Prosecutors have taken the rare step of asking a federal judge to shut out the public during the testimony of two FBI undercover employees at an upcoming Miami trial of a Kenyan man accused of funneling money to al-Qaida splinter groups.
The public, including the media, would be allowed to watch their testimony on closed circuit TV in a separate room in the downtown courthouse — but their images would be obscured in some manner during the terrorism trial.
Prosecutors also want to allow the witnesses to be lightly disguised, such as wearing a closely cropped beard and black-rimmed glasses. One CIA officer did that during the 2007 Miami trial of al-Qaida recruit Jose Padilla. And they want the witnesses to use undercover pseudonyms to protect their true identities.
The goal, sought by the FBI, is to safeguard the bureau’s counterterrorism operatives and investigations.
“The defense shall be prohibited from asking any questions seeking personal identifying information from or about the [undercover employees],” the U.S. attorney’s office requested in a motion filed in February.
The defense attorney for Mohamed Hussein Said, arrested in his native country after being targeted by an Internet sting operation based in Miami, views the government's demands as a violation of her client’s constitutional right to a fair trial — akin to a star chamber.
Miami attorney Silvia Piñera-Vazquez countered in a court response that the “government’s actions in this case are eerily similar” to the prosecution described in Franz Kafka’s The Trial.
In the classic novel, the attorney noted last week, “a bank teller was arrested and prosecuted by a remote, unidentified authority, of an unidentified crime, by unidentified witnesses, and eventually executed.”
Piñera-Vazquez argues that expelling the public from the courtroom during the testimony of the “secret” witnesses and prohibiting any questions about their true identity “insulates” them from “any meaningful cross-examination, thus creating a unilateral, secret prosecution.”
Last year, at a federal terrorism trial in Tampa, a judge fashioned a compromise after the Tampa Tribune objected to the prosecution’s efforts to bar the public during the testimony of an undercover employee. The arrangement allowed for an open courtroom, but with the employee testifying behind a screen so that no one in the gallery could see the witness.
The Miami terrorism case was unveiled in August 2013, when Said and co-defendant Gufran Ahmed Kauser Mohammed were charged with conspiring to provide material support to U.S.-designated terrorist organizations. The charges resulted from a Miami-based investigation involving an FBI employee who had allegedly engaged the men in an online financial scheme to back three al-Qaida groups overseas.
Mohammed, 31, and Said, 27, were accused of plotting to provide a combined total of about $25,000 to the terrorist groups. Mohammed, who once had lived in California, and Said, who had resided in Mombasa, were arrested in Saudi Arabia and brought to Miami by FBI agents.
Mohammed eventually pleaded guilty and in December was sentenced in Miami federal court to the maximum 15 years in prison.
Prosecutors Rick del Toro and Brian Frazier argued that Mohammed, who holds a master’s degree in computer science, possessed “a deep hatred for the country that provided him shelter, citizenship and education” and that “his intent was to kill innocent American civilians,” according to court papers.
Said, who is being held without bond and pleaded not guilty, is set for trial in early May before U.S. District Judge Ursula Ungaro. His defense attorney, Piñera-Vazquez, maintains that authorities have accused the wrong man and that he never communicated online with the FBI undercover employee to support al-Qaida’s terrorist missions.
The Miami-based FBI employee posed as a brother and a sister who supported al-Qaida as a way to communicate in an Internet chat room with the two men overseas, according to an indictment. The men were accused of plotting to finance the terrorist group’s battles in Syria and Somalia.
The “online covert employee” assumed the role of the brother, saying he was an al-Qaida fighter. Then he switched to playing the sister, saying she could help collect money for the terrorist group.
According to the indictment, Mohammed and Said met in Saudi Arabia in May 2011 and agreed to provide financial and other resources to an al-Qaida affiliate, al-Shabab, which was seeking to overthrow the U.S.-backed transitional government in Somalia.
Through September of that year, Mohammed allegedly wired Said more than $11,000 via Western Union to back al-Shabab, the indictment stated.
In April 2012, the FBI undercover employee established online contact with Mohammed, according to the indictment. Mohammed arranged to send a series of Western Union wire transfers totaling more than $9,000 through November to the FBI employee. The funds were intended for another al-Qaida affiliate, the Nusra Front, which is fighting the government of President Bashar Assad in Syria.
In December 2012, Mohammed met in Saudi Arabia with a purported associate of the Miami FBI employee and gave him 14,400 Arabian riyals, worth about $3,800, which also was meant to support the Nusra Front, the indictment said.
The Miami FBI employee eventually contacted Said, after Mohammed made introductions over the Internet, according to the indictment. In February 2013, Said contacted the undercover employee and stated in writing that “he had a recruit who would be willing to conduct a martyrdom operation within the United States like one of ‘the 19.’’’
Del Toro, the prosecutor, said that was a reference to the 19 hijackers who participated in the Sept. 11, 2001, terrorist attacks.