Did the Government Invent Terrorist Threats Out of Adel Daoud’s Term Paper?

I’m just now getting around to listening to the Mulligan hearing in Adel Daoud’s hearing at the 7th Circuit on Monday which the panel held because the hearing held the previous Wednesday had not been taped.

The hearing (as opposed to Judge Richard Posner’s long digression about why they were having the Mulligan) started with Judge Ilana Rovner focusing on whether a defendant caught by FISA could ever take a Franks challenge to a FISA warrant — basically, a claim that the government relied on false information in an affidavit supporting a warrant. Posner, too, seemed focused on this, asking Prosecutor William Ridgway whether a case (this case?) could be sustained even in the face of a Franks challenge. (Ridgway said it could, but of course he would say that, because the Circuit can only sustain a review here if it would be significant enough to exonerate Daoud.)

And all that took place against the background of Posner claiming, at least, that the ex parte hearing last week was held to benefit his client, which suggests (as does the request for more information from the government) that the Circuit may be more skeptical of the warrant than Posner let on last week (or perhaps Posner got more skeptical after the hearing).

Daoud’s attorney, Thomas Durkin, tried to bring it back to the larger issues raising questions in this case, including the fact that Dianne Feinstein had suggested Daoud had been caught using Section 702 of FISA.


But ultimately, Posner showed most interest when Durkin talked about Daoud’s mosque school term paper on Osama bin Laden.

Durkin: We do know and we did tell the judge this that this 18 year old kid had to do a term paper for — he went to the mosque school, and he had to do a term paper. He decided to do a term paper on Osama bin Laden. We know he had contacts, therefore, with Inspire magazine and reasons why the NSA may have picked him up. That could be just deliberate First Amendment Activity. Nothing more, nothing less. We don’t know that. We don’t know whether there’s something in that affidavit that says — we’ve tried to rule out all kinds of First Amendment activity and we can’t find anybody. We should be permitted to see that.

Posner: Are you trying to say the government investigated him because of school paper he wrote?

Durkin: I don’t know. It could be.

Posner: No, but that’s your suspicion, right?

Durkin: That is my suspicion.

As I explained before, the investigation into Daoud started on May 10, 2012 in response to an unsolicited referral that claimed Daoud had said he’d use the instructions in Inspire to launch an attack. But neither that claim nor a subsequent claim based on an undercover officer shows the language Daoud used. The one time the FBI quoted Daoud in its summary, the FBI seemed to overstate the tie between Inspire and Daoud’s plans to hurt the US.

Thus, the evidence may well support the claim that the FBI — and whoever referred Daoud in the first place — overstated what Daoud had actually said about Inspire. Which, if that’s what they used to get a FISA warrant (and it appears likely it is), ought to be a good basis to claim they lied to get that FISA warrant.

That may not be enough to sustain Sharon Coleman’s decision Daoud should get a review of the warrant (though I suppose it’s possible the 7th could just decide to throw out the warrant). Plus, even then you might have to prove that everything that came after — including the alleged threats to a FBI agent — was entrapment.

But it seems like the 7th Circuit may be fairly critical of what they saw in that FISA warrant.

12 replies
  1. bloopie2 says:

    “That may not be enough to sustain Sharon Coleman’s decision Daoud should get a review of the warrant (though I suppose it’s possible the 7th could just decide to throw out the warrant). Plus, even then you might have to prove that everything that came after — including the alleged threats to a FBI agent — was entrapment.”

    Right, but how much do WE care about Mr. Daoud, per se? Aren’t WE more interested in using him as a vehicle for taking one small step forward in the NSAFISA war, i.e., getting to see the warrant? After all, yesterday’s Eleventh Circuit decision on the police use of cell location data is seen as a “historic” “victory”, even though the poor defendant is still stuck with a 126 year jail sentence. (Note, he did participate in at least half a dozen armed robberies, and shot at someone at least once, so perhaps he’s not so “poor” after all.)

    O cynical me.

  2. john francis lee says:

    If this were the USA we could just look at the warrant.

    But this is the USSA, the United Security State of America, the totalitarian successor state to the USA.

    In the USSA the Government always wins in Kourt. Judges and the Department of inJustice cooperate to make sure that happens.

  3. scribe says:

    I didn’t get a chance to listen to the argument, so I don’t know whether it got to this point or not, but consider for a second the following hypothetical.

    It’s 60 some years ago and little Richie Posner is attending Hebrew school like all the other Jewish boys his age did and, for that matter still do, preparing for Bar Mitzvah. Richie’s school is a little more academically demanding in that the boys not only have to learn Scripture and the Hebrew to go along with it, but also have to look into the story of and write a term paper about some prominent person of the Jewish faith, discussing whether and how that person is exemplifying the tenets of the faith.

    Richie chooses, for some reason, a prominent organizer who just happens to be a Communist. (Supply a name – it doesn’t matter for the purposes of the hypothetical – just that he’s well known as both Jew and Communist. make him a Soviet, too, if you want.) The librarian (in those pre-internet days) helps Richie find the card catalog but not much more and, concerned and patriotic, tells her brother-in-law the FBI agent about Richie.

    Hoover’s minions go into full counterintelligence mode, tapping, black-bagging and tailing, and discover Richie is also the Dealer of Choice among his friends for illegal fireworks. Some of them have been pontificating on the desirability of blowing up the toilets at school. That they were full of baloney matters not….

    Richie gets busted for illegally trafficking in explosives and conspiracy to destroy public property and never gets to be a federal judge.

  4. schuck says:

    BREAKING: from the guardian linked above

    (see I read the twitters)

    Citing a summary critique of the programme sent to HTS directors by a former employee, Price reported that the HTS training scenarios “adapted COIN [counterinsurgency] for Afghanistan/Iraq” to domestic situations “in the USA where the local population was seen from the military perspective as threatening the established balance of power and influence, and challenging law and order.”

    One war-game, said Price, involved environmental activists protesting pollution from a coal-fired plant near Missouri, some of whom were members of the well-known environmental NGO Sierra Club. Participants were tasked to “identify those who were ‘problem-solvers’ and those who were ‘problem-causers,’ and the rest of the population whom would be the target of the information operations to move their Center of Gravity toward that set of viewpoints and values which was the ‘desired end-state’ of the military’s strategy.”

  5. bevin says:

    scribe’s is a timely reminder of the deep roots of this abuse of the justice system. Of course, before little Richie Posner there were many others, particularly in the south. But throughout US history the use of law and law enforcers to suppress minorities has been routine.
    It is no accident that there are so many incarcerated, and so many of the incarcerated are black or, like Leonard Peltier, radicals.

  6. Kat Capps says:

    I looked at a lot of Daoud’s online writings still available on yahoo answers. He was a very smart and well read 17 year old. The range of books he talked about reading or wanting to read was enormous. And he was internet savvy as well. I find it very plausible that he accessed the inspire website as a resource for a term paper. I did try to find a copy of his term paper but was unsuccessful.

    Because he used the internet to reach out and interact with people, and he seemed to want to engage and impress others (based on what I read), he would have been an easy target for FBI to entrap by appealing to his interests and intellect. Young, naive. Wanting to impress and be appreciated. He appeared to be trying to understand religion and responsibility. The FBI engaged him as a high school student, ages 17 & 18. He was really young and searching.

    I believe he was taken advantage of by manipulative adults to score a arrest.

  7. Kat Capps says:

    Here’s a little more context for what Daoud was doing online. For about the 18 months prior to his being arrested, he was a frequent participant in the Yahoo answers website. Basically, it look like he tried to answer as many questions as he could in order for his answers to be voted “best”. So he was kind of a “know it all kid” who was trying to impress by get his answers voted up as best in order to score points. So it look like he was doing crazy amounts of research in order to provide as many answers as possible. That’s another plausible reason, besides his interest in religion and Muslim culture, for him to visited the inspire website.

  8. Kat Capps says:

    The Gov says that they have evidence from Daoud’s email account beginning in Oct 2011. From the FBI’s criminal complaint:


    6. As further described below, beginning in or about October 2011,
    Daoud used an email account (“Daoud Account 1”), among other accounts, to
    obtain and distribute material, some of which he purported to author,
    relating to violent jihad1 and the killing of Americans.2 Also beginning in the
    same time period, Daoud used Daoud Account 1 as part of his efforts to
    encourage several other individuals to support violent jihad.

    7. In or about May 2012, two FBI online undercover employees
    (“OCEl” and “OCE2”) contacted Daoud in response to material Daoud posted
    online and thereafter exchanged several electronic communications with
    Daoud. During these communications, Daoud expressed an interest in
    engaging in violent jihad, either in the United States or overseas, referred to
    his ongoing efforts to recruit other individuals to engage in violent jihad, and
    mentioned that he had discussed plans for an attack with “trusted brothers.”

    8. As further described below, from late May to mid-June, 2012,
    Daoud sought guidance regarding whether to carry out a terrorist attack in
    the United States, relying principally on internet resources. Based on this
    research, Daoud, as he told OCE2, confirmed his belief in the propriety of
    killing Americans in a terrorist attack. Daoud then began seeking online
    resources regarding how to carry out an attack.


    Evidence from Daoud Account 1 Bearing on Daoud’s Intent to
    Engage in the Subject Offenses

    11. Between in or about October 2011 and May 2012, Daoud used
    Daoud Account 1,3 among other accounts, to obtain and distribute material,
    some of which he purported to author, relating to violent jihad and the killing
    of Americans. For example:
    a. On or about October 9, 2011, Daoud, using Daoud Account
    1, sent an email to himself (at Daoud Account 1) with “anwar al awlaki
    articles” along with jihadi-related photographs and pictures (e.g., titled
    “Jihad is our way,” “Taliban,” and “mujahideen”).4
    b. In or about December 2011, Daoud, using Daoud Account 1,
    emailed several individuals a lengthy powerpoint presentation titled “The Osama Bin Laden I Know,” which Daoud purportedly prepared for school.
    The presentation is a “book review” of Peter Bergen’s book (of the same title)
    and defends Bin Laden’s tactics. For example, Daoud writes, “Osama wasn’t
    crazy for wanting to destroy America. This superpower killed millions of
    c. On or about February 6, 2012, Daoud received an email to
    Daoud Account 1 regarding his registration to an online jihad-related
    internet forum.5
    d. On or about February 27, 2012, Daoud, using Daoud
    Account 1, sent an email in response to criticism of Israel, writing: “no. there
    is no difference between Israel and those countries who either help and
    support them or the countries that don’t say anything the United States and
    UK do things just as bad. They mutilate children, they rape women, the nuke
    innocent people, and they did this to over a million people and their history is
    full of it too. . . . may the leaders and supporters of all these evil nations go to
    the deepest pit of the Hell fire or if they are ignorant may Allah cure them
    from it.”
    e. On or about March 14, 2012, Daoud, using Daoud Account
    1, sent an email to Individual A, defending Anwar Al-Awlaki: “those people insulting awlaki can go kill themselves mashaAllah he is very knowledgable
    w. a decent character. inshaAllah6 hes accepted as a shaheed.7 people r quick
    to judge n insult including muslims. the truth is he was against america n
    becuz america is the superpower he is always going to be seen as wrong no
    matter wat he says or does.”
    f. On or about May 9, 2012, Daoud, using Daoud Account 1,
    sent himself (i.e., to Daoud Account 1) a link for Inspire magazines, issues one
    through nine.8
    12. Between in or about October 2011 and May 2012, Daoud also
    used Daoud Account 1 as part of his efforts to encourage others, including
    Individuals A, B, C, D, E, and F, to support violent jihad. For example:
    a. On or about October 13, 2011, Daoud, using Daoud Account
    1, sent an email to Individual B recommending that Individual B read “The
    Book of Jihad,”9 a copy of which was attached in the email.
    b. On or about October 18, 2011, Daoud, using Daoud Account
    1, received an email reflecting that Daoud had sent to Individual A, the video
    “The HereAfter by Imam Anwar Al-Awlaki.”10
    c. On or about April 25, 2012, Daoud, using Daoud Account 1
    sent an email explaining that “modern sufis are against JIHAD (like REAL
    JIHAD i.e. FIGHTING) and that was a bad start; and i think they believe in
    the concept of Jihad ul Nafs which is based on a fabricated if not very weak
    d. On or about May 17, 2012, Daoud, using Daoud Account 1,
    sent Individual C a video titled “Lessons Learned – By Mujahid Commander:
    Abu Mansoor al-Amriki.”
    e. On or about June 22, 2012, Daoud, using Daoud Account 1,
    sent an email to Individual D, writing: “this is aadel. Here you go buddy. your
    first book towards terrorism,” attaching “The Book of Jihad.”
    f. On or about June 30, 2012, Daoud, using Daoud Account 1,
    sent an email to Individual E with a link to the nine issues of Inspire
    magazine with instructions that Individual E should not let anybody else see
    Individual E reading the magazine.
    g. On or about July 29, 2012, Daoud, using Daoud Account 1,
    sent an email to Individual D, attaching Awlaki’s “44 Ways To Support
    Jihad” and writing that Individual D will “enjoy and benefit” from the

    Daoud Begins Communicating with two FBI Online Undercover

    13. On or about May 17, 2012, an FBI online undercover employee
    (“OCE1”) reached out to Daoud by sending a message to another account
    Daoud used to exchange electronic communications (“Daoud Account 2”).
    OCE1’s message complimented Daoud on the material he had posted online,
    which was associated with Daoud Account 2. Daoud responded and the two
    exchanged dozens of communications until on or about August 19, 2012. In
    summary, OCE1 purported to be a Saudi Arabia-based person who had been
    invited to and was deciding whether to engage in violent jihad in Yemen or
    Syria. OCE1 and Daoud exchanged several communications relating to
    violent jihad and Daoud’s intentions to engage in violent jihad. For example:
    a. On or about May 29, 2012, Daoud wrote that “even my
    sheikh11 in my masjid12 was talking to me about NOT talking about jihad.”
    Daoud continued: “sometimes [my sheikh] even mentions verses of jihad (from the Quran) and i almost think he going to call for it then he has
    something general like be a good example or something. lol man I will be the
    b. On or about June 3, 2012, OCE1 asked whether Daoud has
    “friends in America” who “support jihad too,” to which Daoud responded: “i
    know a few brothers who support jihad and im trying to ‘brainwash’ more
    brothers into supporting it.”
    c. On or about June 4, 2012, OCE1 asked whether Daoud had
    “ever talked about plans,” to which Daoud replied, “i did discuss some plans
    but with very trusted brothers.” Daoud also stated, “encouraging muslims to
    go for jihad is dawah.13 inspire magazine was started cuz a verse of the
    Quran where Allah says to inspire the believers.”
    d. On or about June 7, 2012, Daoud, using Daoud Account 1,
    sent an email to OCE1 with documents attached, including “The Book of
    14. Another FBI undercover employee (“OCE2”) sent a message to
    Daoud Account 1 on or about May 14, 2012, in response to a video Daoud had
    posted online, which listed the Daoud Account 1 as a point of contact. That
    same day, Daoud responded. The two then exchanged emails over the next
    few days, at which point Daoud directed OCE2 to communicate using Daoud Account 2, which continued until on or about September 12, 2012. In
    summary, OCE2 purported to be a 17 year-old, Australia-based person with a
    recently-developed interest in violent jihad. During their communications,
    Daoud recommended that OCE2 read Inspire magazine and sent OCE2 a
    website link to the publication, which OCE2 downloaded. Daoud
    characterized the magazine as “amazing” and remarked that he may use
    instructions from the magazine to carry out an attack.

    There is a lot of detail in the report, too much to put here. But it looks like emails were targeted from at least Oct 2011, based on mention by Daoud of “anwar al awlaki” among other things.

    Take a look at the original document here: http://www.investigativeproject.org/documents/case_docs/2045.pdf

    • emptywheel says:

      Make sure you link through to the prior post and the FBI document linked therein. It provides a much more honest narrative of the FBI’s interactions with Daoud.

    • orionATL says:

      thanks for this interesting detail.

      it humanizes and individulalizes doud in a way nothing else i have read does.

      • Kat Capps says:

        I don’t support Daoud’s actions. I don’t think the government has clean hands here either. Don’t know the answer.

        If I were Muslim, the way the us govt acts would lead me to feel harassed, causing frustration and resistance and anger. A vicious circle.

        It just seems that the way things are being handled isn’t working.

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