Would Suicide-Bomb Suspect Have Won 'Prosecutorial Discretion'?

Posted: Feb 29, 2012 12:01 AM
Would Suicide-Bomb Suspect Have Won 'Prosecutorial Discretion'?

The would-be suicide bomber who allegedly tried to attack the U.S. Capitol two weeks ago is living proof the people who run our government are not serious about enforcing our immigration laws.

Amine El Khalifi was born in 1983. According to the Federal Bureau of Investigation, he had been in the United States illegally for more than a decade when he attended an inopportune meeting in the presence of someone the FBI would later describe as a "confidential human source."

This meeting convened in the same town in which the Pentagon is located and could not have been more than several miles from the Capitol itself.

"In or about January 2011, a confidential human source reported to the FBI that El Khalifi met with other individuals at a residence in Arlington, Va., on or about Jan. 11, 2011," said an affidavit that FBI Supervisory Special Agent Steven W. Hersem submitted on Feb. 17 to the U.S. District Court in Alexandria, Va.

"During this meeting, one individual produced what appeared to be an AK-47, two revolvers and ammunition," said Hersem.

"El Khalifi expressed agreement with a statement by this individual that the 'war on terrorism' was a 'war on Muslims,' and said that the group needed to be ready for war," said Hersem.

Who was this Khalifi, and what was he doing in the suburbs of Washington, D.C., in January 2011?

According to the FBI affidavit, El Khalifi came to the United States from North Africa -- as a teenage tourist.

"El Khalifi was born in Morocco and entered the United States on or about June 27, 1999, on a B2 Visa (authorizing tourism travel)," the FBI's Hersem told the federal court. "El Khalifi's visa expired in 1999, and he has been living in the United States illegally since that date. El Khalifi has never applied for citizenship."

When 19 young al-Qaida terrorists hijacked four planes on Sept. 11, 2001, and flew them into the World Trade Center towers, the Pentagon and a field near Shanksville, Pa., killing about 3,000 Americans, El Khalifi was an 18-year-old Moroccan illegal alien who had already been living in the United States for two years.

So far, virtually the only alleged facts the federal government has submitted to the federal court about what Khalifi did and where he went in the years before 2011 are that he entered the country as a "tourist" in 1999 and that had been here illegally ever since.

We do not know from the records so far submitted in the federal court whether Khalifi ever went to school in the United States, whether he ever worked in the United States, whether he ever paid taxes in the United States, whether he had a driver's license in Virginia or any other state, or whether he had ever been arrested or convicted for a prior crime in the United States.

Yet when President Barack Obama's Department of Justice announced on Feb. 17 that it had arrested El Khalifi, the headline on the department's press release said: "Virginia Man Accused of Attempting to Bomb U.S. Capitol in Suicide Attack"

"A 29-year-old man residing in Alexandria, Va., was arrested today for allegedly attempting to detonate a bomb in a suicide attack on the U.S. Capitol Building as part of what he intended to be a terrorist operation," said the first paragraph of the Obama administration's release.

What exactly made El Khalifi a "Virginia man"?

The third paragraph in the Justice Department press release began with these words: "Amine El Khalifi, an immigrant from Morocco."

What exactly made El Khalifi an "immigrant from Morrocco"? Didn't the FBI swear to the federal court he had entered the United States in 1999 on a visa "authorizing tourism travel" and that he had been here "illegally" since then?

To be fair, the same sentence in the Justice Department press release that called El Khalifi an "immigrant from Morrocco" went on to say that he "is illegally present in the United States."

But why did the Justice Department insist on calling an illegal alien -- who the Justice Department itself alleges wanted to bomb the U.S. Capitol -- a "Virginia man" and "an immigrant from Morroco"?

Perhaps because -- had things worked out differently -- the Obama administration's immigration enforcement policy would indeed have made El Khalifi, in effect, a "Virginia man" and an "immigrant from Morocco."

On June 17 of last year, Immigration and Customs Enforcement Director John Morton sent out a memo instructing ICE officials on the administration policy of "prosecutorial discretion" in dealing with illegal aliens.

"In basic terms, prosecutorial discretion is the authority of the agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual," said Morton.

Morton said this discretion "applies to a broad range of discretionary enforcement decisions" that ICE might take, including "deciding whom to stop, question or arrest for administrative violations."

When considering "an exercise of prosecutorial discretion," Morton said, ICE should consider such things as "the person's length of presence in the United States" and that "positive factors" include being "present in the United States since childhood."

Had Obama's ICE gotten to El Khalifi before the FBI learned from its "confidential human source" what El Khalifi was discussing with his friend in the Washington suburbs, it might have decided this would-be suicide bomber was just another "Virginia man" who had come to America as a minor and lived here peacefully for years.

Recommended Townhall Video