What is the NSCDC?
The National Security Criminal Defense Center (NSCDC) is the product of MLFA’s 25 years of experience providing expert pro bono legal representation in select federal criminal terrorism-related cases. The NSCDC is an expansion that allows MLFA to:
- Expand its ability to offer expert assistance and representation in critical national security cases to ensure quality representation,
- contribute important policy comments and proposals on federal criminal national security issues,
- and provide thought leadership on our areas of expertise to reform federal national security over-criminalization.
Why
National security criminal defense presents unique challenges to the fair adjudication and sentencing of persons accused of terrorism-related offenses.
- The majority of national security prosecutions arise from undercover sting operations, but unlike an ordinary sting operation, these operations are initiated without any evidence of prior or ongoing unlawful activity.
- National security investigations target individuals without any criminal history, and increasingly involve minors and persons with intellectual disabilities who would be unable to commit a crime without the assistance of the FBI.
- Pre-trial detention without bond is presumed, unlike most other criminal cases.
- The evidence in these cases is presumptively classified, resulting in prolonged pre-trial delay and compromising the ability to fully investigate the case.
- The courtrooms where these trials are held are often closed, compromising the constitutional rights to a fair and open trial.
- The juries, after 20 years of media and governmental demonization of Muslims as terrorists, are predisposed against the defendants.
- Finally, when it comes to sentencing, the terrorism enhancement, applicable in almost all cases, recommends a minimum sentence of 17.5 years, but often 360 months to life (or the statutory maximum). This hangs over every national security prosecution, placing immense pressure to plead guilty.
Retained and appointed defense counsel are also out-resourced. Due to the complexity and sensitivity of national security cases, the local U.S. Attorney’s office, and FBI Counterterrorism Division are supported by Department of Justice (DOJ) Attorneys in the National Security Division. The result is that the scales of justice are tilted significantly in the government’s favor. The NSCDC seeks to balance those scales.
How Do We Help and What Do We Do:
Services for Individuals
- Pre-Indictment Representation (attorney representation in an FBI interview/investigation): The FBI investigates hundreds of Muslim-Americans every year for terrorism-related offenses. The vast majority of these investigations do not result in direct prosecutions for terrorism offenses. Instead, the most commonly charged crime is false statements made to the investigators, or other obstruction-related crimes. To combat this, MLFA provides pre-investigation representation. Over the past 10 years, MLFA’s attorneys have provided pre-trial investigation assistance to more than 250 clients. Of those clients, only two were ultimately indicted.
If you have been contacted by the FBI or a member of the counterterrorism requesting an interview, we strongly suggest that you have counsel. - Post-Indictment Representation (attorney representation in your federal criminal terrorism-related case) in a National Security case: The NSCDC’s preferred method of post-indictment representation is by partnering with appointed or retained counsel, either as an expert consultant or as co-counsel. MLFA attorneys also provide direct representation in select post-indictment cases.
Services for Attorneys
Attorney Partnering: The NSCDC seeks to balance the scales by providing assistance to appointed and retained counsel that is equivalent to that provided by the National Security Division of DOJ to local Assistant U.S. Attorneys. The NSCDC can act as co-counsel, expert counsel, or an expert consultant in your national security case.
Areas of Assistance:
- Pre-Trial Detention: Most national security charges carry a presumption of detention, but over the past 20 years, MLFA attorneys have been able to secure pre-trial release for approximately 25% of our clients. We offer assistance to local counsel in preparing effective opposition to pre-trial detention and/or requests for reconsideration. Including, where appropriate, drafting appealing pre-trial detention orders to Circuit Courts of Appeal.
- Discovery: National security cases present unique discovery challenges. The FBI counterterrorism taskforce that investigates these cases in matters of national security and the products of the investigation are therefore presumptively classified. Two statutes, the Foreign Intelligence Surveillance Act (FISA) and the Classified Information Procedures Act (CIPA), govern the collection of information and the use of the information in court. Even when declassified, the information is considered law enforcement sensitive and discovery is quite often heavily redacted, making it difficult to review and understand. Successfully navigating these issues is critical to trial success, MLFA attorneys have significant experience in pre-trial litigation of discovery matters, involving FISA and CIPA, and can provide assistance in drafting discovery requests, motions to compel, and CIPA notifications.
- Expert Assistance: Most national security cases involve alleged support of a foreign terrorist organization involved in an ongoing armed conflict, often involving religious speech. To explain the charges to the jury, the government relies on experts. MLFA attorneys have both expertise in the subject matter of these expert’s testimony and experience in challenging them, either through Daubert motions and/or cross-examination and/or identifying defense experts.
- Undercover Informants: The government seeks to withhold all information concerning the undercover informant and prevent cross-examination on any areas concerning their expertise or background (despite there being no risk to their safety). Additionally, the government routinely seeks to close the courtroom during their testimony and have the undercover testify in disguise, or from behind a screen. These measures prejudice the defendant by both limiting their ability to confront the evidence against them and creating an atmosphere of fear in the courtroom. MLFA attorneys have experience in litigating the scope of discovery and cross examination, combatting the prejudicial aspects of the manner in which their testimony is delivered. Effectively confronting the undercover operative is critical.
- Sentencing: National Security cases are not just different in the pretrial and trial phases, they are also different when it comes to sentencing. Most defendants convicted of a national security crime involving terrorism face application of the draconian and discriminatory terrorism enhancement, which adds 12 levels to the seriousness of the offense and treats the defendant as a Category six (career offender) for purposes of the sentencing guidelines. The result is that the recommended guidelines sentence is in many cases is 360 months to life. Despite the sentencing guidelines, MLFA’s average sentence in its cases is less than 7 years (84 months).
MLFA achieves these results through successfully challenging the applicability of the enhancement, developing effective mitigation cases, and utilizing mental health professionals to rebut the narrative of the threat posed by the defendant. MLFA attorneys routinely assist counsel throughout the country in drafting and arguing objections to the terrorism enhancement, identifying relevant experts, and preparing sentencing memorandums. MLFA also advises on effective plea negotiation with a focus on terrorism sentencing.
Services for Humanitarian Organizations and Individuals providing International Humanitarian Aid
- Compliance advice for foreign humanitarian aid organizations regarding sanctions, material support of terrorism, and other criminal compliance concerns.
- The NSCDC consults and advises non-profit organizations fundraising for, partnering with, or conducting services on the ground in areas with U.S.-designated foreign terrorist organizations, or under a U.S. sanctions regime (e.g. Palestine, Syria, Afghanistan, Iran, Iraq, Yemen, Sudan etc.) on compliance.
- Compliance advice for individuals regarding sanctions, material support of terrorism, and other criminal compliance concerns.
- The NSCDC consults and advises individuals fundraising for, partnering with, or conducting services on the ground in areas with U.S.-designated foreign terrorist organizations, or under a U.S. sanctions regime (e.g. Palestine, Syria, Afghanistan, Iran, Iraq, Yemen, Sudan etc.) on compliance.
- Grand Jury and Investigative Representation of Non-Profit Organizations
- The NSCDC represents select non-profit organizations in grand jury and other criminal investigations.
Training: MLFA provides training to community members to build understanding and promote compliance with terrorism related laws, training for attorneys in representing Muslim clients facing terrorism charges and for organizations seeking to engage in overseas humanitarian work where U.S. designated terrorist organizations are present.
NSCDC Issues
With over 25 years of experience in representing individuals in federal national security cases and investigations, the NSCDC has identified the trends and unique issues that make these cases particularly difficult to defend. The NSCDC offers legal assistance and training to attorneys and individuals with these cases on the following issues.
Criminalization of Political & Religious Speech - Material Support, Threats & Incitement
Muslim speech is unfairly viewed and charged under true threats statutes (i.e., 18. U.S.C. 875(c), 18 U.S.C. 115(a)(1)(B) etc.)
Foreign Terrorist Organizations & Material Support - Personnel, Resources & Services
18 USC § 2339B statute prohibits any form of support to a designated foreign terrorist organization.
National Security Jury Trials
National security cases are handled by federal prosecutors and often involve complex legal issues. MLFA defends individuals in these cases, addressing concerns such as surveillance, fairness, and bias in the legal process.
NSCDC Cases
With over 25 years of experience in representing individuals in federal national security cases and investigations, the NSCDC has identified the trends and tactics used in these cases and developed robust defense strategies and briefing to address them. Our cases demonstrate the novel issues and trends in national security prosecutions, and the importance of specialized defense assistance.
USA v. Baptiste
Samuel Baptiste was targeted by the FBI in an undercover sting operation. The operation was abruptly concluded when Baptiste identified two of the undercover operatives as FBI employees.
USA v. Fong
Mr. Fong was 25 when he reverted to Islam in January 2020. After he reverted, an investigation into him was immediately opened, and he was targeted by state and federal undercover online operatives.
United States of America v. Georgianna A.M. Giampietro
A mother of two and a child therapist, Ms. Giampietro was moved by the plight of the Syrian children who had become victims of the civil war. Her activism led her to convert to Islam in 2014.