It was almost 15 years ago when five young men from northern Virginia left the U.S. to pursue dreams of jihad in Afghanistan, only to find themselves under arrest in Pakistan when their farewell video prompted family members to contact the FBI.
Now, after the five served a decade in a Pakistani prison, U.S. prosecutors are moving forward with plans to put them on trial again for terrorism charges.
At a status hearing Tuesday in U.S. District Court in Alexandria, however, a judge gave strong indications that she plans to toss out charges against one of the men on grounds that torture and solitary confinement he allegedly endured in Pakistan have rendered him mentally incompetent.
In fact, U.S. District Judge Leonie Brinkema has questioned the utility of bringing charges against any of the five, given the fact that they were convicted and punished already in Pakistan.
“If these men have been prosecuted in Pakistan and served significant periods of incarceration in a Pakistani prison, and now the United States government is trying to charge them for essentially the same conduct in this country, you’ve got to think about whether that makes sense,” Brinkema said during a December status hearing on the case.
The five men — Waqar Khan, Ahmed Minni, Ramy Zamzam, Aman Yemer, and Umar Farooq — originally came to the FBI's attention only after family reported them missing.
In late 2009, the five left the U.S. for Pakistan, leaving behind an 11-minute video espousing the need to engage in holy war to defend Muslim lands under attack. Family members sought to stop them from making the trip once they learned of the plans, reaching out to a Muslim civil rights group, the Council on American-Islamic Relations, and eventually to lawyer Nina Ginsberg and the FBI.
But the five had already made it to Pakistan and began looking for people who could help them get to Afghanistan. They were frequently turned away by those they sought out, according to a recently unsealed FBI affidavit, although one man suggested he could help if one of the five's extended family in Pakistan could vouch for them.
They were arrested in Sargodha, a city in the eastern province of Punjab, on Dec. 9, 2009, about nine days after the FBI learned they left the U.S., according to the affidavit.
Several members of the group admitted to FBI agents that their goal was to fight against American troops if they got to Afghanistan.
The five were charged in Pakistan, where they say they were tortured during their detention — allegations denied by Pakistani authorities. All five were convicted and received 10-year terms.
After serving their sentences, the U.S. government has sought to bring them to the U.S. to face charges here. So far, though, only three of the defendants — Zamzam, Yemer and Minni — have been deported back to the U.S. A fourth remains in Pakistani custody, and a fifth is at large there.
Yemer, who was just 18 when he was arrested and is the youngest of the five, faces serious mental health problems. Ginsberg, his lawyer, said in court that Yemer's faculties eroded after mistreatment and solitary confinement in Pakistan. As she described it, Yemer sits in a chair all day, nonresponsive. He only eats if he is fed, and he only goes to the bathroom if someone takes him to a toilet.
Months in a hospital, including electroshock treatment, were largely unsuccessful, she said.
“They just totally incapacitated him,” Ginsberg said after Tuesday's hearing, in which her client appeared dressed in a gray tracksuit, his face blank.
Ginsberg said during the hearing that she was hopeful the U.S. would drop the charges against her client. Brinkema gave clear indication she will dismiss the charges against Yemer as soon as Ginsberg files a motion seeking dismissal regardless of whether the Justice Department agrees.
As for the other defendants, prosecutor John Gibbs expressed optimism that a plea deal will be reached and circumvent the need for a trial. Lawyers for Zamzam and Minni have said that if a deal can't be reached, they plan to seek dismissal on grounds that their clients were denied the right to a speedy trial, among other potential issues.
At a hearing in December, Brinkema raised the question of whether a U.S. trial would amount to double jeopardy, although it was not immediately clear whether the trial in Pakistan would allow the defendants to claim double jeopardy protection in the U.S.
Ginsberg, for her part, said she doesn't believe the men deserve any further incarceration in the U.S.
“Ten years in a Pakistani prison is like 30 years in the U.S.,” she said. “They've had enough.”
