Terrorism Trials: Civilian Court

United States v. Mahamud Said Omar: An Important New Al-Shabaab Case in Federal Court

By Robert Chesney
Monday, August 15, 2011, 3:38 PM

This is a nice illustration of the fact that in at least some circumstances, the United States simply must use civilian criminal courts if it wants to have its hands on a terrorism-related suspect--not to mention the fact that this approach in at least some cases can provide relatively swift and certain just, and quite possibly a lot of cooperation as well. 

The case is not unlike the much-discussed (and frequently critized) Warsame scenario, in that it involves a Somali man engaged in supporting al-Shabaab.  To be sure, Warsame was also linked to AQAP, whereas there is no such claim so far as I know as to Omar.  But on the other hand, Omar allegedly was involved quite directly in the infamous--and quite successful--recruitment of young Somali-American men from the Minneapolis region.  In any event, the first important thing to note about the Omar case is that there almost certainly was no alternative to charging him in civilian court.  He was arrested in the Netherlands, after all, and as we saw previously with the Delaema case, the Dutch are not likely to extradite if we plan to hold someone in military detention or use a military commission.  This alone ought to be enough to stop Congress from passing legislation that would categorically bar civilian prosecution in all cases where military detention or a commission proceeding might also be a possibility. 

Another interesting point: if the press release below accurately captures the indictment, it seems that Omar is charged not just with material support but also with his own participation in a conspiracy to kill outside the United States, under 18 USC 956(a).  Why is that interesting?  Simply because it illustrates the broad conception of conspiracy that has become a typical feature of post-9/11 terrorism prosecutions (see, e.g., Jose Padilla).  That is, there is no claim that Omar was part of some particular plot to kill some particular person or to carry out some particular act.  The idea, rather, is that Omar, his recruits, and his other al-Shabaab colleagues were collectively participating in a broad agreement to kill unlawfully, with the details of course to be pinned down much later on.  This approach makes conspiracy much more useful as a prevention-oriented criminal charge, of course, than an alternative that required some specificity as to the anticipated killing.  Of course, in this instance there also is a material support conspiracy charge (18 USC 2339A, it seems), but it is the 18 USC 956(a) charge that carries the potential for a life sentence (and which therefore provides the most leverage in terms of inducing Omar's cooperation, something the government presumably is quite eager for given his possible knowledge of the fate of the many young men from Minneapolis who went abroad to join al-Shabaab. 

In any event, here are details from the press release:

MINNEAPOLIS—Earlier today in federal court in Minneapolis, Mahamud Said Omar made his initial appearance on charges related to supporting al-Shabaab, a U.S.-designated foreign terrorist organization with ties to al-Qaeda.  He appeared before U.S. District Court Chief Judge Michael J. Davis. 

On Aug. 20, 2009, Omar, age 45, formerly of Minneapolis, was indicted in federal court in the District of Minnesota with conspiracy to provide material support to terrorists and foreign terrorist organizations as well as conspiracy to kill, kidnap, maim and injure persons abroad.  Omar, also known as Mohamud Said Omar and Sharif Omar, was arrested in the Netherlands in November of 2009.  He was extradited from the Netherlands to the United States earlier this week. 

The 2009 indictment states that from September of 2007 through August of 2009, Omar, a Somali citizen who is a lawful permanent resident of the United States, conspired with others to provide financial assistance as well as personnel to al-Shabaab. Court documents allege that Omar gave money to young men so they could travel from Minneapolis to Somalia to train with and fight for al-Shabaab.  Omar also allegedly visited an al-Shabaab safe-house in Marka, south of Mogadishu, where he provided the Minneapolis men with hundreds of dollars for the purchase of AK-47 assault rifles to use in their efforts. 

This case arose out of “Operation Rhino,” an investigation that focused on the disappearance of young ethnic Somali men who lived in the Minneapolis area and were ultimately found to have been recruited to fight with al-Shabaab back in Somalia.  The earliest groups of identified “travelers” departed the United States in October and December 2007, while others left in February 2008, August 2008, November 2008, and October 2009.  Upon arriving in Somalia, the men resided in al-Shabaab safe-houses in Southern Somalia until constructing an al-Shabaab training camp, where they were trained by senior members of al-Shabaab along with a senior member of al-Qaeda.