer, who he knew, and told him about the conversation, saying it was a national security issue. The police officer contacted the FBI, but Tatar never heard from them. Omar kept bugging Tatar for the map, who then finally gave in. When the FBI approached Tatar, they interrogated him. Out of fear, Tatar denied giving him the map, which would ultimately lead to his participation in the crime. Interestingly enough, Tatar recorded all his conversations with Omar, but the FBI never wanted them -- throwing all kinds of doubts on the legitimacy of the conspiracy.
After months of frustration over the failed attempts to entrap the Duka brothers in a plan to attack Fort Dix, the FBI decided to introduce a second informant specifically to target the brothers. Offered $1,500 a week and a ticket out of deportation proceedings, Besnik Bakalli agreed to work his way into the group. Through his boisterous personality, he would try to get the Duka brothers on tape speaking about jihad and attacking the United States. The Dukas never took the bait.
Although they loved going to the shooting range in the Poconos, the Dukas didn't own any guns. Omar deceived the brothers into buying some. Dritan told Omar that he was interested in only the semi-automatic weapons because they are legal. When the time came to make the purchase, the FBI provided automatic weapons, which are illegal. The FBI raided the apartment, threw Dritan and Shain to the ground and arrested them. Eljvir was arrested later that day -- after returning from a trip to get ice cream with his wife and Dritan's children -- as were Shnewer and Tatar. It was at that point they became known as the Fort Dix Five.
However, many are now questioning the Duka brothers' knowledge and participation in a terrorist plot. In the over 300 hours of surveillance tapes, there is no conversation with them talking about an attack. Throughout the proceedings, two of the main participants both claimed that the Duka brothers knew nothing of a plot to attack Fort Dix. Mahmoud Omar, the FBI informant, publicly testified in court that the Dukas didn't know. Later on, in 2009, Shnewer reminded the judge in a handwritten note that the brothers were clueless of such a plot.
The Duka brothers are hoping for a new trial. All the evidence points to the need for a fresh consideration of these facts outside of the hothouse of hate and fear and Islamaphobia.
The Camden 28
The anti-Vietnam War group's aim was to destroy draft files -- the paper records that were used to compel young men into the military and the war in Indochina. They prepared a statement that read, in part: We "are trying with our lives to say 'no' to the madness we see perpetrated by our government in the name of the American people -- the madness of our Vietnam policy, of the arms race, of our neglected cities and inhuman prisons." After months of planning, scoping and practicing, they crept into the empty Camden Federal Building on August 22, 1971 and began pulling files out of drawers. They were just getting started when FBI agents rushed into the room and shouted "Freeze," but already the floor was covered in ripped files and they had filled 12 bags with paper.
Roughed up and hand-cuffed, rousted from various look-out points around the building, the men and women eventually found themselves in basement holding cells. "How did they know?" they asked one another and eventually noticed that one of their group members was missing. There had been an agent provocateur in their midst.
His name was Robert Hardy, and he had -- in many ways -- made the action happen. He taught the group how to scale ladders, cut glass, open window locks though the cut squares of glass. He scouted the site from the inside and shared critical intel. He provided ladders, glass cutters, gloves, crow bars, groceries and two-way radios. Hardy was friendly with some of the organizers, but when they approached him, he went to the FBI who jumped on the chance to infiltrate the group.
The Bureau desperately wanted this action. They suspected that the main organizers were also responsible for an audacious and embarrassing raid on an FBI office in Media, Pennsylvania that March, which exposed to the nation countless FBI dirty tricks and covert operations against peace and civil rights organizations. After an exhaustive search, they had not captured the perpetrators (and never did, as Betty Medsger explained so compellingly in her book "The Burglary: The Discovery of J. Edgar Hoover's Secret FBI"). The FBI's new strategy was to flush out the masterminds of the Media break-in by facilitating the Camden 28 break-in, catching them in the act, threatening them with decades in prison and then getting the activists to tell who was responsible for Media.
It didn't work. The informant switched sides when the FBI broke its promise to protect his friends. Hardy examined his conscience and didn't like what he saw. His son had died soon after the action, and his friends from the Camden 28 had stood with him and his family in their grief, even though he had betrayed them. Hardy agreed to testify for the defense instead of the prosecution and was damning in his explanation of how much of the action rested on his (and the FBI's shoulders).
Facing decades in prison for a crime they hadn't totally committed -- but wanted to -- the defendants added a radical offense to their defense. They asked the jury to refuse to convict them -- via jury nullification -- because they engaged in civil disobedience to protect life and resist the Vietnam War. Historian Howard Zinn educated the jury about the Vietnam War and the American history of civil disobedience. As lawyer David Kairys said in his closing, the defendants broke the law because "they saw a conflict between law and morality, between law and life. They made the same choices we would want German people to make when Jews were being killed, the same choices we would want Americans to make when black people were in slavery."
Four days later, the jury delivered "not guilty" verdicts for all the defendants and the courtroom erupted into a tearful rendition of "Amazing Grace."
1973 Versus 2008
The cases of the Camden 28 and the Fort Dix Five have their similarities. They share a courtroom and a central role for FBI informants and agent provocateurs (and of those instigators later trying to roll back the damage they helped wrought), along with the threat of long sentences. Furthermore, both cases were used as political opportunities for those in power -- Chris Christie's rise to governor and a two-time presidential hopeful, as well as J. Edgar Hoover's personal quest to find those responsible for the politically embarrassing Media break-in.
However, perhaps by looking at the differences in the two cases, more insight can be gained. Particularly, in the political utility of fear. The Camden 28 activists spoke of trying to peel off layers of fear in order to be free to act on behalf of the greater good. That was hard work, but they had a lot of support from a community -- and even a culture of resistance that was building at the time. They were people of privilege -- educated, white, from middle-class backgrounds (even though many had "dropped out" of mainstream society in order to dedicate themselves to the antiwar effort). The FBI and the prosecution tried hard to foment fear of radical activists in the lead-up to the trial, but they were so discredited and the defendants were so disarming that it really didn't work.
Four decades later, the Duka brothers found themselves up against not only the full power of the U.S. criminal justice system, but a culture of fermented fear and fabricated Islamophobia. They were alone. Unlike the Camden 28, there was no activist or religious community to support them. No prominent professors testified on their behalf. No political lawyers gave it their all to defend them from both the charges and the reflexive fear. There was no opportunity for a clever strategy around the jury because the Fort Dix Five jury was anonymous and under armed guard -- a signal to the men and women doing their civic duty that they were not peers with the men under indictment. The United States was at war, U.S. torture chambers and black sites were opened around the world. The prison at Guantanamo Bay was at full capacity. In the United States, Muslim bodies wore the word terrorism. Unfortunately, in this climate of fear, the Duka brothers didn't stand a chance. Fear found them guilty of a crime that they never heard of and that never happened.
Since September 11, 2001, Muslim and Arab communities in the United States have been continuously and aggressively infiltrated by intelligence agencies. According to The Intercept, "In the 1970s, when the Senate was investigating the FBI's notorious COINTELPRO domestic counterintelligence operations, the agency employed around 1,500 confidential informants. Today, that number has ballooned to 15,000 confidential informants."
The FBI and other entities have adopted a policy of investigating people and communities instead of crimes and wrongdoings. They have threatened, insinuated and profiled. They have double- and triple-crossed, they have sowed fear throughout those communities, and sought to make "middle America" instinctively afraid of Muslim and Arab people. And a few times a year, the newspapers are emblazoned with headlines about a big case where a "terror plot" is "broken" just in time, and "masterminds" are subjected to public excoriation, and shuttled off to prison for decades. A few people raise questions, look deeper, but the public need for scapegoats is met and everyone moves on -- except for the "masterminds" and their families, who are left, broken, alone and imprisoned.
Thankfully, there are groups like National Coalition to Protect Civil Freedoms, No Separate Justice and Witness Against Torture, who are working hard to make sure that the Duka brothers, and others preemptively prosecuted are not forgotten, not scapegoated, and receive real justice. We hope that this hard work will pay off in the case of the Duka brothers and another generation will have a chance to fill the Camden courtroom with the tearful, heartfelt verses of "Amazing Grace."