To forgive and forget - or to punish and stand vigilant. That is the question about how to treat Americans who fought for the territorially defeated ISIS as they reenter society, presumably with battlefield experience, atrocities, and religious zealotry for bloodletting baked in.
In Texas, judges of the U.S. 5th Circuit Court of Appeals are grappling for an answer in a bizarre case in which a federal judge doled out what prosecutors say was a “substantively unreasonable” 18-month sentence for a returned ISIS recruiter and fighter who caused the battlefield death of at least one American. Prosecutors asked for at least 15 years.
Houston-based National Security Division prosecutors in the Southern District of Texas appealed the sentence after Reagan-appointed U.S. District Judge Lynn Hughes scoffed at their arguments, expressed a paternal sympathy for the convicted terrorist, and dismissed input from the dead victim’s bereaved mother (present in court) as “only her grief…sad but not cogent.”
The 18-month sentence was given to Asher Abid Khan, a 24-year-old University of Houston engineering student, after he pleaded guilty to one count of material support to ISIS for trying to join them with a high school friend in 2014, who was killed in action.
Transcripts of the sentencing hearing show the judge readily accepting Khan’s narrative that he quickly matured after he was tricked into returning in 2014, no longer believes the propaganda, and that he made one bad youthful mistake. Khan professed to having straightened out his life while free on bond that Judge Hughes granted Khan after his 2015 FBI arrest, despite opposition from prosecutors.
“Given the right breaks, most young people…if you can get their attention and give them some guidance, will quit doing that particular stupid thing,” Judge Hughes scolded prosecutors after they pointed out that Khan continued to proselytize online for ISIS after he returned to Texas.
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The judge dismissed all that.
“I don’t think we need to lock you up for 15 years, and I have been pleased with your progress while you have been under my care. You would be surprised that some people don’t take that as a hint.”
Judge Hughes offered a parting word of advice to Khan at the sentencing hearing:
“Work hard – fly right. Got it?”
“Yes, your honor,” Khan replied.
The appellate court’s decision holds potential national implications as more Americans return from ISIS; as many as 150 traveled overseas to join the group in Iraq and Syria while about 100 others were prosecuted after they were caught trying.
One obvious gamble inherent in the forgive and forget approach is addressed in studies of terrorist recidivism, including this one by The Soufan Group, which concludes that terrorism supporters often do not ‘age out’ of their motivations. Those caught leaving or returning might view an 18-month prison stint more as delayed gratification than as wait-just-a-minute deterrent.
U.S. Attorney Ryan K. Patrick of the Southern District of Texas, argued as much in a brief filed with the 5th Circuit Court of Appeals last month, that “The district court’s error was not harmless. Indeed, the magnitude of its error was enormous."
The U.S. Attorney’s office wants a new sentencing hearing.
“The sentence," the brief explained "… did not reflect the gravity of Khan’s conduct and would not sufficiently deter others from taking the first step along the path to radicalization. The sentence also results in unwarranted disparity with sentences of similarly situated defendants who have received far more serious sentences.”
A counter-brief by Khan and his attorney, David Adler, is expected sometime in the coming weeks.
The investigation and case against Khan
In 2014, the FBI learned the 19-year-old had joined Jizb ut-Tahrir, a U.S.-designated terror group, while living temporarily with an uncle in Australia. FBI investigators found Khan’s Facebook postings lavishing praise on ISIS and declaring his plan to join the group so he could “die a shahid.” Houston FBI also learned that Khan successfully recruited high school friend Sixto Ramiro Garcia at their Houston mosque. The two planned to meet in Turkey with a guide who would take them into Syria.
Khan and Garcia got on planes to meet in Turkey, Khan from Australia and Garcia from Houston. But a family ruse – that Khan’s mother was dying in a hospital -- tricked Khan into catching the next flight to Texas. Back in Texas, he wired his panicking abandoned friend Garcia $300 and successfully arranged for him to meet the ISIS guide. Garcia reportedly died in combat eight months later.
For more than a year, until his May 2015 arrest, Khan kept shilling online for ISIS and communicated with Garcia on the battlefield. It was only after the arrest, when Judge Hughes allowed him to be freed on bond, that Khan began claiming that he was a changed man.
Much of the fight over his sentencing boils down to whether he can be held to account for the death of Garcia.
Down-drafting a bereaved mother and U.S. terrorism law
After 9/11, U.S. prosecutors were given tough new anti-terrorism laws and sentences to punish and deter. The idea was to throw a bigger book at not only terrorist acts that directly cause death and destruction but also “material support” like money, weapons, and people that enable the violence.
The USA Patriot Act, for instance, increased the prison terms for two of the more common kinds of material support, 2339A and 2339B of 18 U.S.C., the latter bearing more prison time because it addresses support that results in death.
During last year’s sentencing hearing, Judge Hughes engaged prosecutors in verbal swordplay over a variety of legal definitions and precedents widely used to calculate punishment. One centered on whether 2339B – to which Khan pleaded guilty – should even be applied to Khan.
Judge Hughes was so disinclined to accept that Khan’s action led to the death of Garcia, despite a guilty plea to the contrary, that he dismissed a letter from Garcia’s mother blaming Khan for her son’s death because, “It bears only on her grief, and not anything that he did, or you did, or anybody else did. It’s sad, but not cogent.”
To which Assistant U.S. Attorney Alamdar Hamdani replied: “Your honor, she lost her son as a result of Mr. Khan’s actions, so I do see that. And she does mention that…it was because of Mr. Khan.”
Judge Hughes: “I know. And I am not taking a bereaved mother’s description of causation. What she said is, in essence, in two long pages, that she’s very sorry her boy is dead, if he is dead. He’s gone. Whatever it is.”
By refusing to take into account Khan’s role in recruiting and facilitating the delivery of Garcia to ISIS and Garcia’s eventual death, Judge Hughes felt himself free to reduce his sentence.
“He didn’t provide Garcia. He helped a friend,” Hughes said of Khan. “He (Khan) didn’t own him (Garcia). It wasn’t an asset that he had. So no, that is not provisioning.”
To no avail, prosecutors pointed out that Khan wired him $300 at a crucial decision point and arranged for Garcia to connect with the ISIS guide.
“You can’t pile everything that happens after he (Garcia) makes a really awful choice and say it adds to it. Communicating with him is not a crime. No. Those post-separation conversations do not say anything that is actionable.”
Helping a terrorist convict find himself
It was noteworthy that, during the hearing, Khan chose to frame his extremism as motivated solely by the atrocities of Syria’s Assad regime. Left unaddressed was the extent to which Khan committed to the ISIS brand of Islam, the scripture-based ideals that typically motivated wide-scale murder and enslavement in the caliphate and Europe.
“Your Honor, I want to make it unequivocally clear that I never condoned any act in which innocent civilians or people from this country died,” Khan insisted. “In fact, I despise such acts. My anger and hatred was towards the Syrian dictator.”
Khan’s narrative that he was only motivated to fight the Assad regime, if not completely unbelievable, certainly warranted deeper excavation. Is Khan still committed, biding his time until his 18 months are served?
Judge Hughes was willing to take that chance. He lectured Khan:
“Well, it looks to me like you have got potential. But in the ‘70s, people, not grownup people, but people, started saying they needed to find themselves. I never had any trouble with that. I am right there.”
What remains to be seen is whether the 5th Circuit Court is right there too.
Follow Todd Bensman on Twitter @BensmanTodd
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