A judge on Friday ordered two African refugees to remain behind bars for their role in what police describe as a fake bomb found at Phoenix's airport, saying that even though the incident could have been a big misunderstanding, it also could have been a "dry run" for a terror attack.
U.S. District Magistrate Lawrence Anderson issued the ruling after a lengthy hearing that revealed new details in the case, including a video of one of the refugees going through security at Phoenix Sky Harbor International Airport.
Luwiza Daman, 51, Asa Shani, 34, and another man, Shullu Gorado, 25, have pleaded not guilty to a felony charge of causing what appeared to be an explosive device to go through a security checkpoint at the airport Aug. 5.
A different judge ordered Gorado to remain in custody last week.
Daman, Shani and Gorado are from war-torn Eritrea on the Red Sea in the Horn of Africa and spent years in refugee camps before getting asylum in the U.S. Only Gorado speaks English well, while Daman and Shani are relying on a translator to understand the complicated court proceedings in their native language, an African dialect known as Kunama.
Authorities say Daman had the suspicious item in her bag as she went through airport security intending to board a plane to Des Moines, Iowa. Police say Shani taped the items together and gave the package to Gorado, who gave it to Daman to take on the flight to Iowa.
The package turned out to be a container of a paste-like food similar to tahini, with a cellphone taped to it. But authorities say it looked just like an improvised explosive device when it went through an X-ray machine, adding that cellphones can be used to trigger bombs.
Investigators said the item suggested that the group could have been testing airport security.
In his ruling Friday, Anderson said the "fascinating and challenging" case presents the court with two possibilities.
"One, a significant injustice to individuals lawfully present in the United States as refugees because they allegedly misunderstood English," he said. "Or a knowing and intentional attempt by someone ... to attempt a dry run."
In deciding whether to release the refugees, Anderson said he considered the seriousness of the charge, the weight of the evidence presented, the background of the refugees and the danger they could pose to the community if released.
He said the evidence so far is not clear or convincing and that the refugees' background and other factors weighed in favor of their release. He added the government has failed to prove a motive to commit an act of terrorism.
But Anderson said that although the charged crime is nonviolent and doesn't directly involve a bomb, "it indirectly does as a dry run that could kill many, many people on a commercial aircraft, as we have seen in this country on 9/11."
The refugees' trial is set for Oct. 4. If convicted, they each face up to five years in prison and a $250,000 fine.
Prosecutor Joseph Koehler with the U.S. Attorney's Office played video surveillance from Sky Harbor that showed Daman going through security. He noted that when authorities pulled her bag aside, she buried her hands in her face, reached for the bag three times and then made a phone call. Those reactions are "consistent with guilt in knowledge," Koehler said.
Philip Seplow, Daman's attorney, said the only thing the video shows is a "befuddled woman" and that because there is no audio, no one can know the context of what Daman is shown doing.
"Luwiza came to the United States to leave a repressive regime behind to seek justice and be afforded all the rights of this country," Seplow said. "Why would she bite the hand that is offering her solace?
"She doesn't want to leave," he added. "I think Tom Petty said it best _ you don't have to live like a refugee."
Koehler also said there were too many inconsistencies in Shani's statements to FBI agents.
For instance, Koehler said Shani told investigators he taped the cellphone to the food for Daman to take to Iowa as a gift for his brother, who lives there. Shani told investigators his brother didn't have a cellphone and that he used tape on it because it was broken.
But agents looked through Shani's own cellphone, which had his brother's cellphone number saved in it. FBI agents also reported that the phone was in good working order, was turned on when it was found, and didn't need tape to hold it together.
Shani's attorney, Dennis Jones, argued that his client speaks very little English and tried to answer the FBI's questions in English as best he could before he became confused and asked for an interpreter
Jones said Shani could have meant that he taped the food to the phone because he didn't want it to become loose and break, but chose the wrong words from his limited English.
"It is fundamentally wrong to draw any inferences from his statements given the unreliability of this interview," Jones said.
Surafel Gebrtsadik, pastor at the United Methodist Church Maranatha Ethiopian Congregation in Phoenix, is a leader in the area's Eritrean community and attended Friday's hearing.
He said he believes that Daman, Gorado and Shani are innocent and should be released.
"If I think for a second there is some kind of terrorism plot, you don't see me here," said Gebrtsadik, who had offered the court to take Daman into his home if she had been released.
But Gebrtsadik said he understands why the judge ruled to have them held, saying it's "for all our safety" and could send a message to terrorists.
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