The U.S. Department of Justice on April 12, 2005, announced the unsealing of a four-count indictment handed down by a federal grand jury in the Southern District of New York against three British nationals, Dhiren Barot, Nadeem Tarmohamed, and Qaisar Shaffi, for conspiracy to use weapons of mass destruction, providing material support and resources to terrorists, and conspiracy to damage and destroy buildings used in interstate and foreign commerce.  The three defendants are among a group of eight suspects arrested in the United Kingdom in August 2004 and charged under Britain’s Terrorism Act 2000 (TACT) in connection with alleged surveillance and plans to attack financial targets in Washington D.C., New York City, and New Jersey.  The discovery of their alleged activities gave rise to a localized heightening of terror alert levels.

The Department of Justice indicates it will wait until British prosecutions of the defendants are completed before seeking extradition to prosecute them in the United States.  Public remarks by a senior FBI official suggested the indictments highlighted the global nature of the battle against terrorism and the significance of multiagency and multilateral cooperation in aggressively investigating leads and integrating intelligence from among multiple U.S. entities and international partners.

The indictment alleges that Barot, among other things, had been a lead instructor at a jihad training camp in Afghanistan.  News reports indicate Barot was believed to have been the head of al-Qaida in Britain, that evidence of reconnaissance of the financial targets had been found on a computer belonging to an alleged al-Qaida computer expert in Pakistan, and that the arrests in Britain had been made hurriedly after the computer expert’s name got mentioned in a Western news source.  Nevertheless, no mention of al-Qaida is made in the U.S. indictment, and unlike in instances of military commission charges brought against Guantanamo Bay detainees, there does not appear to be an effort to charge the defendants with conspiracy merely for being active in a particular terrorist group.

Federal Anti-Terror Statutes

U.S. federal statutes cited in the indictment, relevant charges, and maximum potential sentences include:

• 18 U.S.C. § 2332a (a)(2): conspiracy to use weapons of mass destruction against persons within the United States -- life imprisonment
   
• 18 U.S.C. § 2339A: conspiracy to provide and conceal material support and resources to terrorists -- fifteen years
   
• 18 U.S.C. § 2339A: actually providing and concealing material support and resources to terrorists -- fifteen years
   
• 18 U.S.C. § 844 (i) and (n): conspiracy to damage and destroy buildings used in interstate and foreign commerce, as well as other real and personal property, using fire and explosives -- twenty years

The indictment alleges that from roughly Aug. 17, 2000 through April 8, 2001, the three defendants conducted surveillance on financial targets in the United States including the International Monetary Fund headquarters and World Bank headquarters in Washington, D.C., the New York Stock Exchange and Citigroup Centre in New York City, and the Prudential Corporate Plaza and world headquarters in Newark, New Jersey, and that this surveillance was part of a conspiracy to use weapons of mass destruction.  The surveillance allegedly included video surveillance in Manhattan in early 2001.

The indictment also alleges that in or about 1998, Barot served as a lead instructor at a jihad training camp in Afghanistan where recruits were taught to use weapons and received other paramilitary training. 

It also alleges that in 2000, Barot applied to a college in New York to serve as a cover for later trips to the United States, never actually enrolling in classes, but making several trips between the United Kingdom and the United States in furtherance of the conspiracy.

The U.S. Attorney for the Southern District of New York noted the prospect of terrorists infiltrating seemingly peaceful, everyday surroundings:

The fact that these terrorists stalked their targets while surrounded by innocent and unsuspecting Americans going about their everyday affairs reminds all of us that a successful campaign against terrorism calls upon all of us to be ever-vigilant.

“Three British Nationals Indicted on Charges of Conspiring to Use Weapons of Mass Destruction, Providing Material Support to Terrorists,” Department of Justice news release #05-180, April 12, 2005, http://www.justice.gov/opa/pr/2005/April/05_crm_180.htm

Additional detail on the alleged activities of the accused men and their confederates came to light when they were arrested last summer in Britain, described below in the section “The British Arrest and Charges,” adapted from a writing authored in August 2004.

A closer look at two of the federal anti-terror laws at issue in the indictments

18 U.S.C. § 2332a: weapons of mass destruction

Loosely speaking, 18 U.S.C. § 2332a, outlawing terrorist attacks using weapons of mass destruction (WMD) covers:

• attacks on persons in U.S. territory where the attacks could affect interstate or foreign commerce (the latter language possibly was included to avoid Constitutional issues relating to the scope of the authority of the federal government; a tie-in to interstate or foreign commerce is a well-worn tactic to help assure favorable court review of federal legislation)
   
•  attacks made against U.S. nationals or U.S. government property or facilities outside U.S. territory
   
• attacks carried out by U.S. nationals outside the country.

This particular statutory provision does not necessarily focus squarely on what would be considered WMD from a military perspective.  For example, it contains, directly or indirectly by reference to another provision, text broad enough to relate not just to nuclear devices but radiological “dirty bombs” and essentially any explosive device.  At the same time, it excludes some chemical weapons, which are covered instead by 18 U.S.C. § 229 et seq.

The statute reads:

18 U.S.C. § 2332a (c) (emphasis added)

As seen above, a “weapon of mass destruction” is defined to include (but, as seen above, not be limited to) any “destructive device” as defined in 18 U.S.C. §921, which, generally speaking, includes any of the following if they involve any kind of explosive, incendiary, or poison gas:

• bomb
• grenade
• rocket with more than four ounces of propellant
• missile with more than one-quarter ounce of explosive
•  mine
• any device similar to any of the previous types listed
• any type of weapon with a bore more than one-half inch that expels a projectile, except for shotguns deemed sporting weapons by the Attorney General
• combinations of parts relating to the assemblage of a destructive device

The text of 18 U.S.C. §921 declares:

18 U.S.C. §921 (emphasis added).

18 U.S.C. §884: attacking property used in interstate or foreign commerce

As mentioned above, 18 U.S.C. §884 addresses an attack on property used in interstate or foreign commerce, as well as conspiracy to carry out such an attack:

(i) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both; and if personal injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be imprisoned for not less than 7 years and not more than 40 years, fined under this title, or both; and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.

* * *

(n) Except as otherwise provided in this section, a person who conspires to commit any offense defined in this chapter shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense the commission of which was the object of the conspiracy.

18 U.S.C. §884(i)(emphasis added).

The British Arrests and Charges

British authorities on Aug. 16, 2004, filed criminal charges against eight men for terrorism-related offenses, including in two instances the possession of information relating to the use of radioactive materials, toxic gases, and poisonous chemicals.  Then-U.S. Attorney General John Ashcroft described the men as having “connections to potential terrorist activities in the United States” with two of the men allegedly having possessed reconnaissance plans for one or more U.S. financial institutions.  On Aug. 18, 2004, the eight defendants appeared before a magistrate and were denied bail.

The eight were part of a group of thirteen arrested in multiple locations across Britain on Aug. 3, 2004, under Britain’s Terrorism Act 2000 (“TACT”).  All eight were charged under Section 1(1) of Britain’s Criminal Law Act of 1977 for “conspiring together with other persons unknown to murder” and conspiracy “to commit public nuisance by the use of radioactive materials, toxic gases, chemicals and/or explosives to cause disruption, fear or injury.”  Police allege the conspiracies spanned nearly four years dating from the beginning of 2000.

But only three of the eight face charges brought directly under TACT itself, coincidentally the three whose indictment in Manhattan was unsealed on April 12, 2005.  The three defendants facing charges under TACT are alleged to have possessed information “useful to a person committing or preparing an act of terrorism,” such as the reconnaissance plans or information on the use of explosives and deadly materials.

 The defendants and the British charges

 Mohammed Naveed Bhatti, Adbul Aziz Jalil, Omar Abdul Rehman, Junade Feroze, and Zia Ul Haq were charged with conspiracy to murder and conspiracy to create a public nuisance.

British charges against the three whose U.S. indictment was unsealed April 12, 2005

Qaisar Shaffi, in addition to the two conspiracy counts, is charged under TACT for possessing “an extract of the Terrorist’s Handbook, containing information on the preparation of chemicals, explosive recipes and other information about explosives.”

Nadeem Tarmohammed, in addition to the two conspiracy counts, is charged with possessing a reconnaissance plan for the Prudential Building in New Jersey.

Dhiren Barot, in addition to the two conspiracy counts, is charged with likewise possessing a reconnaissance plan for the Prudential Building in New Jersey, along with reconnaissance plans for the International Monetary Fund in Washington, D.C., the New York Stock Exchange, and the Citigroup building in New York City.  Barot is further charged with being in possession of two notebooks containing information on explosives, poisons, chemicals, and “related matters.”

(Recall that the charges referenced in this section are the charges brought in the United Kingdom.)

Barot a/k/a al-Hindi and U.S. reconnaissance

While not revealed by British or U.S. authorities, CNN reported in 2004 that two U.S. officials indicated Barot was a senior al-Qaida figure also known as Esa al-Hindi, believed to have worked with the reputed al-Qaida computer expert Mohammed Naeem Noor Khan.  Khan was arrested in Pakistan in 2004.  According to The Economist, reports from Pakistan indicated al-Hindi was the head of al-Qaida in Britain and answered directly to Osama bin-Laden.

Records seized with Khan in Pakistan reportedly contained detailed reconnaissance reports about financial facilities in the United States, believed to be a contributing factor in the decision to raise threat levels at relevant U.S. sites.  Pakistani intelligence reportedly claimed it was using Khan to help track down al-Qaida contacts abroad, a tactic foiled when Khan’s name appeared in a U.S. newspaper.  A day after the Pakistani operation reportedly was compromised British authorities made the thirteen arrests.

In addition to the eight defendants listed above, a ninth, Matthew Philip Monks, was charged with possessing a prohibited weapon.  Two other men who were arrested were released without charge, and two were released and then rearrested on suspicion of other offenses apparently not involving TACT.

Addendum:
International Convention for the Suppression of Acts of Nuclear Terrorism:
an emerging development in international law with domestic impact

While, as mentioned above, the federal statutory concept of weapons of mass destruction does not necessarily imply what comes to mind when military thinkers refer to WMD, and while there is little or no indication that the indicted defendants had any visions of using even “dirty bombs,” it nevertheless should be noted, in the context of any discussion of criminal prosecution under statutory authority relating to WMD, that legal frameworks for fighting nuclear terrorism are evolving.

For terrorist activity centering around nuclear material and nuclear devices, a new treaty passed by consensus in the UN General Assembly on April 13, 2005, could impact international and domestic law if it is signed and ratified by a sufficient number of states when it opens for signature in September 2005.  Addressed in a separate article, the International Convention for the Suppression of Acts of Nuclear Terrorism outlaws the use of nuclear devices and material for attacks by nonstate actors, calls for international cooperation in the fight against nuclear terrorism, and calls for appropriate legal frameworks, arrests, prosecutions, and extraditions to further its aims.  Text of the treaty may be viewed in PDF form at http://www.un.int/usa/a-59-766.pdf.

The United States has welcomed the treaty, which would seem to dovetail with the Bush administration’s evolving neo-multilateralism, characterized, for example, in the context of the Proliferation Security Initiative as striving for cooperative activity based upon actions by sovereign states within both the domestic and international spheres, involving legal frameworks for active enforcement with less emphasis on international bureaucracy.

Interestingly, as will be addressed in another article, the International Convention for the Suppression of Acts of Nuclear Terrorism devotes a significant degree of attention not just to nuclear terrorism, but to the treatment of detainees and conditions and circumstances for their extradition and prosecution.

Sources and additional reading:

“A bigger fish: Anti-terrorism raids are doing more good than harm,” The Economist, Aug. 5, 2004, http://www.economist.com/displayStory.cfm?story_id=3067985

“Anti-terror police charge eight,” BBC, Aug. 17, 2004, http://news.bbc.co.uk/2/hi/uk_news/3573680.stm

“Anti-terrorist charges,” London Metropolitan Police News Release, Aug. 17, 2004 http://www.met.police.uk/pns/DisplayPN.cgi?pn_id=2004_0111

Attorney General John Ashcroft, “Statement of Attorney General John Ashcroft on the Charges Brought by the United Kingdom Against Eight Individuals Allegedly Tied to Potential Terrorist Activity,” Department of Justice News Release, Aug. 17, 2004, http://www.justice.gov/opa/pr/2004/August/04_ag_564.htm

Tom Brune, Rocco Parascandola, Monte Phan, Knut Royce, “They watched us: Indictment of three alleged al-Qaida agents says the trio studied NYC targets months before 9/11,” Newsday, April 13, 2005, http://www.newsday.com/news/nationworld/nation/
ny-usterr134215850apr13,0,4453140.story?coll=ny-nation-big-pix

Ambassador Stuart Holliday, “Statement by Ambassador Stuart Holliday, Alternate United States Representative to the UN for Special Political Affairs, on the Adoption of the International Convention for the Suppression of Acts of Nuclear Terrorism, in the General Assembly, April 13, 2005,” United States Mission to the United Nations press release #68(05), April 13, 2005, http://www.un.int/usa/05_068.htm

“International Convention for the Suppression of Acts of Nuclear Terrorism,” treaty text contained in UN General Assembly document A/59/766, April 13, 2005, http://www.un.int/usa/a-59-766.pdf

Evelyn Leopold, UN Assembly Approves New Nuclear Terrorism Treaty, Reuters, April 13, 2005, http://www.reuters.com/newsArticle.jhtml;jsessionid=
ZS34HT30335GQCRBAEOCFFA?type=worldNews&storyID=8170408

18 U.S.C. Chapter 11-B, Chemical Weapons, 18 U.S.C. §229 et seq. http://www4.law.cornell.edu/uscode/html/uscode18/
usc_sup_01_18_10_I_20_11B.html

18 U.S.C. §844 Penalties (under Chapter 40, Importation, Manufacture, Distribution and Storage of Explosive Materials). http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t17t20+489+ 1++%28%29%20%20AND%20%28%2818%29%20ADJ%20USC%29% 3ACITE%20AND%20%28USC%20w%2F10%20%28844%29%29% 3ACITE%20%20%20%20%20%20%20%20%20

18 U.S.C. §921, http://uscode.house.gov/uscode-cgi/fastweb.exe?
getdoc+uscview+t17t20+521+1++%28%29%20%20AND%20%
28%2818%29%20ADJ%20USC%29%3ACITE%20AND%20%
28USC%20w%2F10%20%28921%29%29%3ACITE%20%20%
20%20%20%20%20%20%20

18 U.S.C. § [no space was used in the previous two paras] 2332a, Use of certain weapons of mass destruction,
http://uscode.house.gov/uscode-cgi/
fastweb.exe?getdoc+uscview+t17t20+1031+1
++%28%29%20%20AND%20%28%2818%
29%20ADJ%20USC%29%3ACITE%20AND
%20%28USC%20w%2F10%20%282332A%
29%29%3ACITE%20%20%20%20%20%20%20%20%20

Peter Graff, “Britain Charges 8 in Plot Linked to U.S. Alert,” Reuters, Aug. 17, 2004, http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=5998091 (posted as of Aug. 17, 2004)

Claude Salhani, “Analysis: Terror threat averted,” UPI, April 13, 2005, http://www.washtimes.com/upi-breaking/20050413-105414-7477r.htm

“Terrorism: Legislation,” U.K. Home Office, http://www.homeoffice.gov.uk/terrorism/govprotect/
legislation/index.html
#Terrorism%20Act%202000%20(TACT)

“Terror suspects appear in court,” BBC, Aug. 18, 2004, http://news.bbc.co.uk/2/hi/uk_news/3575106.stm

“Terror suspects charges in full,” BBC, Aug. 17, 2004, http://news.bbc.co.uk/2/hi/uk_news/3573704.stm

 “Terrorism Act 2000,” 2000 Chapter 11 (text of statute, posted by Her Majesty’s Stationery Office http://www.hmso.gov.uk/acts/acts2000/20000011.htm)

“Terrorism Act 2000 – Arrest and charge statistics,” U.K. Home Office, http://www.homeoffice.gov.uk/docs3/tatc_arrest_stats.html

“Terrorist Groups,” U.K. Home Office, http://www.homeoffice.gov.uk/terrorism/threat/groups/index.html

"Three British Nationals Indicted on Charges of Conspiring to Use Weapons of Mass Destruction, Providing Material Support to Terrorists,” Department of Justice news release #05-180, April 12, 2005, http://www.justice.gov/opa/pr/2005/April/05_crm_180.htm

“U.K. trio face US terrorism charges,” BBC, April 12, 2005, http://news.bbc.co.uk/2/hi/americas/4438593.stm#

“U.S. indicts three in alleged terror plot: Case linked to 2004 terror alerts in New York, Washington,” CNN, April 12, 2005, http://www.cnn.com/2005/LAW/04/12/terror.indictment/index.htm

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