“Terrorist” Isn’t What It Used To Be

It wasn’t long ago that the nation went bonkers at the threat of terrorism, and with some cause. But as with most hysteria, it went from serious concerns to less serious concerns, and ultimately the word took on such significance and outrage that the actual facts no longer mattered and the mere incantation of “terrorism” was enough to bring the bludgeon down on a defendant’s head. Senior District Judge John Kane said “Enough.”

After his co-defendant Jamshid Muhtorov informed him that the Islamic Jihad Union (IJU) was in need of financial support, Defendant Bakhtiyor Jumaev mailed Mr. Muhtorov $300. Mr. Jumaev wrote only a single check, and the funds never reached the IJU or any other foreign terrorist organization. Mr. Jumaev had no specific plot or plan and did not intend to further any via his contribution. The idea to aid the terrorist organization was proposed and facilitated entirely by Mr. Muhtorov. Indeed, Mr. Jumaev had no direct contact with the members of any terrorist organization. And, significantly, he never committed any act of violence, nor did he advocate for any particular violent act.

Providing “material support” to a terrorist organization is a crime. Whether the donation of funds was meant to support terrorism or other purposes isn’t relevant under the law. Nor does it matter whether the funds actually ended up there. That Jumaev mailed a check was enough for the law to kick in, for a jury to convict him. And they did. With the level of gusto reserved for a guy planning to blow up the World Trade Center, using all the official means crafted to thwart the most serious of terrorist outrages.

The cases took years to get underway, complicated by classified evidence, witnesses and experts from around the globe and the need to translate recorded or written evidence in several languages.

Jumaev’s co-defendant also unsuccessfully challenged the use of evidence obtained through warrantless wiretap programs.

But that didn’t answer the second question, what to do about this person whose offense was to send a check?

Prosecutors on Wednesday asked Judge John Kane to sentence Jumaev to 15 years in prison.

Prosecutor Gregory Holloway said Jumaev was on an “alarming trajectory” and may have taken other actions if he had not been arrested in March of 2012.

“At no point during the arc of this case does he pull back,” Holloway said. “And indeed, again, I view this as the beginning of radicalization.”

The rhetoric of fear of terrorism is easy to muster, where a $300 check today is the gateway to murdering millions in the jihad tomorrow. Judge Kane wasn’t buying.

Kane, though, called the government’s request “absurd” in a written ruling. In determining a sentence, Kane said he wanted to convey that any level of support for terrorism is intolerable.

“I believe that message has been sent in this case,” Kane said. “Mr. Jumaev has already been subjected to significant punishment.”

Rather than impose a sentence flamed by the fears of terrorism, the sort of sentence that had become common in federal terrorism prosecutions where any offense connected to terrorism demanded the most extreme sentences to “send a message,” the court looked at the conduct of the defendant before him and was unswayed by either the fear of terrorism or the fact that the defendant chose to exercise his right to trial.

In over forty years of judging I have never imposed a harsher sentence because a defendant asserted his right to trial by jury or to testify at that trial. I am not about to do so now or in the future. I consider any trial “tax” or penalty to be contrary to the ages-long values and standards of our legal system. It is more closely associated with the jurisprudence of Russia, as described by Dostoyevsky, than our own tradition as described by Benjamin Cardozo. In that vein, application of the Obstruction of Justice Enhancement here would be a violation of the concepts of justice and of ordered liberty.

For “multitudinous” reasons, Judge Kane rejected the government’s call for 15 years, as well as the guideline range, without the enhancements urged by the government, of 63 to 78 months, and chose instead to impose the sentence as required by § 3553(a), as warranted by Jumeav’s conduct rather than unwarranted fear of what he might, if he really was a terrorist, do.

A just sentence is an act for which a judge is morally responsible. That responsibility can neither be shunned nor relinquished based on the nature of the crime. We must recognize that a human being is the focal point of the sentencing process and should not be ignored or dismissed because of the inflamed rhetoric of the ―war on terror. I am reminded of Judge Learned Hand‘s wise comment: ―If we are to keep our democracy, there must be but one commandment: Thou Shalt Not Ration Justice.

Judge Kane imposed the following sentence on this fearsome “terrorist”:

After profound reflection on all of the factors discussed above, I sentence Defendant
Bakhtiyor Jumaev to time served, or in effect, 76 months and three days. Mr. Jumaev shall be
placed on supervised release for a term of 10 years for each count, to run concurrently.

Notably, Jumaev had already spent more than 6 years in custody before sentence. And despite Judge Kane’s refusal to allow fear of terrorism to guide his sentence, the net result for Jumaev is unlikely to change.

Kane said Jumaev was unlikely to ever be released in the U.S. because immigration authorities have begun proceedings to have him removed from the country. He will likely be detained by immigration authorities or deported to Uzbekistan, both “bleak” options, Kane said.

“His confinement is not over once you impose your sentence,” Jumaev’s attorney, David Barry Savitz, said during the hearing. “Once your sentence is imposed, Mr. Jumaev faces an indefinite future of confinement with immigration.”

Despite Judge Kane’s efforts to invoke the spirit of Judge Marvin Frankel, to impose a sentence “based on rational thought, humanity, and compassion,” there always seems to be another bludgeon in the hands of the government just beyond the reach of the law. But maybe the fear of terrorism, and its absurd harshness and rote application, will no longer compel judges to impose Draconian sentences whenever the word “terrorism” is invoked.

6 thoughts on ““Terrorist” Isn’t What It Used To Be

  1. B. McLeod

    Unfortunately, the political reaction to 9/11 has been far more destructive of our society than was the attack itself.

    1. SHG Post author

      Hysteria has always driven us beyond reason and deep intro destruction. And each time, we only recognize our overreactions after the damage is done. 9/11 was no different. Nor are today’s “catastrophes.”

  2. Casual Lurker

    I’m surprised that, so far (as we near the end of the day), there are no other comments.

    It’s unfortunate that “whenever the word ‘terrorism’ is invoked”, otherwise rational people often discard all critical thought, generally losing their minds.

    A public service reminder from one of Hitler’s henchmen, Hermann *Göring:

    “The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country.”

    Since 9/11, invoking “terrorism” has become the *new* “we must swiftly act to prevent [insert particular sky-is-falling rationale], for the sake of the children!”, and also has the benefit of being applicable in a greater number of circumstances.

    *A frequently used alternate spelling is “Goering”.

    1. SHG Post author

      It’s always a curiosity why one post gets a ton of comments while another gets very few. It’s not for lack of readers, as this post was widely read. Maybe it’s uncontroversial? Maybe reading Judge Kane’s incredibly brilliant and bold sentencing order was too much effort? Maybe no one had anything to add? Beats me.

      1. Grant

        To answer you your question, your post makes one point and it makes it well. I had nothing to add.

        (You don’t have to publish this.)

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