Showing posts with label Political Prisoners. Show all posts
Showing posts with label Political Prisoners. Show all posts

2020-01-06

Israeli Justice… a Futile Chase

by Stanley L. Cohen
CounterPunch

“Doctrine of Futility”
Seventeen years ago, 23 year old Rachel Corrie (a Washington State volunteer with the International Solidarity Movement) was crushed to death by an armored military bulldozer as she stood on top of a mound of dirt trying to prevent the dozer from destroying a civilian home in the Southern Gaza Strip village of Rafa. Wearing a bright orange vest and shouting out at the bulldozer through a megaphone, Corrie was murdered for the temerity of her unarmed act of peaceful defiance. More than a dozen years later the Israeli Supreme Court rejected her parents’ suit to hold Israel’s military accountable for her death. In finding that an “explicit statutory provision of the Knesset overrides the provisions of international law”, the Israeli High Court sacrificed well more than a century of settled international protections, including those memorialized under the laws of war and human rights, to the endless Israeli talisman of “wartime activity.”
More than a few historians can recall that very chant, raised and rejected at the Nuremberg Tribunals, which held Nazis accountable for targeted attacks on civilians throughout World War II.
Less than two months after the murder of Corrie, 34 year old James Henry Dominic Miller (a Welsh cameraman, producer and director who had won five Emmy awards for his work) was shot dead by an Israeli soldier, at night, while filming a documentary in the Rafah refugee camp. Moments after he and his crew left a Palestinian home bearing a white flag, two shots rang out. After the first shot a crew member cried out, “…we are British journalists.”. Soon, a second shot hit Miller, killing him instantly. Initially, one spokesperson reported that after the IDF discovered a tunnel at the house Miller had exited, he was shot in the back when caught in the middle of a crossfire precipitated by an anti-tank missile fired at Israeli troops. Another spokesperson said his death occurred during “…an operation taking place at night, in which the [Israeli] force was under fire and in which the force returned fire with light weapons.”
Later, both versions were retracted when it turned out that the round that killed Miller had entered not through his back but the front of his neck. Likewise, the tale of crossfire fell apart with witnesses reporting no such exchange of gunfire and none having been heard on an audio recording made contemporaneous to the incident.
Some two years later, an Israeli military police investigation into Miller’s killing was closed without returning any criminal charges against the Israeli soldier suspected of firing the fatal shot … though he was to be “disciplined” for violating the rules of engagement and for altering his account of what had occurred.
The following year, an inquest jury at St Pancras Coroner’s Court in London returned a verdict finding that Miller had been “murdered” and that the fatal shot matched rounds used by the IDF. Not long thereafter, the UK Attorney General made a formal request to Israel for it to prosecute the soldier responsible for firing the shot. That request was ignored. To date, no such proceedings have been undertaken by Israel …be it by an independent investigatory body, the military or the office of the state prosecutor.
In March of 2009, thirty-eight year old California native, Tristan Anderson, was hit in the forehead by a high-velocity teargas canister fired directly at him by an Israeli border policeman, some 60 metres away, following a regular joint Palestinian -Jewish demonstration against the Israeli separation barrier in the West Bank village of Ni’lin. When struck, Anderson was simply talking with three or four other activists in the center of the village some distance from the “shame wall” where the demonstration had earlier occurred. In the months prior, four Palestinians had been killed by soldiers during like demonstrations.
Taken to a hospital with his head split open, Anderson underwent three emergency brain operations which required the partial removal of his frontal lobe. The surgery, which left him in a coma and in critical condition, blinded his right eye and paralyzed half of his body. After fifteen months of hospitalization, Anderson returned home where, a decade later, he continues to require around the clock care because of permanent cognitive impairment and physical disability.
Several days after Anderson was crippled, Israeli police opened an investigation into the circumstances of the shooting. Given the 400 plus metre range of the canister, and their respective positions, there was clear evidence of criminal intent on the part of the soldier who shot Anderson. Despite this, the investigation was closed, some six months later, without explanation or any public finding… and with no criminal charges filed against any police or military personnel.
When no criminal charges were filed against those involved, the Andersons filed a civil law suit against Israel but waited years for the case to proceed in an Israeli court. Years later, the case remains very much in a state of judicial limbo with no determination as to it merits. Not unusual at all, counsel for the Anderson’s has noted that “…[t]he astonishing negligence of this investigation and of the prosecutorial team that monitored its outcome is unacceptable, but it epitomizes Israel’s culture of impunity. Tristan’s case is actually not rare; it represents hundreds of other cases of Palestinian victims whose investigations have also failed.”
As she walked out of the courtroom after a judicial proceeding into the civil lawsuit regarding the shooting of her partner, Gabby Silverman, who is Jewish, was served with an order that she had to leave Israel within the following 7 days because there was “insufficient proof that there was a lawsuit going on, and insufficient proof that she is a Jew.”
These three matters involving the murder or cripple of foreign nationals by Israel are very much the rule and not the exception in a state that sees dissent or disobedience as an open invitation for retaliation. For the fortunate, it means but arrest or expulsion for the less so …outright assassination.
For those who survive politically rooted Israeli assault, or their mourning heirs, the road to equity remains a dead end… one blocked by walls of incompetence or indifference… smothered by systemic delay and legislative fiat that convert black robes of justice to mere rubber stamps of state. To be sure, Israel’s failure to promptly and thoroughly investigate facts and circumstances, let alone to prosecute its agents… military or otherwise… who commit crimes against foreign nationals or to provide for an equitable and expeditious civil remedy for them or their loved ones, is well-known, indeed, notorious throughout the world.
For Palestinians, every step outside their home is to navigate a mine field of uncertainty; every encounter with an Israeli soldier or police officer a literal tempt to their life or liberty. The famed Israeli human rights center, B’Tselem, has archived a veritable cemetery of Palestinians victimized by extra-judicial Israeli assassination. Most cry out for justice from beyond the headstones that mark their name with little else but the smile of their memory. Meanwhile, loved ones wait for the call of justice… an echo, for almost all, never to be heard.
On July 13, 2011, twenty-one year old Ibrahim ‘Omar Muhammad Sarhan was shot dead at al-Far’ah Refugee Camp by soldiers who ordered him to stop during an arrest operation. When he refused, he was killed. Though a military investigation into his killing was opened, it was eventually closed, with no one charged, on the grounds “…that the shooting soldier’s conduct was not unreasonable given the overall circumstances and his understanding of the situation at the time.”
On February 23, 2012 twenty-five year old Tal’at ‘Abd a-Rahman Ziad Ramyeh was shot dead at the northeast corner to a-Ram, al-Quds District, after throwing a firecracker at soldiers during a clash with demonstrators. A military investigation into his death was closed “…on the grounds that the gunfire that killed Ramyeh was carried out in accordance with open fire regulations.”
On March 27, 2012, twenty-seven year old Rashad Dhib Hassan Shawakhah was wounded, in the village of Rammun, when he and his two brothers confronted two out-of-uniform soldiers who approached their home in the middle of the night. Believing the men to be burglars, the brothers, armed with a knife and a club, confronted the soldiers who, without identifying themselves, shot the three of them. Uniformed soldiers arriving at the scene shot Rashad, again, as he lay wounded on the ground. He died six days later. Although a military investigation was opened, more than seven years later no action has yet been taken.
On January 15, 2013, sixteen year old Samir Ahmad Muhammad ‘Awad of Budrus, Ramallah District, was shot and killed by soldiers near the Separation Barrier. After crossing the first barbed wire fence of the barrier, Awad was shot in the back and in the head as he tried to flee the soldiers’ ambush and return to Budrus. Although two soldiers were indicted, several years later, for reckless and negligent use of a firearm, the charges were eventually dismissed when prosecutors told the court that because their evidence had “weakened” there was no longer “…a reasonable prospect of conviction.”
On January 23, 2013, twenty-one year old Lubna Munir Sa’id al-Hanash was shot and killed while walking on the grounds of Al-‘ Arrub College, after a Molotov cocktail was thrown at an Israeli car traveling ahead of the vehicle in which the soldier who fired and the second-in-command of the Yehuda Brigade were passengers. The following year, an investigation into the killing by the military was closed after a finding that the “… shooting did not breach protocol and did not constitute any type of criminal offense.”
On December 7, 2013, fifteen year old Wajih Wajdi Wajih a-Ramahi was shot in the back and killed by soldiers, at the Jalazon Refugee Camp, while standing in the vicinity of teenagers in the camp who were throwing stones at the soldiers from approximately 200 meters away. Six years later, the case remains under military “investigation.”
On March 19, 2014, fourteen year old Yusef Sami Yusef a-Shawamreh of Deir al-‘Asal al-Foqa, Hebron District, was shot by soldiers after he and two friends crossed a gap in the Separation Barrier to gather gundelia [Arabic: ‘Akub], a thistle-like edible plant. Not long thereafter, a military investigation of the shooting was closed with a finding of the “…absence of a suspected breach of open fire regulations or criminal conduct on the part of any military personnel.”
On May 15, 2014, sixteen year old Muhammad Mahmoud ‘Odeh Salameh was shot in the back and killed in a protest near the village of Bitunya, near the Ofer military base, that included stone-throwing. He was not throwing stones when killed. Two years later, the military closed an investigation into the killing after it claimed that no evidence was found connecting a soldier to the shooting.
On July 22, 2014, twenty-nine year old Mahmoud Saleh ‘Ali Hamamreh of Husan, Bethlehem District, was shot in the chest and killed by soldiers when he stepped out of his grocery shop to observe clashes underway in the village. While a military investigation was initiated soon thereafter, four years later no decision has yet to be reached.
On August 10, 2014, ten year old Khalil Muhammad Ahmad al-‘Anati of the al-Fawwar Refugee Camp was shot in the back by a soldier while near other boys who were throwing stones at a military jeep in the Camp. He died of his wounds in hospital. Several years later, a military investigation into the child’s killing ended after “…the investigation found that the troops had acted out of a sense of mortal danger, and that no link between the gunfire and the death of the boy… could be proven.”
On July 23, 2015, fifty-three year old Fallah Hamdi Zamel Abu Maryah of Beit Ummar, Hebron District, was killed after soldiers entered his home, to make an arrest, and shot and wounded his son. When Abu Mariyah threw pottery at the soldiers from a second floor balcony of his home, soldiers shot him three times in the chest. A military “investigation” continues.
On September 18, 2015, twenty-four year old Ahmad ‘Izat ‘Issa Khatatbeh of Beit Furik, Nablus District, who was congenitally deaf, was shot in the back by soldiers near the Beit Furik Checkpoint. He died six days later. To date, it appears no investigation into his killing has been initiated.
On September 22, 2015, eighteen year old Hadil Salah a-Din Sadeq al-Hashlamun of Hebron was shot and killed when hit multiple times in her legs and upper body after refusing to stop on her way out of the Police (Shoter) Checkpoint. As it turned out a concealed knife was recovered from her. No criminal investigation into her killing was undertaken.
On October 5, 2015, thirteen year old ‘Abd a-Rahman Shadi Khalil ‘Obeidallah of the ‘Aydah Refugee Camp, Bethlehem District, was shot dead by soldiers as he stood, with other teenagers, approximately 200 meters away from a military post at Rachel’s Tomb where minor clashes were underway between Palestinians and soldiers. Although a military investigation into the child’s killing was initiated, no decisions have been reached more than four years later.
On November 6, 2015, seventy-two year old Tharwat Ibrahim Suliman a-Sha’rawi was shot dead by soldiers standing on a road after they “suspected” she was trying to run some of them over. Even after the car passed, soldiers continued firing at her. The military reported no investigation was launched as a “…preliminary review of the incident did not indicate suspicion of a criminal offense.”
On November 13, 2015, twenty year old Lafy Yusef Mustafa ‘Awad of Budrus, Ramallah District, was critically injured when shot in the back by soldiers after he broke free from their grasp and began to flee. Driven to hospital in a civilian vehicle, which necessarily took longer because of a military checkpoint, he was pronounced dead upon arrival. No investigation was undertaken as the military stated “…a preliminary review of the incident did not indicate suspicion of a criminal offense.”
On December 11, 2015, fifty-six year old ‘Issa Ibrahim Salameh al-Hrub of Deir Samit, Hebron District was shot and killed by Border Police and soldiers who “suspected” he was trying to run them over. Six months later, the military advised that no investigation would be launched into the incident as a “…preliminary review of the incident did not indicate suspicion of a criminal offense.”
On December 18, 2015, thirty–four year old Nasha’t Jamal ‘Abd a-Razeq ‘Asfur of Sinjil, Ramallah District, was shot and critically wounded, while walking home, by soldiers more than a hundred meters away who opened fire while other Palestinians threw stones at them. He died later that day in hospital. While a military investigation was opened it was apparently closed without any charges.
On February 10, 2016, fifteen years old ‘Omar Yusef Isma’il Madi of the al-‘Arrub Refugee Camp, Hebron District, was shot dead by a soldier in a military tower, at the entrance to the camp, while stones were being thrown at the tower. Though an investigation was launched, more than three year later no conclusion has been reported.
On May 4, 2016, twenty-three year old Arif Sharif ‘Abd al-Ghafar Jaradat of Sa’ir, Hebron District, (who had Down’s syndrome) was shot as he approached soldiers as they were leaving his village. He died six weeks later. Although a military investigation was closed because “…the gunfire at the casualty did not deviate from open-fire regulations” an appeal has been filed.
On June 21, 2016, fifteen year old Mahmoud Raafat Mahmoud Mustafa Badran of Beit ‘Ur a-Tahta, Ramallah, was fatally shot… and four other young men injured… by soldiers who fired on their car while they were driving through a tunnel on their way home from a night at a swimming pool. An investigation was closed by the military which concluded “…in light of the circumstances of the incident, the miss-identification of the car was an honest and reasonable error, and it was permissible for the troops to initiate suspect apprehension procedure.”
On October 20, 2016, fifteen year old Khaled Bahar Ahmad Bahar of Beit Ummar, Hebron District, was shot in the back and killed as he ran into a grove fleeing soldiers. Although an investigation was reportedly begun, more than three year later no action has ensued.
On October 31, 2017, twenty-six year old Muhammad ‘Abdallah ‘Ali Musa of Deir Ballut, was shot dead by soldiers, while driving to Ramallah with his sister, after soldiers had reportedly been alerted that a suspicious vehicle was approaching. Ordering the car to stop, one of the soldiers began to fire at the car, and continued even after it had passed by, without any of its passengers having tried to harm anyone. It was reported that Musa lay wounded on the ground for some 10 minutes without receiving any medical care and was later seized by soldiers while being treated by a Palestinian ambulance team. Two years after the military opened an investigation, it was closed because the soldiers had “…acted in accordance with open-fire regulations and because their operational actions did not evince ethic deficiency.”
On January 30, 2018, sixteen year old Layth Haitham Fathi Abu Na’im of al-Mughayir, Ramallah, was shot in the head and critically injured by a rubber-coated metal bullet fired by a soldier from 20 meters away, after returning to his village post clashes he had taken part in had ended. A military investigation is pending.
On December 4, 2018, twenty-two year old Muhammad Husam ‘Abd a-Latif Hbali of Tulkarm Refugee Camp, was shot in the head by soldiers from behind. Intellectually disabled, when shot, he was moving away from soldiers while carrying a stick. All was quiet at the time he was shot. A military investigation has been on-going since.
On December 14, 2018, eighteen year old Mahmoud Yusef Mahmoud Nakhleh of al-Jalazun Refugee Camp Ramallah, was shot in the back by soldiers from about 80 meters away while running near the entrance to the refugee camp… after others had thrown stones at a military post at its entrance. Soldiers dragged Nakhleh away by the arms and legs and denied him medical treatment for about 15 minutes. He died soon thereafter. A year ago, a military investigation was launched.
On December 20, 2018, seventeen year old Qassem Muhammad ‘Ali ‘Abasi of Ras al-‘Amud, East Jerusalem, was fatally shot in the back by soldiers, who were stationed near a checkpoint, as the car in which he and three of his relatives were passengers was driving away from the checkpoint. A military investigation was opened.
On March 20, 2019, twenty-two year old Ahmad Jamal Mahmoud Manasrah of Wadi Fukin, Bethlehem, was shot dead by a soldier who fired at him from a military tower near a local checkpoint. At the time he was killed, he was helping a family whose car had been shot at by soldiers and had pulled over. An investigation is pending.
On March 7, 2019, seventeen year old Sajed ‘Abd al-Hakim Helmi Muzher, a volunteer medic, from the a-Duheisheh Refugee Camp, Bethlehem District, was shot in the stomach as he ran to evacuate a Palestinian who had been shot in the leg when stones were being thrown at troops who had entered the camp. He died later that day. A military investigation is on-going.
These horrors are but a microcosm of a deadly, systemic tradition that has raged unabated for generations in which thousands of largely young Palestinians have been targeted, crippled and murdered without penalty of consequence to Israel’s military or security structure… essentially unmonitored and uncontrolled… indifferent to human rights and international law. Yes, there have been those rare empty exceptions in which a perverse judicial performance has made a mockery of life and law with token punishment meted out for crimes that shock the conscience of humanity.
Thus, on January 1, 2013, twenty-one year old ‘Udai Muhammad Salameh Darawish of a-Ramadin, Hebron District, was shot dead by soldiers near the Meitar checkpoint as he fled them after he entered Israel, for work purposes, without a permit. Following a military investigation and plea bargain to negligent manslaughter, a soldier received a seven-month suspended sentence and was demoted to sergeant.
Two more recent judicial miscarriages remind us, once again, that law in Israel remains but a gavel for Jews and a bludgeon for all others:
On May 10th of this year, Elor Azaria, an Israeli medic who faced up to 20 years upon his conviction for manslaughter, walked out of prison after serving but nine months of an eighteen month sentence originally imposed on him by a military court. It was subsequently reduced to fourteen months by the IDF chief of staff and then again by the army’s prison parole board (and agreed to by military prosecutors) for his cold-blooded execution of twenty-one year old Abdul Fatah al-Sharif  who lay injured and motionless on the ground after stabbing, but not seriously injuring, an Israeli soldier in Occupied Hebron. With calm, deliberate ease, Azaria was recorded as he approached his victim, cocked his rifle and executed him with a single shot to his head.
Not long ago, an Israeli military court sentenced a soldier to one month of the military’s equivalent of community service over the execution of fifteen year old Othman Rami Halles who he shot dead during protests near the Israel fence east of the Gaza Strip on July 13, 2018. The unnamed soldier was convicted for “…acting without authorisation in a manner endangering to life and well-being.”
These sentences pale in comparison to those routinely imposed upon Palestinian children convicted of throwing stones. For example, sixteen year old stone thrower Saleh Ashraf Ishtayya was sentenced to three years and three months in prison. Fourteen year-olds Muhammad Ahmad Jaber and Murad Raed Alqam received three year sentences. Seventeen year old Muhammad Na’el and sixteen year old Zaid Ayed al-Taweel each received two years and four months in prison for the same offense. None of these children injured, let alone, took the life of an Israeli.
Tragically, casualties have long been the anguished, up-close face of the Occupation with an historical character that wields a deadly reach unmatched and long ignored by the world. As very much a perverse rite of passage, thousands of Palestinian civilians have paid the ultimate price for little more than their presence… lost to multiple high-tech military operations that have targeted residential communities and schools, hospitals and core infrastructure. Many more have been wounded or crippled by relentless Israeli attacks designed to leave survivors not just overwhelmed and battered but with a sense of isolation and futility. Nowhere has this brutal assault on fundamental human rights and international law been more conspicuous than through the sniper attacks on Gaza, over the past 18 months, that have slaughtered or injured tens of thousands of demonstrators whose only weapons have been the step of their march and the resound of their voice. And what of international law?
Volumes have been written on humanitarian law… the law of war and human rights. No doubt they line the walls of judicial halls throughout Israel… from its lowest military courtroom in the Occupied Territories to the highest civilian chamber that claims to rule supreme as the guardian of due process and equal protection for Israeli citizens and those held captive by it. Yet, even a cursory glance by an untrained eye leaves the imprint of a judicial system that is subservient to the chant of state security and legislative fiat and slowed to a process of delay that drags on and on for years leaving no one but Israeli Jews comfortable in the notion that they will have their day in court and with speed and fairness.
Millions of Palestinians are held captive in the Occupied Territories be it in the West Bank by security onslaught or military patrol or by the heap of Concertina wire, sniper mounds and air force and naval watch that keeps all of Gaza imprisoned every minute of every hour of every day. For these foreign nationals… and they are foreign nationals… they never see the inside of an Israeli civilian court or the due process it infers. For these perpetual prisoners, the uniformed soldiers that carry weapons become uniformed soldiers that investigate and prosecute cases to uniformed soldiers that pass judgment adorned not by robes of independence but by order of salute. As noted above in the archive of causality, few if any Palestinians ever obtain due process and equal protection of the law, let alone with independent and foreseeable resolution, as investigations and cases linger on for years pushed, predictably, to the back of the line as each new public outrage unfolds. This is not justice but the “Doctrine of Futility” at its primordial worst.
International Relief
It is settled law that before seeking international relief, aggrieved parties must first seek redress for harm, caused by a state, within its own domestic legal system. Exhaustion of local remedies (ELR) is intended to uphold state sovereignty by recognizing its own judicial process as a presumptive vehicle for the independent, equitable and expeditious resolution of claims against the state. ELR presumes a state’s judicial and administrative systems provide for a credible and apolitical avenue for injured foreign nationals to obtain their day in court before moving-on for diplomatic protection or undertaking international proceedings directly against the state. Yet, very much the proverbial beauty locked in the eyes of the beholder, provisions like equitable, independent and expeditious are routinely recast by repressive regimes across the globe to mirror little more than partisan safeguard of the state’s tyrannical needs and agenda.
Nowhere is that more palpably evident or painfully clear than it is in Israel where judicial remedies have long and repeatedly proven to be little more than a convenient faith based tease… a non-existent march to the beat of the overarching political gavel of the Knesset. For Israeli Jews, “all rise” portends opportunity denied all others. For Israeli Jews, lady justice cheats as she peeks out from behind her blindfold… for all others, she is but a symbol without a sign.
The ELR rule is a foundational mainstay of all global and regional international human rights entities and covenants. For example, within the UN, the International Covenant on Civil and Political Rights mandates that it’s Human Rights Committee “shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law.”
Likewise, the European Convention on Human Rights provides that the European Court of Human Rights “may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law.”
The American Convention on Human Rights requires exhaustion of local remedies “in accordance with generally recognized principles of international law” before the submission of petitions or communications to the commission.
The African Charter on Human and Peoples’ Rights provides that the Commission “can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.”
This exemption is but one of several that find smooth fit within the so-called “Doctrine of Futility.” Under this doctrine, while release from the requirements of the ELR fluctuates from venue to venue, by-in-large one need not chase domestic justice where none can be had. Thus, in general, ELR may be bypassed:
a. If the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;
b. If the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or
c. If there has been unwarranted delay in rendering a final judgment under these remedies.
Israel is a veritable primer, a law school’s teach, on when and where all three damning exemptions merge to validate an apt and speedy march to the nearest international forum in pursuit of justice and human rights otherwise willfully denied foreign nationals in any courthouse or military barrack that flies the banner of the Star of David.
And just who are foreign nationals? In most jurisdictions they cut a relatively narrow swath; typically but a handful of tourists, temporary workers, or businesses and those incidentally injured by practices of cross-border states. Yet, the numbers balloon to millions of foreign nationals in occupied Palestine where all aspects of every Palestinian’s life is impacted… if not controlled… daily by an occupation force and judicial process of another state.
Independent of the pervasive culture of military and security violence and its companion lack of fairness and accountability, the Israeli judicial system… both criminal and civil… presents a compelling case study in a double standard delayed and disabled based solely upon ones faith and national identity.
Child Prisoners
Over the last two decades, more than 8,000 Palestinian children (foreign nationals) have been arrested in the Occupied Territories and prosecuted in an Israeli military system devoid of any meaningful due process or equal protection for the most vulnerable and traumatized among those that have known nothing but the bark of occupation their entire lives. It is a military justice process notorious for the systematic ill-treatment and torture of Palestinian children.
Several hours after their arrest, these children arrive at an interrogation and detention center alone, tired, and frightened. All interrogations, by their very nature, are inherently coercive no matter the age or experience of its victim. None are more so than for an often bruised and scared child forced to go through the process without the benefit of counsel or the presence of parents who are never permitted to participate.
Israeli law provides that all military interrogations must be undertaken in a prisoner’s native language and that any statement made must be reduced to writing in that language. Despite this prohibition, Palestinian detainees are typically coerced into signing statements, through verbal abuse, threats, and physical violence, that is memorialized by police in Hebrew… which most cannot understand. These statements usually provide the main evidence against children in Israeli military courts.
The Military Court Process
The military “courts” themselves are held inside military bases and closed to the public… and usually family members of the accused. Within these courts, military orders supersede Israeli civilian and international law.
In military courts, all parties… the judge, prosecutor and translators… are members of the Israeli armed forces. The judges are military officers with minimal judicial training and, by-in- large, served as military prosecutors before assuming the bench. The prosecutors are Israeli soldiers, some not yet certified as attorneys by the Israeli Bar. Under the rules of Occupation, all defendants in military courts are Palestinian… as the jurisdiction of the Israeli military court never extends to some eight hundred thousand Jewish settlers living in the West Bank who are accorded the full panoply and safeguard of Israeli civil law.
Under military law, Palestinians can be held without charge, for the purpose of interrogation, for a total period of 90 days during which they are denied the benefit of counsel. Detention can be extended without limit and requires but an ex parte request of military prosecutors. By comparison, a Jewish citizen accused of a security offense, within the Occupied Territory, can be held without indictment in the civil process for a period of up to 64 days during which time counsel is available at all times.
Though Palestinian detainees are entitled to military trials which must be completed within eighteen months of their arrest, their detention can be extended indefinitely, by a military judge, in multiple six-month increments. It is this limitless process which has left thousands of Palestinian political detainees imprisoned for years on end without the benefit of counsel, formal charges, or trial. The comparable time limit for detainees in Israeli civilian courts is no more than nine months.
While criminal liability begins at age twelve for Palestinians and Israelis alike, under the military system Palestinians can be tried as adults at sixteen. For Israelis, prosecution as an adult in a civilian court is eighteen. This two year difference, without physical distinction of consequence, can mean a sentence disparity of many years should a conviction ensue. In some cases, it can literally mean a difference between a few years in prison versus decades upon conviction.
Although the United Nations has repeatedly held that the military justice system in the Occupied Territory violates international law, it has done nothing to ensure equal protection and due process to hundreds of thousands denied justice by virtue of being Palestinian and nothing else. This continues to be true for Palestinian minors. According to B’tselem “…at the end of October 2019, 185 Palestinian minors were held in Israeli prisons as security detainees and prisoners, including one under the age of 14.”
Neighborhood Cleansing
With the onset of the Occupation in 1967, Israel initiated a wide range of largely extrajudicial strategies in its incessant effort to claim new municipal boundaries and to remake the age old Palestinian character of east Jerusalem. What began with the seize of large swaths of vacant land surrounding the Old City… for the construction of illegal Jewish settlements… eventually gave rise to the de facto annexation of East Jerusalem… universally condemned as a flaunt of international law. However, never ones to allow legal standards to become barricade to political needs, successive Israeli governments have accelerated the Judaization of the historic capital of Palestine, typically using the call of security as a pretext, while Israel’s judiciary has looked away…largely indifferent to its responsibility to ensure that equal justice be done.
Recently, Israel destroyed 10 mostly unfinished buildings containing some 70 apartments, in the Wadi Hummus neighborhood on the edge of southeast Jerusalem, which were being built with permits issued by the Palestinian Authority in an area under its recognized jurisdiction. Displacing 17 Palestinians, including an older couple and five children, from apartments that were finished, the demolitions also left several hundred others, awaiting housing in the buildings, saddled with ensuing economic loss. Though condemned by the United Nations, the government nonetheless proceeded with the demolitions after Israel’s High Court refused to intervene on the grounds that the project was being built in a military-declared buffer zone near a “security” fence that had gone up years before. That barrier, which is part of the system of steel fences and concrete walls which runs throughout the West Bank and around Jerusalem, was subsequently found to be illegal by the International Court of Justice in 2004. Like hundreds of other international declarations, Israel ignored the findings.
The destruction of these residential buildings is by no means an isolated or unpredictable phenomenon. In point of fact, another one-hundred buildings completed, or under construction, under similar circumstances in the same neighborhood, face the same risk.
While the proffered basis for demolitions has changed to suit the Israeli needs of the moment, they play an essential mainstay in its intended policy of ethnic cleansing throughout east Jerusalem. This modern-day pogrom finds its genesis in a cap that was placed on the expansion of Palestinian neighborhoods in the days following the seizure of east Jerusalem, thereby forcing many to build illegally according to the laws of the Occupation. This artificial limit has been exacerbated by systemic discrimination when it comes to the issue of building permits in east Jerusalem. Though Palestinians make up more than 60% of the population of the Old City according to the Israeli civil rights group Peace Now, they have received just 30% of the building permits issued by Israel dating back to 1991. Given these circumstances, it has been estimated that more than twenty-thousand housing units built in traditional Palestinian neighborhoods dating back to 1967 fall into the category of illegal… thus placing them at risk of demolition no matter what their condition, how long they have stood or the numbers of their occupants.
This danger has found new impetus since the United States moved its Embassy to east Jerusalem, essentially declaring it to be the capital of Israel. Emboldened by this act, and not now fearing either political or economic reprisal by the United States (or meaningful intervention by its own courts), Israel has recently accelerated its demolition policy leading to the destruction of several hundred residential and commercial structures… leaving hundreds of Palestinians homeless and dozens of businesses in ruins.
While precise figures are unknown, it is estimated that, over the last fifteen years, more than one thousand- five hundred residential and commercial units have been demolished by Israel leaving more than three-thousand Palestinians homeless… including some one thousand- five hundred minors.
Of late, we have seen an increase in the number of demolitions carried out by Palestinians, themselves. While some construe the demolition of several dozen Palestinian structures by their own residents as almost a willful, romanticized act of political defiance, self-demolition has less to do with self-determination than it does the unbearable cruelty and cost of the moment. The aching reality is that a judicial system without justice has authorized the state to bill those for the cost of the destruction of their own homes… lest they do so themselves.
Collective Punishment
While Israeli authorities have argued that punitive home demolitions provide “…a severe message of deterrence to terrorists and their accomplices”, such demolitions violate the Fourth Geneva Convention as well as a host of Israel’s human rights obligations… in particular that no-one should be punished for an act they did not commit. Under Israeli law, those subject to punitive home demolitions are accorded an opportunity to appeal a demolition order to a court. However, Israel’s High Court has routinely refused to consider the absolute prohibition in customary international law against collective punishment of civilians in occupied territory when ruling on petitions against punitive home demolitions in the West Bank, including in east Jerusalem. As almost settled law, the Court has held that demolitions can, in general, be justified as “proportionate” when balanced against the need to deter other Palestinians from carrying out future attacks. Moreover, as a practical matter, rare are the opportunities for prospective victims to obtain timely judicial relief thru applications for review of looming military demolitions.
Thus, according to Article 119 of the Military Authority, the IDF commanders responsible for application of military measures in the West Bank and East Jerusalem are empowered to confiscate and demolish any property, if he determines that the inhabitant…and not necessarily owner… of the property resorted to terrorist violence. That power is not vested or required to go through judicial process but rather is purely administrative. Thus there is no need for a court order to authorize house demolitions and the evidence required to demolish a home carries for the military a low threshold of internal administrative proof …“…convincing in the eyes of a reasonable decision maker.”
Though reprisal has long enjoyed a high degree of support among the Israeli public, and thus politicians, there can be no reasoned debate over whether house demolitions constitute a form of collective punishment, and thus a war crime. Prohibited under basic principles of human rights law and Articles 33 of the Fourth Geneva Convention of 1949 and Article 50 of the 1907 Hague Regulations, demolitions also constitute cruel, inhuman and degrading punishment and are selectively applied as against Palestinians and never Jews who commit acts of terrorism.
At their core, these demolitions, which also violate the prohibition on the destruction of private property set forth under Article 53 of the Fourth Geneva Convention and Article 23(g) of the 1907 Hague Regulations, seek not to penalize a “terrorist” who is likely dead or in custody charged with serious offenses and facing years, if not decades, in prison, but rather, family members who reside in the home targeted for military reprisal. Thus, innocent parents, husbands or wives, children and siblings or other residents are left homeless as they are forced to bear the consequences of the acts of loved ones, even in the absence of any prior knowledge or nexus to them.
Although Israel has periodically suspended home demolitions, in times of heightened tension or militant resistance they have become very much part of the military mainstream since the onset of the Occupation. While the exact number of such demolitions is neither documented nor certain, it is estimated that more than 2,000 Palestinian homes have been destroyed pursuant to Article 119 since 1967. Though the Israeli High Court requires the IDF commander to hold a hearing for the residents of a property to be destroyed and permits a petition to the court to stay the demolition, these “safeguards” have proven to be a promise without purpose. While the court has stressed those demolitions are harsh security measures that should be used only in “extreme circumstances” not once has it overridden the authority of the IDF to proceed accordingly.
Lest there be any doubt that history can be but a harbinger of things to come, some of those that run the bulldozer of today in Palestine are progeny of those who picked through the rubble of homes and businesses ransacked and destroyed as collective punishment for acts of terrorism. Undoubtedly a pretext, in 1938, following the assassination of a German Embassy attaché in Paris by a young Polish-German Jew, a campaign of collective reprisal was unleashed against Jews in Germany. Known as Kristallnacht, crowds set fire to synagogues, smashed shop windows, demolished furniture and stocks of goods with the approval of the German Government. Years later Nazis applied the principle of Sippenhaft (collective responsibility) to avenge the assassination of Reinhard Heydrich ,the architect of the “Final Solution to the Jewish question”, through mass executions and the destruction of two Czech villages… Lidice and Lezaky.
With predictable promote, Prime Minister Netanyahu recently indicted the ICC investigation of Israel for war crimes and crimes against humanity as little more than anti-Semitism. Putting aside Netanyahu’s readily transparent canard, at its core, the ICC typically does not exercise its jurisdiction pursuant to the Rome Statute unless and until a state fails to provide a meaningful domestic remedy for violations of international law. On this score, few can deny that no such equitable and effective opportunity exists within Israel. As noted by Human Rights Watch, “…the impetus for the establishment of the ICC is the stark failure of national court systems to hold the perpetrators of genocide, crimes against humanity, and war crimes accountable under law.”
Be it by virtue of the blanket political control of the Knesset or the deadly untamed reach of its security apparatus, Israel’s judiciary stands as an emasculated reminder that foreign nationals, whether occupied Palestinians or Westerners seen as enemies of the state, have not, and cannot, obtain due process and equal protection of the law, let alone in an independent and expeditious manner, through Israel’s judicial process. Under these circumstances, the Doctrine of Futility overshadows the need to exhaust local remedies to seek international relief for domestic wrongs. The Doctrine does not provide for an easy and settled pathway for foreign nationals to obtain justice outside the confines of extant domestic procedure. Yet, at its core, this international exemption finds its greatest potential and need when and where, as here, a judicial system is built upon a double standard of law… one for Palestinians, the other for Jews.

Stanley L. Cohen is lawyer and activist in New York City.

2018-07-31

The Homecoming

by Alice Speri
The Intercept

How Ahed Tamimi Became the Symbol of Palestinian Resistance to Israeli Oppression

NABI SALEH, WEST BANK — As if anyone needed reminding, even on the day of her release from prison, Israeli authorities seemed to want to show Ahed Tamimi, her family, and her many supporters that they control Palestinian lives.

Ahed and her mother, Nariman, were supposed to be freed on Saturday after serving an eight-month sentence in an Israeli military prison, but because Saturday is not a work day in Israel, their release was postponed. On Sunday, their family was told that they would be freed at 7 a.m. at a military checkpoint in the northern West Bank, nearly an hour and a half drive from their village, Nabi Saleh. When relatives and friends arrived there, the military sent them, as well as dozens of members of the press, to a different checkpoint, nearly two hours in the opposite direction. When they reached there, Bassem Tamimi was told, again, that his daughter and wife would be released at the first checkpoint. As the convoy of cars turned around one more time, they received another call telling them to head back to the second checkpoint.

“They were playing cat and mouse; they were trying to break everyone,” Manal Tamimi, Ahed’s aunt, told The Intercept. “They don’t need to give any justification. They just do what they want.”

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2018-04-18

Palestinian ex-prisoner: You sit there wishing you would die

by Zena Tahhan
Aljazeera

Haifa Abu Sbaih says she was psychologically tortured and mistreated as a prisoner in Israeli jails for 16 months.

Hebron, occupied West Bank - Haifa Abu Sbeih was only 15 when she witnessed the immediate aftermath of a horrific massacre outside her family's home in the Old City of Hebron.

She recalls standing outside her home in 1994, searching for her older brother after she heard gunshots in the Ibrahimi Mosque nearby, where an American Israeli settler had opened fire on hundreds of Palestinians during dawn prayers, killing 29 and wounding more than 100.

"All the men poured into the streets, their clothes dripping with blood, crying and seeking refuge in our home," she tells Al Jazeera. While she stood outside calling for her sibling, Abu Sbeih says the army shot and killed a young man, Nour al-Muhtaseb, right before her eyes.

This incident, was for Abu Sbeih, a taste of what would become a lifetime of challenges as she lived in Hebron, the only Palestinian town with a Jewish-only settlement located in the heart of the city.

Due to the presence of some 800 Israeli settlers, Hebron is exceptionally militarised, with the Israeli army imposing severe restrictions on everyday life and the movement of 40,000 Palestinians living there.

Many Palestinians have resorted to building metal enclosures around their homes to avoid being targeted by settlers who regularly hurl abusive comments, throw stones and attack them.

For Abu Sbeih, a particularly testing experience of the occupation came in December 2015 when she was arrested by the Israeli army for plotting, along with three of her nephews, to shoot and kill an Israeli settler in Hebron. According to Abu Sbeih, the settler, Anat Cohen, had for years harassed Palestinians in Hebron with regular and targeted abuse.

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2018-03-23

Israel sentences Ahed Tamimi to eight months in prison

by Tamara Nassar
The Electronic Intifada

An Israeli military court has approved a plea deal which will see Palestinian teenager Ahed Tamimi serve an eight-month prison sentence on top of a fine of nearly $1,500.

Ahed, who turned 17 in January, was charged with assaulting soldiers and incitement after a video recorded by her mother Nariman circulated, showing Ahed and her cousin Nour slapping and shoving two heavily armed Israeli soldiers on 15 December.

Ahed was arrested in the middle of the night at her home in the occupied West Bank village of Nabi Saleh on 19 December.

Nour and Nariman were also detained by the army following the videotaped incident and have been sentenced to time served -- 16 days in prison -- and eight months in prison, respectively, after accepting plea deals.

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2018-02-27

In Pre-Dawn Raid, Israel Arrests Badly Wounded Cousin of Ahed Tamimi, Jailed Protest Icon

by Robert Mackey
The Intercept

EARLY MONDAY MORNING, Israeli forces detained a teenage Palestinian boy who has been missing part of his skull since December, when he was shot in the head by an Israeli soldier during a protest against the occupation of his West Bank village.

The boy, Mohammed Tamimi, 15, was one of 10 Palestinian residents of the village of Nabi Saleh arrested in a pre-dawn raid. Tamimi’s 17-year-old cousin, Ahed, has been in an Israeli military prison since December, when she was filmed slapping an Israeli soldier outside her family home about an hour after Mohammed was shot.

Mohammed was arrested in the middle of the night, and taken away for interrogation, despite the fact that his medical condition has been widely reported on in the Israeli press, and his head remains badly deformed.

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2018-01-17

US media reverse Ahed Tamimi’s reality

by Michael F. Brown
Electronic Intifada

When 16-year-old Palestinian Ahed Tamimi stood up to Israeli occupation soldiers, she couldn’t have known just how much of her story mainstream US media would cut away and twist.

Salient facts, like how Ahed has spent her entire life under military occupation and Israel’s near-fatal violence against her cousin, were either ignored outright or downplayed. Others, such as the indisputable reality that Palestinian land is being stolen by Israel, were treated as if they were simply matters of opinion.

Some in the US press even presented Ahed as the aggressor, rather than the Israeli forces she challenged through mild physical contact.

Ahed’s use of slapping, kicking and angry rhetoric received more attention from David M. Halbfinger in The New York Times and especially from Dana Dovey in Newsweek than the much more harmful Israeli resort to violence, theft and seemingly permanent occupation.

The shocking photo of Muhammad Fadel Tamimi, Ahed’s 15-year-old cousin, and his misshapen head published in a 5 January Haaretz article by Gideon Levy and Alex Levac stands in stark contrast to the solitary sentence Halbfinger allotted Muhammad’s shooting in a 22 December article one week after the confrontation.

Halbfinger dispenses with Muhammad’s severe injury by stating in the 13th paragraph: “The latest incident, filmed in the family’s backyard, occurred within hours after a cousin of Ms. Tamimi’s was shot in the face with a rubber bullet, and it was streamed live on Facebook.”

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2018-01-10

My Daughter, These Are Tears of Struggle

Ahed Tamimi's father: I'm proud of my daughter. She is a freedom fighter who, in the coming years, will lead the resistance to Israeli rule

by Bassem Tamimi
Haaretz

This night too, like all the nights since dozens of soldiers raided our home in the middle of the night, my wife Nariman, my 16-year-old daughter Ahed and Ahed’s cousin Nur will spend behind bars. Although it is Ahed’s first arrest, she is no stranger to your prisons. My daughter has spent her whole life under the heavy shadow of the Israeli prison — from my lengthy incarcerations throughout her childhood, to the repeated arrests of her mother, brother and friends, to the covert-overt threat implied by your soldiers’ ongoing presence in our lives. So her own arrest was just a matter of time. An inevitable tragedy waiting to happen.

Several months ago, on a trip to South Africa, we screened for an audience a video documenting the struggle of our village, Nabi Saleh, against Israel’s forced rule. When the lights came back on, Ahed stood up to thank the people for their support. When she noticed that some of the audience members had tears in their eyes, she said to them: “We may be victims of the Israeli regime, but we are just as proud of our choice to fight for our cause, despite the known cost. We knew where this path would lead us, but our identity, as a people and as individuals, is planted in the struggle, and draws its inspiration from there. Beyond the suffering and daily oppression of the prisoners, the wounded and the killed, we also know the tremendous power that comes from belonging to a resistance movement; the dedication, the love, the small sublime moments that come from the choice to shatter the invisible walls of passivity.

“I don’t want to be perceived as a victim, and I won’t give their actions the power to define who I am and what I’ll be. I choose to decide for myself how you will see me. We don’t want you to support us because of some photogenic tears, but because we chose the struggle and our struggle is just. This is the only way that we’ll be able to stop crying one day.”

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And if Ahed Tamimi Were Your Daughter?

How is it that Israelis are totally indifferent to the plight of the blond girl behind bars who could easily be their child?

by Gideon Levy
Haaretz

For the past two weeks, she has burst into Israelis’ living rooms every few days through another perfunctory report on the extension of her arrest. Once again, we see the golden curls; once again, we see the Botticelli figure in the brown Shin Bet security service uniform and the handcuffs, looking more like a girl from Ramat Hasharon than a girl from Nabi Saleh.

Yet even Ahed Tamimi’s “non-Arab” appearance hasn’t managed to touch any hearts here. The wall of dehumanization and demonization that has been built through vile campaigns of incitement, propaganda and brain-washing against the Palestinians has trumped even the blonde from Nabi Saleh.

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2015-06-26

The Real Story Behind the Fort Dix Terror Plot

by Mrutaza Hussain and Razan Ghalayini
The Intercept

On the evening of May 7, 2007, 48-year-old Lata Duka was doing dishes in the kitchen of her home in Cherry Hill, New Jersey, when she heard a loud bang come from the front of the house. “It wasn’t a normal sound. I was very scared,” Lata recalls nearly a decade later.

Thinking someone was breaking in, Lata grabbed a chair from the kitchen table and hoisted it above her head, waiting for the intruder. Moments later a swarm of armed men burst through the front door and ran into her kitchen. “Put the chair down or I’ll shoot!” she says one exclaimed, pushing his gun against her chest.

The armed men were FBI agents and other law enforcement officials. As they searched the house, one of the men approached Lata. He was smiling.

“He kept asking me, where are my sons!” Lata remembers. “Just smiling and going up and down the stairs, asking me all the time, where are your sons? I told him my sons were at work. He just kept smiling at me.”

Lata didn’t know that at roughly the same time, authorities were conducting raids at separate locations in Cherry Hill to arrest her three sons, Dritan, Shain and Eljvir Duka. Over 100 officers and agents were involved in what at the time was one of the most high-profile counterterrorism arrests in the post-9/11 era.

The next morning, Chris Christie, then the U.S. attorney for New Jersey, appeared at a press conference flanked by law enforcement officials to announce the arrests. “The philosophy that supports and encourages jihad around the world against Americans came to live here in New Jersey and threatened the lives of our citizens through these defendants,” he said.

Christie said that five men apprehended the previous night ? the three Duka brothers along with two friends, Mohamad Shnewer and Serdar Tatar ? had been planning to launch a terrorist attack against the nearby Fort Dix military base. “Fortunately, law enforcement in New Jersey was here to stop them,” he said.

The press conference and ensuing case garnered national attention, and the brothers and their friends quickly became known as the “Fort Dix Five,” characterized in the media as a terrorist cell that intended to kill servicemen and attack facilities at the base. For Christie, now a possible contender for the GOP 2016 presidential nomination, the arrests would be a career turning point, helping galvanize his eventual rise to governor of New Jersey.

For the Duka family, the arrests marked a tragic turn. They had escaped the turmoil of the former Yugoslavia and managed to start anew in the United States, only to find three sons publicly branded as terrorists. Dritan, Shain and Eljvir, seized when they were 28, 26 and 23, would be convicted of conspiring to kill U.S. military personnel and sentenced to life in prison, devastating the Duka family and putting an end to their nascent American dream.

Beyond the sensational headlines is the story of paid FBI informants with long criminal histories who spent a year working to befriend the brothers and enlist them as terrorists. This effort, both expensive and time-consuming, nevertheless failed to convince the Duka brothers to take part in a violent attack. Indeed, over the course of hundreds of hours of surveillance, the plot against Fort Dix was never even raised with them.

In the years since these events occurred, the use of dubious informants in terrorism investigations by the FBI has become almost routine. When purported terror plots are “revealed,” they almost invariably involve paid government informants at every level of their ideation, facilitation and planning. But the story of the Duka brothers is an early example of this type of case ? and it still stands out because of the deliberate and brazen way the brothers were entrapped by authorities, assisted by their paid informants. Indeed, one might argue that the targeting of the Dukas was the prototype for the program of state-orchestrated terrorism plots that continues today.

IN THE 1980s, Yugoslavia was in its final chaotic decade of existence. Lata Duka and her husband, Firik, both ethnic Albanian Muslims, decided to leave their small village of Spas in search of a better life for their three young boys.

The Dukas traveled by train across Europe to a refugee camp in Latina, Italy, where they stayed for a year. From there, they boarded a plane to Mexico City and made their way to the Rio Grande, which they crossed by canoe into Texas. Once across the border, the family spent 12 hours in the back of a pickup truck to Dallas, before finally heading east toward their final destination: the Bensonhurst neighborhood of Brooklyn, New York.

None of the Dukas spoke English at the time, and they had entered the country without legal documents. Firik found a job stocking shelves at a Korean-owned fruit stand, where he was paid $175 a week. He made flashcards to learn the names of the produce he was handling, and at night, he would come home and teach his wife the words he had learned. “Our way of life was to just take care of our families, just live simply, and teach the children how to work hard,” Firik says.

Life in Brooklyn wasn’t easy, and the Duka family was only getting bigger. Lata and Firik had two more children: a girl named Naze and a boy named Burim. When their oldest child, Dritan, or Tony as he’d come to be called, turned six, they sent him to public school. Because he could barely speak English, he fell behind the other kids. When Lata got notes from his teachers, she couldn’t read them.

Bensonhurst was known, in Brooklyn and beyond, as a home for ethnic mafias. “Growing up, the Russians would be with the Russians, Italians with the Italians, and the Albanians with the Albanians,” remembers Burim, the youngest of the four brothers. “The Albanians never started nothing, but sometimes, if someone came to us, we had to fight.” It wasn’t unusual for the boys to come home with a black eye or a bleeding lip. In time, they adapted to the street life of their neighborhood, developing thick Brooklyn accents and a swagger to match.

Tony, who had a temper, frequently got into fights at school. He knew he was heading down a bad path and dropped out during his freshman year, telling his father, “If I don’t, I’m either going to end up in jail or dead.” Reluctantly, Firik got his son a job at a wholesale food distributor, where he was driving delivery trucks.
Though he stopped attending classes, Tony continued to pick up his brother Shain from high school, where he eventually met a student named Jennifer Marino. The two fell in love, began dating, and a year later were engaged. Jennifer moved into the Duka family’s small apartment.

Like their older brother, Shain and Eljvir also dropped out of school to work, and spent more time hanging out on the streets. At various points, the three brothers were arrested on charges of disorderly conduct and marijuana possession.

Firik and Lata grew increasingly frustrated; they hadn’t moved their family halfway across the world to have them give up their education and get caught up in petty crime. They were at a loss for what to do, and overwhelmed by the challenges of life as immigrants in America. In an effort to keep their sons out of trouble, Firik moved the family out of Brooklyn to a two-bedroom apartment in suburban Cherry Hill, New Jersey. Tony, Jennifer and their newborn baby girl, Lejla, took one room, while Firik and Lata took the other. Shain, Eljvir, Naze and Burim all slept in the living room.

One day after leaving work, Shain and his girlfriend got into a car accident. While their injuries were minor, the experience shook Shain. “I realized that if I had died then I would have gone to hell,” Shain says of the experience, writing to The Intercept from a federal prison in Kentucky, where he’s currently incarcerated. “The accident made me realize that death can come at any moment so I better try and get right.”

Over the course of the next year, Shain began to take his Muslim identity more seriously. He stopped drinking and smoking pot, and says these changes in behavior opened up conversations about religion among the brothers. “I started to read the Quran a bit, and pray every now and then. It was a struggle because I didn’t want to be fake,” Shain says. “When I do something, I don’t want to be hypocritical. Over here praying and fasting, then over here in a nightclub smoking weed with a bunch of girls partying. No, I would try and do it wholeheartedly.”

Lata and Firik, both practicing Muslims, were overjoyed by this change. “I had tears in my eyes when they were telling me they would start praying,” says Lata. As the tumult of their early years passed, the brothers began to settle into lives revolving around family and work, pooling their money to open a restaurant, which they named Dukas Pizza. They also became more religious. Their understanding of Islam was elementary and largely self-taught, and for the first time, they began attending mosque services on Fridays, praying five times a day and growing out their beards. They incorporated Islamic phrases into their everyday lives, greeting each other with “Salaam alaikum,” or “Peace be upon you.”

As the Dukas were changing, the United States was about to change, too. On September 11, 2001, hijacked planes crashed into the Word Trade Center towers and the Pentagon. “When it happened, I was driving to a job in Jersey. My kids called me from home and told me something had happened,” Firik says. “I used to deliver food in those buildings, and I would take Shain along with me. When he was a child, the Twin Towers were his favorite buildings in the city. We couldn’t believe this was happening.”

In the aftermath of the attacks, the national mood turned. The Dukas, like many others, were opposed to the subsequent wars launched by the Bush administration in Iraq and Afghanistan. In their view, the U.S. was waging an unfounded attack on two countries that had nothing to do with 9/11. “I was frustrated and against the wars. I believed the wars were unjust and wrong,” Shain wrote from prison. “They killed so many innocent people.”

The Dukas also began to grow increasingly disenchanted with the widespread mistreatment of Muslims. In Europe, the 2004 Madrid train bombing, believed to be carried out by an al Qaeda-inspired terror cell, was followed the next year by a series of attacks in London. Public officials in Europe and the U.S. began to warn of the threat posed by young Muslim men. “America was turning into a spy state, it used 9/11 as a stepping stone to justify this,” Shain says. “Not everyone was affected, so not everyone cared, but Muslim people felt it.”

Yet the Duka family continued to thrive. Firik had started his own roofing business, which the brothers decided to focus on full time, selling their pizzeria. By the end of 2005, the company employed a growing staff and the future seemed bright. The boys decided to do something they had done many times before as a family: take a vacation.

In January 2006, the Duka brothers and a group of friends, including Mohamad Shnewer, Eljvir Duka’s former schoolmate and future brother-in-law, took a trip to a cabin in the Poconos Mountains in Northern Pennsylvania. There, they did what any group of young men might do on vacation: they went skiing, played paintball in the woods, rode horses at the stables and went to the shooting range.

Tony brought his video camera to record his brothers and friends. After the trip, Burim and Shain took the tape from Tony’s camera to a Circuit City near their home in Cherry Hill. They wanted to make copies of the video to give to everyone who went on the trip.

The Circuit City clerk processing the videotape saw a group of young bearded men in the woods, skiing, shooting guns and riding horses. The Dukas, whose daily speech was often punctuated with Arabic phrases, could occasionally be heard saying “Allahu Akbar” on and off camera. While in earlier years a group of young Muslim men at the shooting range may not have aroused the panic of employees, in the heightened paranoia after 9/11, it was enough to trigger alarm.

The employee called the police and reported the tape.

THE FOOTAGE REVEALED no evidence of a crime, but the Circuit City employee’s call to the police set in motion a series of events that would soon link the Dukas and their friends to Mahmoud Omar, a 36-year-old Egyptian immigrant who was also an FBI confidential informant.

In the 1970s, when the Senate was investigating the FBI’s notorious COINTELPRO domestic counterintelligence operations, the agency employed around 1,500 confidential informants. Today, that number has ballooned to 15,000 confidential informants. Many of these individuals have long-documented criminal histories or problems with their immigration status, and their entanglement with the law is exploited to coax them into helping generate criminal cases against people who have yet to commit concrete acts.

In 2006, the FBI approached Omar, who also lived in Cherry Hill. He had moved to the U.S. in the 1990s and made a living exporting cars to Egypt; in some cases, they had been reported stolen. Convictions for fraud littered his record. “They showed me a photograph and asked me who it was in the picture,” he told The Intercept by phone. “The FBI don’t come and ask you if you know someone if they don’t already know the answer.”

The man in the photograph was Mohamad Shnewer, Eljvir Duka’s friend and future brother-in-law. Omar knew Shnewer in passing from shopping at the Shnewer family’s halal grocery store. The FBI told Omar they needed to know what Shnewer and his friends were up to and asked Omar to become an informant. He agreed.

Shnewer was a taxi driver in his early 20s whose sister was engaged to Eljivir. The Duka brothers, who describe Shnewer as immature, seemed to be his only friends. They were older and had the cachet of being tough guys from Brooklyn. Shnewer was always trying to impress them, Burim remembers. “One time, he told us that a passenger in his taxi refused to pay the fare, so he got out of the car and hit him across the head with a baseball bat,” he says.

Burim believes that story, like many of the others Shnewer would tell, was a lie.

Omar began coming to the grocery store with increasing frequency to befriend Shnewer. For Shnewer, the older man quickly became a mentor and a confidant. As their relationship developed, they began to discuss politics, religion and the ongoing wars in Iraq and Afghanistan.

While it’s unclear how the conversations began, it’s apparent from the FBI’s recordings with the informant that Shnewer was receptive to the idea of violence. Shnewer told Omar that that he spent time on the Internet watching graphic combat footage from Iraq.

The informant encouraged his new young protege, suggesting that Shnewer move beyond listening and talking; it was time to “do something,” Omar said, and the two began floating ideas of what that “something” might be. In August 2006, Omar and Shnewer began discussing the idea of launching an armed attack against Fort Dix military base, close to Trenton, New Jersey.

But only Omar and Shnewer were formulating plans for an attack. In a conversation recorded on August 2, 2006, Omar pressed Shnewer to come up with other recruits for their plot. “You and I are not enough, and you had told me that maybe there could be other people,” Omar said. “Otherwise, we can’t do anything.”

“No, no, no when I tell you I have people, that means I have people,” Shnewer responded. “Listen I will not talk to anyone about matters like these unless I trust them.”

In the same conversation, Shnewer brought up Serdar Tatar, also a close friend of the Dukas, whose father owned a pizzeria near the Fort Dix base. Tartar dreamed of becoming a police officer, and Shnewer knew this, according to the Burim and his parents. Nonetheless, Shnewer offered Tatar up as a possible co-conspirator, mentioning a map of Fort Dix he’d used to deliver pizza from his father’s shop to the base.

Mohamad Shnewer: You know Serdar? Who has the pizzeria close to here?

Mahmoud Omar: So, what are your thoughts about him?

Mohamad Shnewer: He is ready…. he has a map…. he used to deliver there.

Mahmoud Omar: Ready to be killed?

Mohamad Shnewer: Yes!

 Two days later, Omar asked Shnewer again about possible conspirators for the attack.

“So who do you have in mind?” Omar asked.

Shnewer replied: “I have Tony, Eljvir and Shain in mind.”

IN U.S. CRIMINAL LAW, a conspiracy is an agreement between two or more persons to commit a crime at some time in the future. It is an agreement to break the law; it doesn’t have to be a plan. Once two individuals enter into an agreement, the crime is complete, though some statutes require evidence that concrete steps have been taken. But an individual cannot enter into a conspiracy with a government informant. So unless Shnewer could convince the others to join the plan to attack Fort Dix, there would be no criminal conspiracy.

Omar apparently felt more comfortable approaching Tatar than the Duka brothers and began courting the 23-year-old. He told him of the plot to attack Fort Dix and openly asked for his help: he needed the pizza delivery map.

Tatar, who had since left his father’s pizza shop and moved to Philadelphia, was working at a 7-Eleven when Sgt. Dean Dandridge of the Philadelphia Police Department came by for his daily coffee. On November 15, 2006, Tatar told Dandridge that he believed Omar might be planning a terrorist attack. Neither Tatar, nor Dandridge, had any way of knowing that Omar was an informant.

Dandridge left Tatar’s information with the FBI, expecting the bureau’s agents would be in touch soon. For three weeks, Tatar waited for the FBI to contact him. In the meantime, he recorded at least one conversation with Omar, so that when the authorities did reach out, he would have information to give them. Eventually and inexplicably, after repeated prodding, Tatar gave Omar the map of Fort Dix.

When a Philadelphia police detective assigned to the FBI’s Joint Terrorism Task Force spoke to Tatar, he downplayed the threat and refused the audio that Tatar had recorded. The agent asked Tatar if he had indeed given Omar the map. Suddenly scared, Tatar lied. That lie would later implicate him in the conspiracy.

Having succeeded in this haphazard way of ensnaring Tatar, Omar relentlessly tried to persuade Shnewer to set up a meeting with the Duka brothers to discuss “the plot.” But the meeting never seemed to materialize. Time and again, Shnewer found excuses to explain why this didn’t happen. For example, on September 14, 2006, Shnewer, after much hesitation, told Omar that Shain knew about the plot, but not of Omar’s involvement.

As months passed, Shnewer tried to assure an increasingly skeptical Omar that the Duka brothers were on board with the developing plans. When Shnewer failed to provide proof of their actual involvement, Omar pressed harder, asking Shnewer to pursue the brothers, and Eljvir Duka in particular. Between August 11 and September 19, 2006, Omar asked Shnewer about Eljvir 197 times.

Finally, after months of failed efforts, Omar told his FBI handlers that, in his estimation, Tony and Shain Duka knew nothing about the plot and seemed to be more focused on taking care of their families.

“I’m saying it again, those Dukas, they didn’t tell me nothing,” he said in a recent phone call with The Intercept. When asked how the FBI responded to his view of the Dukas, Omar replied: “They said it was none of my business. I just wear the wire and record.”

As Omar struggled to link the Duka brothers to the plot he’d developed with Shnewer, the FBI decided to introduce another informant into the case.

Besnik Bakalli, a 29-year-old undocumented immigrant from Albania, was sitting in a Philadelphia jail awaiting deportation when the FBI approached him about becoming an informant. Agents showed him pictures of the Duka brothers and told him to meet them at a Dunkin’ Donuts in Cherry Hill, where the Dukas often went after Friday prayers at the nearby Palmyra mosque.
When the Dukas walked into the Dunkin’ Donuts on a Friday in July 2006, Besnik was talking on the phone loudly in Albanian. The naturally gregarious Dukas overheard him and introduced themselves, ultimately befriending the informant. The FBI’s plan to quietly integrate their second informant into the lives of the Duka brothers was unfolding successfully.

Over the course of the next ten months, Bakalli saw the Duka family often. Over dinner with the brothers, Lata and Firik, he portrayed himself as a down-on-his-luck fellow Albanian, recently divorced and in dire emotional and financial straits. “He told us a former friend of his tried to rape his sister,” Shain says. “He got out of prison, heard the news, and got in an altercation, which killed this individual. After this, he said his life was in jeopardy. He came to America illegally and now is in a foreign land, alone and homesick. This was Besnik’s story to the family.”

The family took pity on Bakalli and took him in as one of their own. Firik Duka, whose roofing business continued to grow, hired him to work a few shifts at job sites around New Jersey and Philadelphia. Lata even tried to help Bakalli find a wife with whom to settle down.

Bakali told the Dukas that he wanted to become a better Muslim, and the brothers agreed to help him. “This is when all the questions began to roll in,” Shain says. “What is jihad? Do we have to perform jihad? Me and my brothers did not take these questions as out of the ordinary. At that time all you heard on TV was jihad, terrorism, Islam this, Islam that. We thought he was just new and trying to understand, no red flags were raised!”

As they had both penetrated the same group of friends, Omar and Bakalli occasionally bumped into one another. Neither knew the other was an informant. “I hated the guy ? didn’t like the look of him at all,” Omar told The Intercept.

The boys trusted Omar and Bakalli. Omar bonded with the Dukas over cars, a topic the brothers obsessed over. Surveillance transcripts reveal conversations with both informants that ranged from food to family to work.

World events, particularly those that affected Muslims, also came up. The men often discussed their opposition to U.S. involvement in the wars in Iraq and Afghanistan, then at their peak. They talked about the perceived targeting of Muslim-Americans by law enforcement and debated what role, if any, Muslims living in the U.S. had in assisting other Muslims resisting American aggression. They often couched their discussions of these topics in religious terms.

Shnewer and Omar spent much of their time together watching jihadi videos and listening to radical lectures on tape, often playing them in the Dukas’ presence. The Dukas also watched these videos, sometimes responding positively. Tony got particularly riled up by a lecture called Constants of the Path of Jihad by Anwar el-Awlaki, a Yemeni-American who would later be killed in a U.S. drone attack. He played the audio for his brothers and Bakalli, and in what would later be characterized as evidence of his radical beliefs, was recorded saying, “This is the real truth, straight up, no holds barred!”

Yet the brothers never talked about an actual plan to commit an act of terrorism. Discussing the various forms of jihad, Eljvir asserted, on questioning from Bakalli, that the daily struggle against personal vices like greed and lust is the greatest form of jihad.

In a conversation on September 22, 2006, Omar told Eljvir that he and Shnewer had been working on a “plan,” without providing specific details. Eljvir told them they should seek out a fatwa, or an Islamic legal opinion. While the prosecution would attempt to frame this comment as Eljvir seeking religious authorization for the Fort Dix plot, Omar undermined this claim at trial, conceding under cross-examination that Eljvir was unaware of plans pertaining to Fort Dix.

In other conversations, Bakalli continually pressed the Dukas to “do something,” and shamed them for not taking some kind of action to defend Muslims. During one heated conversation with Bakalli, Tony was recorded saying that he was “going to start something,” and that “you can do a lot of damage, man, seven people.” This statement would later be held as a damning self-indictment of the brothers’ intentions, but again, it never translated into real follow-up action or planning.

Despite their best efforts, Omar’s and Bakalli’s attempts to get the Dukas to put radical ideas into action didn’t gain traction. A month after Tony’s angry statements, Bakalli tried to get him to firm up plans to “do something.” At this point, Tony essentially recanted his incendiary words:

“We can’t … we … the biggest Jihad for us here in America is to spread Islam … That’s the most important thing. That is war, believe me. That is Jihad. Jihad is not just, like we say, to go fight. No people misunderstand it. … The first Jihad is with yourself, when the devil tells you, do this, you try, you fight with the devil. No, no, no. I won’t do it. Then the second Jihad is with your family. To work. To teach Islam to your children. Then you should spread Islam in, to tell others, this is Islam.”

Bakali pressed, but Tony held firm. “Our biggest obligation for us is our family, especially for me with children,” he said.

In early 2007, the Dukas were joined by Bakalli, Shnewer and Omar on another “boys weekend” in the Poconos. The informants were promised horseback riding, hikes in the woods, “an epic game of paintball” and a shooting range. While playing paintball with Tony, Omar likened the game to military training. “This is like an army exactly,” he said, according to court testimony.

This second Poconos weekend, now infiltrated by two government informants, came and went without any discussion of a plot against military personnel. Instead, the brothers and their friends mostly spent hours watching videos of Eddie Murphy and Dave Chappelle stand-up comedy, in between horse riding and paint-balling.

At this point, roughly a year into the case, despite hundreds of hours of surveillance and the employment of two paid informants, the Dukas still had not been induced to commit any criminal act. The stakes were raised and an illegal gun deal was set up.

THE DUKAS LOVED guns; their Albanian heritage extolled firearms as a virtue of masculinity. “In Albania everybody has a gun in the house,” says Firik. “It’s normal for any man to have one there.”

Omar knew about the brothers’ enthusiasm, and he also knew that without proper immigration documents they couldn’t legally buy firearms in the U.S. It was a sore spot for the Duka brothers, all of whom had tried to apply or were in the process of applying for asylum status. In the Poconos, unlike other visitors who owned personal firearms, the Dukas had to wait in line for rentals at the shooting range.

In March 2007, Omar approached Tony with an offer: a friend in Baltimore with a gun shop was looking to make some under-the-counter sales of guns valued at the discounted price of $500 apiece. This offer was too good to pass up, and after being assured that this guy was “legit,” Tony agreed to take look at what Omar’s friend had in stock.

The boys knew the transaction wouldn’t be legal. “Being an illegal alien did prevent us from purchasing our own guns legally,” Shain says. “At the time, me and my family were in the immigration process. We even hired a lawyer, and we were going to do papers properly when that was done. We always believed that these guns could be transferred legally to my name once we received our papers.”

In a separate conversation that same month, Omar spoke with Shnewer without the Dukas present.

Mahmoud Omar: By the way, I want to ask you a question, I want you to tell me seriously. Eljvir and Tony, do they know, for example why we’re getting the handguns or … ?

Mohamad Shnewer: Yeah, of course.

Mahmoud Omar: Don’t tell me you didn’t tell them, Mohamad.

Mohamad Shnewer: Yeah, they know.

Mahmoud Omar: That we, for example, are training in anticipation for something like this in the future?

Mohamad Shnewer: Yeah!

On March 28, 2007, Omar provided Tony with a list of available weapons from his fictional Baltimore source. This list had in fact been created by the FBI. Inexplicably, in addition to AK-47s, handguns and M16 rifles, it also included heavy weapons like a rocket-propelled grenade launcher ? used to destroy tanks and other armored vehicles ? as well as an M-60 machine gun. Burim, who was 15 at the time, remembers Tony coming home and wondering how Omar’s guy could be “legit” if he was selling RPGs and M-60s, which are heavily regulated in the United States.

On April 6, 2007, Tony went back to Omar and told him that he was interested in the AK-47s, the M-16s and the handguns, but not the heavy weapons. In a recorded conversation, he expressed concerns:

Tony Duka: Is there something I need to know?

Mahmoud Omar: Like what?

Tony Duka: Who … that list, there was some stuff on that list that was heavy shit … the RPG …. Yeah, with rockets. That’s why if you know something I don’t know, ah, please tell me man.

Omar assured Tony that his friend in Baltimore was trustworthy.

On May 7, 2007, Tony and Shain met Omar at his apartment, which had been paid for that month by the FBI. As the brothers inspected the firearms they planned to purchase, audio recordings reveal Tony commenting, “Now we don’t have to wait in line to shoot in Poconos.”

Minutes later, police burst into the apartment and wrestled Tony, Shain and Omar to the floor. “I had no idea what was going on when it happened,” Shain wrote from prison. “I assumed we were being arrested because of the guns, which I knew we were buying from Mahmoud illegally.”

The men were put into police cars and eventually taken away to a Philadelphia detention center.

While Shain and Tony were being arrested at Omar’s apartment, Burim and Eljvir were driving home after taking Tony’s five kids to a Mister Softee for ice cream. As they pulled up to Tony’s apartment, they noticed police cruisers and SWAT vans surrounding the building. Burim got out of the car to ask an agent what was going on, and both he and his brother were handcuffed.

Eljvir was transferred to the same detention center as Shain and Tony. The teenage Burim was not arrested, but left handcuffed under a tree while officers searched Tony’s apartment. Burim recalls an armed agent telling him, “Don’t grow up to be like your brothers.” He later added, “You should think about finding yourself a new religion.”

Tony, Shain and Eljvir spent the night wondering how they were going to get out of what they assumed would be gun charges.

The next morning, the brothers, along with Tatar and Shnewer, who had been seized in separate raids, were driven in a black-tinted police van past throngs of reporters and cameramen to the federal courthouse in Camden, New Jersey.

Inside, they were presented with a criminal complaint accusing them of conspiracy to murder U.S. military personnel. “I was confused at first, but for the most part I breathed easy when I saw that,” Shain says. “I figured they mixed us up with someone else and we’d be out of here as soon as we cleared things up.”

As Shain remembers, the boys were taken to a holding cell and instructed to read through the complaint in its entirety. Shain read aloud to the group. The complaint consisted almost entirely of Mohamad Shnewer’s private conversations with Mahmoud Omar. “After reading it we all turned to Shnewer,” Shain says. “Is this really true!? You went to a military base, you said this and that!? Who the hell is Confidential Witness #1?! Mahmoud Omar was an informant? Unbelievable! We were all pissed at Shnewer.”

It became clear to the brothers that Shnewer, in his conversations with Omar, had committed them to taking part in a “plot” to attack Fort Dix without their knowledge.

The five men were charged with conspiracy to attack military personnel, as well as with weapons offenses for the guns they had attempted to purchase from Mahmoud Omar.

At a press conference announcing the indictments, U.S. Attorney Chris Christie praised law enforcement for stopping an impending threat, painting a dark portrait of the alleged plotters. “Believe me, too,” he said. “These people were ready for martyrdom. They spoke about martyrdom extensively in the tapes. They said they were to do this in the service of Allah.”

THE DUKAS WERE arrested in the spring of 2007, but not brought to court until the fall of 2008. In the interim, the brothers were held in pretrial solitary confinement at the Philadelphia Federal Detention Center. “The prison guards would ransack our cells and throw our Quran on the floor, but leave the rest of stuff alone,” Shain recalls. “We quickly realized that they were actually being serious about this.”

In opening arguments for the trial, presented in October 2008, the prosecutors’ case relied heavily on the two key informants. Omar was eventually paid $238,000 for his efforts, while Bakalli, who earned a minimum of $1,500 a week for his involvement, seems to have received additional benefits. He was facing deportation to Albania, where he had been involved in a shooting, and testified that in exchange for his cooperation with the FBI, he was allowed to remain in the U.S. The Albanian government also pardoned him.

Before proceedings commenced, New Jersey District Judge Robert B. Kugler granted a motion by prosecutors to keep the names of the jury anonymous, agreeing with the government that the trial represented an exceptional case requiring protection of the jurors’ identities.

At trial, Assistant U.S. Attorney William Fitzpatrick argued that the Duka brothers had been inspired by jihadist ideology. “Their motive was to defend Islam,” he told the jury. “Their inspiration was al Qaeda and Osama bin Laden. Their intent was to attack the U.S.”

The government set out to prove that between January 2006 and May 2007, each of the Duka brothers had entered into a conspiracy to murder members of the U.S. military. Prosecutors wouldn’t necessarily find a formal, written or oral agreement spelling out the details of the understanding. They just needed to demonstrate, based on the brothers’ “state of mind,” that the Dukas had knowingly and willfully entered into an agreement, and that at least one of the brothers had performed an overt act to further the agreement.

As was written in the jury instructions:

“Often the state of mind with which a person acts at any given time cannot be proved directly, because one cannot read another person’s mind and tell what he or she is thinking. However a defendant’s state of mind can be proved indirectly from the surrounding circumstances. Thus, to determine a particular defendant’s state of mind at a particular time, you may consider evidence about what the defendant said, what he did and failed to do, how he acted, and all the other facts and circumstances shown by the evidence that may prove what was in that defendant’s mind at that time.”

Since the Dukas were never recorded agreeing to take part in Shnewer’s and Omar’s plot to attack Fort Dix, the government had to prove they were still involved in other, more indirect ways.

For example, the court allowed into evidence the recording of Tony Duka saying he was “going to start something.” In future recordings, he seemed to repudiate this statement, saying, “the biggest Jihad for us here in America is to spread Islam.” But, as mere hearsay, the judge did not allow this statement or others to be presented to the jury unless the defendants were allowed to be cross-examined, meaning Tony would have had to give up his right not to testify. Even though the brothers wanted to take the stand, their lawyers urged them not to do so.

Prosecutors for previous U.S. terrorism cases have sought to establish participation in a conspiracy by displaying videos or websites found on a defendant’s computer that show frightening Islamist propaganda. Mahmoud Omar, during the time he spent with the Dukas’ co-defendant Mohamad Shnewer, asked Shnewer to download many of these videos, which the Dukas sometimes also watched. The prosecution played these videos to the court over the course of several days.

Shain described one juror’s reaction to a lengthy video pulled from Shnewer’s computer of U.S. soldiers being killed in battle by insurgent snipers: “Juror No. 3 got up from her seat before exiting for the break, gave us all a stare of death, turned around and slammed the binder of transcripts.” Juror No. 3, whose name remained concealed, would later tell the Philadelphia Inquirer that it was difficult for her to watch the video because her own son was a marine who had served two tours of duty in Iraq. “I thought I was seeing my son getting hit,” she told the paper.

The prosecutors claimed these videos, along with the Anwar al-Awlaki tapes, which the Duka brothers listened to in the presence of government informant Mahmoud Omar, served as inspiration and guidance for the Fort Dix operation.

To demonstrate this connection, the prosecution called Evan Kohlmann to the stand as an expert witness on Islamic terrorism and the use of digital media to promote terrorism. Kohlmann, who in 2014 was featured in a Human Rights Watch report on dubious terrorism prosecutions, testified that the defendants had been watching “some of al Qaeda’s best work,” and that their consumption of the videos suggested “a clear, considered, and present danger to the community.”

Yet Kohlmann’s analysis has come under considerable scrutiny in recent years. Fawaz Gerges, a professor of international relations at the London School of Economics, told New York magazine, which profiled the self-styled terrorism expert, that Kohlmann was in the “guilty verdict industry.” In an email to The Intercept, Gerges explained that prosecutors consider Kohlmann a “hired hand,” willing to say “whatever it takes” in front of a jury to help secure convictions.

During his testimony, Kohlmann portrayed the acquisition of guns from Mahmoud Omar, in addition to the heated statements the Dukas made about American foreign policy, as evidence of jihadist activity. As for the dearth of evidence substantiating an actual plot, Kohlmann told the jury, “It doesn’t take a lot of sophistication to kill people. Ultimately, it comes down to intent.”

On December 22, 2008, after six days of deliberation, the jury found the Duka brothers and their two friends guilty of conspiracy to kill members of the U.S. military at Fort Dix.

In determining sentences for federal crimes, judges take into account as a starting point the guidelines issued by the U.S. Sentencing Commission. The guidelines have “adjustments” that can be enacted at the judge’s discretion, which can fundamentally change the duration of a sentence. Among these, the terrorism adjustment has the most drastic effect of lengthening sentences.

The Dukas had been found guilty of one count of conspiracy to commit murder and three counts of illegal firearm possession. On those charges alone, they might have faced sentences of up to 24.5 years. But the prosecution requested that Judge Kugler apply the terrorism adjustment, which would dramatically increase that time.

On January 26, 2009, Judge Kugler received a handwritten letter from Mohamad Shnewer, who was awaiting sentencing in solitary confinement at the Philadelphia Federal Detention Center. In his letter, Shnewer described “boastful” discussions with the government informant and confessed to making “lies and allegations” about the Duka brothers’ knowledge of the Fort Dix plot. They were “clueless” about this plan, he wrote.

In April 2009, the Dukas, Tatar and Shnewer were brought before Judge Kugler for sentencing. Shain stood before the court and spoke out against the verdict. “A lot of money has been spent. Millions have been spent on this case. As if money has brought the truth of the matter,” Shain said. “We have stressed over and over again that they’ll lock you up for nothing, they’ll build a case on you. Today we have become victims of what we stressed so very often.”

Delivering Shain’s sentence, the culmination of a terrorism case that had lasted over two years, Judge Kugler said, “It’s not my place or desire at this time to review all the evidence … Suffice to say this defendant was in the middle of this plot. I’m realistic, I remember that they weren’t being taped 24 hours a day seven days a week.”

Brushing off the lack of direct evidence, Kugler added: “That there isn’t more explicit evidence does not concern me and obviously didn’t concern the jury either … I cannot deter this defendant, because of his belief system, from further crimes.”

Shain and Tony were sentenced to life in prison, plus 30 years. Eljvir, who was not convicted of the firearms offenses, received life in prison.

In a public statement made after the Dukas’ sentencing, acting U.S. Attorney Ralph Marra said, “The hatred and contempt these young men hold for America and the rule of law was made abundantly clear.” The life sentences were appropriate, he argued, to “protect the public from them and their deeply held, radical beliefs.”

IN THE YEARS since the convictions, the lives of the Dukas and Chris Christie, the U.S. attorney who prosecuted the brothers’ case, have taken vastly different trajectories. Christie won his race for governor, and is now a likely contender for the Republican presidential nomination.

Christie often cited the Duka case as a highlight of his career. In a 2012 speech to the American-Israel Public Affairs Committee (AIPAC), Christie recalled his success in the “uncovering of a plot to kill American servicemen and women,” telling a packed audience at the New York Hilton Hotel that he helped send to prison a group of “Muslim men practicing with semi-automatic weapons and screaming about jihad against the infidels.” Today, both the Republican Governors Association and the New Jersey Republican Party list the Fort Dix case as “one of Christie’s finest moments” under his biography.

Meanwhile, the Duka family is struggling. Tony’s five children are growing up without a father. Lata and Firik are faced with raising their grandchildren on their own. Burim, the youngest Duka brother, now 24, and the only one to escape entanglement in the case, dropped out of school to become the family’s primary breadwinner. The Dukas believe they have remained under surveillance. Firik says the FBI once came to the house and threatened to take Burim away. “We lost so much, and today we are barely surviving,” he says. “We live with broken hearts.”

While Shain is imprisoned at a high-security facility in Kentucky, Tony and Eljvir are being held at the infamous ADX Supermax prison in Florence, Colorado, which houses some of the nation’s most dangerous criminals and has famously been described as “a clean version of hell.” Tony and Eljvir have both spent portions of their sentences in solitary confinement, and Eljvir remains in isolation. Despite being locked up in the same prison for years, the two have never seen one another. Without the terrorism adjustment, they might have been released as middle-aged men. With it, they will likely die in prison.

Having exhausted all appeals, the brothers are filing a 2255, or writ of habeas corpus, which is a motion to set aside a sentence on the grounds that it was imposed in violation of federal law. Their appeal hinges on the argument of ineffective performance by their public defenders, but such appeals are rarely successful.

Far away from home, Shain, Tony and Eljvir’s periodic phone calls across the country are their only remaining link with their families. They say they find strength in God and knowledge of their innocence. Eljvir ends every call home with, “God willing, we will be reunited soon, not only in the next life, but this one too.”

Years later, the brothers still look back with incredulity at the events that led to their present situation. The needy friends exposed as government informants, the high-profile arrests and terrorism charges, and finally the life sentences that permanently altered the course of their lives. “We had plans for the future, we were expanding our business just weeks before, our families were growing,” Shain says. “Now, suddenly, we have been buried alive.”

More than seven years after the trial, the person who was arguably the most critical in securing the convictions still agonizes over his role in the case. In a recent interview with The Intercept, Mahmoud Omar, the informant, maintains that while Mohamad Shnewer was involved in the Fort Dix plot, the Dukas, whom he describes as “good people,” were innocent.

“I still don’t know why the Dukas are in jail,” he says.