In the “Fort Dix Five” case, the Duka brothers were convicted with the help of an FBI informant. Their family is still waiting for justice.
Right up until his death in 2018, Ferik Duka dreamed of seeing his three eldest sons, Shain, Dritan, and Eljvir, freed from prison. In 2009, the three brothers were sentenced to life for their role in an alleged plot to attack the Fort Dix military base in New Jersey. The convictions followed a terrorism sting led by then-U.S. Attorney for the District of New Jersey Chris Christie that ran for over a year and involved multiple government informants. The brothers’ incarceration put an end to Ferik Duka’s immigrant dream: Decades earlier, he had brought his family to the United States from Albania in search of peace and opportunity.
“My dad’s prayers, before he passed away, were the saddest thing in the world,” said Ferik’s youngest son, Burim Duka. “He’d pray to God to bring his sons home, so he could see all of them together as a family one last time, and then he could die happy.”
The investigation into the “Fort Dix Five,” as the case became known, was marred by outrageous law enforcement and legal abuses, documented in a 2015 investigation and documentary by The Intercept. Their case was just one of many in which zealous FBI officials and prosecutors, operating in the heated atmosphere of post-9/11 America, branded individuals who posed no appreciable threat to the country as enemies of the state. Many of them, like the Duka brothers, were given long prison sentences or otherwise had their lives ruined after being convicted on material support for terrorism charges.
Today, U.S. officials have begun signaling their desire to move on from the war on terror and pivot to new security threats at home and abroad. For those whose lives were impacted by post-9/11 abuses, as well as the lives of their family and community members, moving forward is impossible. They want a measure of justice for the terrible events of years past — not least the reevaluation of convictions that in hindsight appear obviously abusive — and accountability for those who benefited from foiling plots that they themselves had concocted.
“There hasn’t been any reckoning with the legacy of this era. Instead, people have moved on with their careers, often after scoring political points off these cases.”
“There hasn’t been any reckoning with the legacy of this era,” said Ramzi Kassem, a City University of New York School of Law professor and founder of the Creating Law Enforcement Accountability & Responsibility project. “Instead, people have moved on with their careers, often after scoring political points off these cases. Down the chain, that is kind of the story of the war on terror, at least domestically.”
“Many prosecutors see these big splashy cases as a way to make a name for themselves and fulfill career ambitions,” Kassem said.
Since the September 11 attacks, the U.S. government has prosecuted over 800 people on terrorism charges. Not every case was as flagrantly concocted as the Fort Dix Five. Many, though, included a similarly troubling mix of judicial and law enforcement bias. The people who ended up in the crosshairs were often not serious threats, but rather those susceptible to the tactics employed by the authorities.
Kassem said, “It is alarming when you look across these cases and see an overrepresentation of suspects who were mentally deficient, marginalized, or otherwise vulnerable being the targets of these sting operations, and it raises questions about the reality of the terrorist threat that was depicted by the FBI.”
Instead of hardened terrorists, the war on terror as it was waged at home often went after people who posed no real threat to the United States. “There ought to be some kind of process where these cases are looked at collectively in retrospect and reexamined,” said Arun Kundnani, an expert on counterterrorism and author of “The Muslims Are Coming! Islamophobia, Extremism, and the Domestic War on Terror,” who has examined the now-debunked radicalization theories behind many terror convictions. “There are still people sitting in prison as a result of flawed prosecution theories or who served short sentences yet have had their lives ruined as a result of their convictions.”
The Fort Dix Five case was a huge career boon to at least one person: Chris Christie, who would go on to become governor of New Jersey and launch a serious presidential run.
Christie has continued to brag about his role in prosecuting the Fort Dix Five, highlighting it as one of his signal achievements. His boasting masks the reality of a case that was as farcical as it was tragic for the families involved. At trial, the government’s case relied heavily on a now-discredited terrorism expert named Evan Kohlmann, whose testimony was used to establish the key prosecution argument that because of their religious and political beliefs the Duka brothers had an ideological predisposition toward violence — a connection that itself has fallen into disrepute among scholars of terrorism.
Even the judge on the Fort Dix Five case, Robert Kugler, was forced to acknowledge the dearth of actual evidence against the men, even as he condemned them to life in prison. “That there isn’t more explicit evidence does not concern me and obviously didn’t concern the jury either,” Kugler said at Shain Duka’s sentencing. “I cannot deter this defendant, because of his belief system, from further crimes.” (In June 2016, Kugler upheld the brothers’ sentences.)
At the center of the case was an FBI informant who himself later said that he believed the Dukas were innocent and that the men had never even known about an ostensible plot to attack the Fort Dix military base. The informant, who was paid upward of $238,000 by the FBI for his efforts, would later describe the brothers as “good people.” He added, “I still don’t know why the Dukas are in jail.”
The wide-ranging use of undercover informants was one of the most controversial tactics used by the FBI and U.S. prosecutors in domestic counterterrorism cases. By some estimates, the FBI employed more than 15,000 informants across the United States, many of whom were tasked with going on so-called fishing expeditions, in which they infiltrated communities without knowledge of any actual criminal plot.
Some of the most egregious terrorism sting operations that used informants later became the subjects of documentaries and investigative reporting. Among them were the so-called Newburgh Sting case, the “Liberty City Seven” case, the Herald Square bombing plot, and many others involving individual or small groups of men allegedly coaxed into breaking the law by FBI informants.
”FBI agents are rated and scored on their ability to recruit informants, as well as how prolific those informants are,” Kassem said. “Even if they didn’t join law enforcement to do knock-and-talks or surveil people at mosques, they discover that if they don’t fulfill that tasking, their career prospects might be hampered.”
In addition to sowing paranoia and mistrust in communities across the country, the heavy use of informants led to an abundance of cases in which seemingly innocent people found themselves targeted. Informants themselves often had their own motivations for delivering results to their handlers, whether it was to obtain financial reward from the U.S. government or to escape their own legal or immigration problems.
“The years after 9/11 saw a shift away from the more traditional role of informant as the passive eyes and ears of the federal government inside an organized criminal syndicate towards something far more central, active, and participatory,” Kassem said. “Informants proposed so-called terrorism plots, funded them, provided means of execution, coaching, and even coaxed the targets of stings over prolonged periods of time in order to enable prosecutors to paint their conduct as criminally punishable.”
Reexamination?
Years of pushback from civil liberties groups have generated a few improvements in the way that law enforcement agencies, courts, and the nation’s sprawling national security bureaucracy approach many terrorism investigations.
A lawsuit by CLEAR and the American Civil Liberties Union resulted in the retraction of a debunked New York Police Department report on terrorist radicalization that had been employed by law enforcement agencies across the country to justify surveillance and other operations. Similar lawsuits were won on behalf of individuals who had been subject to various forms of unwarranted surveillance and harassment. Meanwhile, investigative exposés revealed some of the more egregious anti-Muslim biases that had been used in law enforcement training, leading the most bigoted documents to be pulled from curricula.
Despite these changes aimed at improving law enforcement and judicial practices, questionable terrorism cases have continued to be prosecuted across the United States, including at the state level. Even as the government has haltingly changed its approach in response to criticism, it has yet to reexamine the hundreds of cases in which people were sent to jail in concocted terrorism cases. Many such cases were justified on the basis of academic theories of terrorism and political violence purveyed by individuals like Kohlmann but are widely rejected by national security experts today.
“The assumptions that went into many terrorism convictions often rested on a flawed theory of radicalization that claimed certain people had a predisposition to violence based on their beliefs,” said Kundnani, the counterterrorism expert. “That theory was indispensable to getting convictions in many cases, regardless of how ridiculous the entrapment itself was, but the academic consensus on this subject is the opposite of what it was 15 years ago.”
“I’m not asking for them to just free my brothers. I want them to read about what happened and say what they honestly think about their convictions.”
The Fort Dix Five case was one of the very cases in which that theory of predisposition was used to secure a conviction, sending the Duka brothers to jail for life and devastating their family. Yet they were involved in no obvious plot, nor was anyone harmed. They remain in prison to this day, waiting for a sympathetic administration to review their case. Their family, too, is left hoping that the Biden administration’s promises to turn a page on the mistakes of the past, including on national security policy, do not ring hollow.
“I just wish people higher up would read about this case,” said Burim Duka, who was left the sole breadwinner for his family after his brothers’ incarceration and the death of their father. “I want them to keep an open mind. I’m not asking for them to just free my brothers. I want them to read about what happened and say what they honestly think about their convictions.”
He added, “I really don’t ask for much. Even if I spoke to the president, I wouldn’t simply ask for a pardon. I just want people to pay attention to this.”
Murtaza Hussain
August 29 2021, 1:00 p.m.