From the Idaho Statesman
Prosecutors want to hide two witnesses behind a screen in an upcoming terrorism trial to shield their identities from the public and allow them to testify using made-up names.
The measures are needed to protect both men and their families, prosecutors say. Revealing their identities could also compromise other ongoing criminal and intelligence cases involving national security, according to a filing in federal court.
Boise resident Fazliddin Kurbanov, 32, is accused of plotting to set off bombs at military bases and public areas where large groups of people could be killed. An Uzbek refugee who came to the United States in 2009, Kurbanov allegedly detailed his plans during a series of conversations with two FBI informants and in written communications with the website administrator for a terrorist group in Central Asia.
He was arrested in May 2013, after FBI agents found chemicals and bomb-making components at his apartment near Borah High School during a secret, court-authorized search. He is scheduled to go on trial July 13 in U.S. District Court in Boise.
The government is also asking that four FBI linguists from the Middle East and Central Asia be allowed to testify under pseudonyms. They are being called to translate into English various communications and videos. None has testified in court before.
“The linguists fear reprisal against family members and relatives living in these countries if it becomes known publicly that they work for the government and/or that they testified for the government in a criminal proceeding involving the Islamic Movement of Uzbekistan,” Assistant U.S. Attorney Aaron Lucoff wrote.
The IMU was originally formed in 1998 to overthrow the government of Uzbekistan. The group, which wanted to create an Islamic state, later allied itself with al-Qaida and the Taliban. More recently, it became a supporter of the Islamic State.
At the FBI’s behest, one of the two informants enrolled in a Salt Lake City truck-driving school that Kurbanov attended in January 2013. The man posed as someone who was sympathetic to what the government contends are Kurbanov’s extremist views.
The informant had frequent conversations during the two weeks the men were together about Kurbanov’s interest in explosives and holy war. Kurbanov allegedly spent hours with the man showing him videos dealing with terrorism and explosives.
Kurbanov also discussed potential explosive attacks he was planning in the United States, last week’s filing on the informants alleges.
The second informant briefly lived with Kurbanov in Denver in winter 2012. The discussions between that informant and Kurbanov were similar to those with the first, the government contends.
“There is a reasonable possibility that an IMU member or sympathizer might attempt to identify and harm the (informants) and their families in an effort to disrupt the case,” Lucoff wrote.
Kurbanov is charged with conspiracy to provide material support to the Islamic Movement of Uzbekistan; conspiring and attempting to provide material support in preparation for, or in carrying out, the use of weapons of mass destruction; and possession of an unregistered explosive device.
If convicted, he faces up to 20 years each on the conspiracy charges and up to 10 years for possession of an explosive device.
He also was indicted by a federal grand jury in Salt Lake City of one count of distributing information related to explosives, destructive devices and weapons of mass destruction. That case is on hold while the Boise case moves forward.
Authorities say that Kurbanov was planning an attack in the United States. During a secret, court-authorized search of Kurbanov’s residence in November 2012, authorities said they found bomb components and chemicals.
In a series of emails in fall 2012 between Kurbanov and a person who used the online name ahmadi9777 and who said he was the administrator of the Islamic Movement of Uzbekistan’s website, Kurbanov said he was gathering materials for hitting targets in the United States. He also indicated that he didn’t know a lot about assembling bombs.
“In just a regular store, you know, both, the ammonium nitrate and sulphate are available. Gunpowder is available as well. There are AK, M16, bullets, everything,” Kurbanov wrote in one of the messages. “But we need to know how to connect the wires, how much and what to do. Also, it would be great if we learn how to operate the remotely controlled ones. While some are operated remotely, others will be by ourselves.”
Lucoff has asked that a screen be placed to keep the two witnesses from being seen by observers sitting in the public section of the courtroom inside the James A. McClure Federal Building. Jurors, prosecutors, defense attorneys, Kurbanov and U.S. District Judge Edward J. Lodge, who is presiding over the trial, would be able to see the two men.
If Lodge rules against using a screen, Lucoff asked that the courtroom be closed to the public while the two men testify. If that happened, observers would be allowed to sit in an adjacent courtroom and listen to an audio-only broadcast.
Defense attorney Chuck Peterson has not filed responses to the motions.
Shielding witness IDs doesn’t violate Constitution, prosecutors say
Court rulings have balanced the right to confront one’s accuser with the need to protect investigations and informants
The right of a defendant to face witnesses in a criminal case is enshrined in the Bill of Rights.
The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
But federal prosecutors in Boise say they can still meet the amendment’s terms when shielding witnesses. They cite several previous cases at which witnesses have been allowed to testify behind screens or use pseudonyms to hide their real identities.
In the government’s terrorism case against Fazliddin Kurbanov, Assistant U.S. Attorney Aaron Lucoff argues that shielding the true name of a witness is an approved method in certain instances to protect the safety of a person who testifies.
Two years ago, the 9th U.S. Circuit Court of Appeals ruled that Arizona drug dealer Jorge de Jesus Casteneda’s right to confront his accuser was not violated when a witness testified while wearing a wig and a fake handlebar mustache to shield his identity. Prosecutors argued the disguise was necessary to protect the man as he continued to collect evidence inside Mexico’s violent Sinaloa drug cartel.
In a 1991 case in Kansas City., Mo., a police detective was allowed to testify from behind a screen against five defendants in a drug case. The detective was one of only a handful of black female drug detectives in the city, and the court agreed her safety might be jeopardized.
In 2008, the 2nd U.S. Circuit Court of Appeals upheld the conviction of a man for selling crack cocaine to an undercover detective in New York City. Richard Hargett protested the use of a blackboard at trial to prevent members of his family from viewing the detective as he testified. The officer said he was still involved in undercover drug buys and he feared for his safety if the family members, who allegedly were also selling drugs in the neighborhood, could identify him.
The 9th Circuit instructs judges to weigh the defendants’ rights to confront government witnesses against the government’s interest in not compromising investigations and in protecting informants’ identities. Judges in Idaho and other states within the 9th Circuit must conduct an analysis before ruling that the name of a witness can be shielded.
John Sowell
From the Idaho Statesman