United States of America v. Arafat Nagi

Court	United States District Court for the Western District of New York, United States, United States
Case number	254 F.Supp.3d 548
Decision date	23 May 2017
Categories	Terrorism
Keywords	Foreign fighters, Preparatory Acts, Providing material support, Provision of material support for terrorism, Social Media, Syria, Terrorism, Terrorist group
Links	Judgment of the United States District Court for the Western District of New York
Other countries involved	Syria Turkey Yemen

Summary

Arafat Nagi is an American citizen who resided in Lackawanna, New York, prior to his arrest. From 2012-2014, Nagi demonstrated support and sympathy for ISIL and the situation in Syria through social media, electronic communications with family members, and conversations with other associated individuals. He also purchased combat gear. During this time, he travelled to Turkey twice, which the U.S. alleged was with the goal of ultimately traveling to Syria to join ISIL as a fighter. While Nagi claimed he was visiting family, his iPad search history and travel plans indicated otherwise.

The U.S. arrested and detained Nagi soon after his return from Turkey and Yemen in 2014 and charged him with attempt to provide material support to ISIL.

Nagi argued the case should be dismissed because he was protected by the First Amendment. However, the district court held that the defendant’s attempt to join a foreign terrorist organization amounted to actions not protected by the First Amendment, which does protect advocacy or association with terrorist organizations. The district court found Nagi’s travel, communications, and purchase of combat gear sufficient to demonstrate an intent to provide support – in the form of himself – to ISIL.

Procedural history

The defendant was arrested in Lackawanna, New York in July 2015 after trips to Turkey in October 2012 and from 24 July to 19 September 2014 (p. 553).

In a 31 July 2015 initial detention hearing, the United States moved for detention of the defendant based on social media, acquisition of military gear, and travel plans. The defendant argued his travel was legal and that speech or rhetoric in support of ISIL did not show he would convert such speech or rhetoric into action. The district court ruled that the defendant was a danger to the community and a flight risk and granted the U.S. government’s motion for detention. https://www.leagle.com/decision/infdco20150803823.

A grand jury indicted the defendant with two counts of attempting to provide material support to ISIL, in violation of 18 U.S.C. § 2239B(a)(1) (p. 555).

After pre-bail hearings at the U.S. Magistrate Court, the U.S. Magistrate Court recommended denying the defendant’s motions to dismiss and to suppress and granted in part the defendant’s motion for a bill of particulars (p. 553).

Before the district court, the defendant objected to the U.S. Magistrate Court’s denial of his motions to dismiss and supress. Concurrently, the United States appealed the U.S. Magistrate Court’s order for particularity (pp. 553–556).

Related developments

On 22 January 2018, the defendant pled guilty to the U.S. District Court, W.D. New York for providing support to the ISIL. He is scheduled to be sentenced by the U.S. District Court, W.D. New York on 7 May 2018.

‘Man pleads guilty to providing support to ISIS,’ New York Post, 23 January 2018.

Legally relevant facts

From 2012-2013, the defendant purchased numerous pieces of combat gear from eBay (p. 555). The defendant consistently tweeted or retweeted messages and videos on his Twitter account expressing support and interest in ISIL (p. 555).

The defendant made trips to Turkey in 2012 and 2014 (p. 553). Communications between the defendant and family members, including his sister and cousin, expressed a sympathetic position towards ISIL (pp. 553, 556).

Regarding his 2014 trip, the defendant alleged he was planning to travel to Turkey and then Yemen, but his flight was booked to Yemen, and his electronic search history demonstrated otherwise, including extensive plans and bookings for travel in İskenderun, Turkey, a key location in the Syrian conflict due to its proximity to the border. He was in Turkey for 10 days and then travelled to Yemen for over a month (p. 554).

During his 2014 trip, the defendant viewed ISIL-related content on his iPad and researched the Turkish National Intelligence Organization because he allegedly thought he was being followed (p. 554). He conversed with an unnamed associate expressing a sympathetic position towards ISIL and discussing plans to travel to Syria (p. 555).

Core legal questions

Was the defendant’s attempted “support” to ISIL – by associating with, or attempting to join, a foreign terrorist organization – protected by the First Amendment of the US Constitution?

Specific legal rules and provisions

18 U.S.C. § 2239B(a)(1)

Court's holding and analysis

On the defendant’s motion to dismiss the indictment, the district court found the First Amendment did not protect the defendant’s attempt to provide himself as “personnel” to a foreign terrorist organization. The district court drew a distinction between speech protected by the First Amendment – advocacy or expression of solidarity with or intent to become a member of a terrorist organization – and actions the First Amendment does not protect – “an illegal effort to volunteer or work for a foreign terrorist organization” (pp. 556-560).

This finding was based on presentation of evidence of the defendant’s purchase of combat gear, travel to Turkey with the alleged intent of entering Syria to join ISIL. The district court determined that the defendant was not being charged with mere association with a terrorist organization but rather with action to provide himself. (pp. 559–560)

On the defendant’s motions to suppress, the district court found the defendant’s objection to the U.S. Magistrate Court’s recommendation to suppress the evidence lacked enough specificity to be proper, and as a result, the defendant waived his right to object (pp. 561-562).

Finally, the district court vacated the Magistrate judge’s order for a bill of particulars, stating this determination could only be made after trial (pp. 564-565).