Lawyers debate who is a terrorist as sentences near in Minnesota Somali trials

By Randy Furst  randy.furst@startribune.com

The fate of nine Somali Americans from Minnesota who cast their lot with the Somali insurgency in a chaotic civil war will be decided this week in three days of hearings before U.S. District Judge Michael Davis.

Branding the nine defendants recruiters, supporters and participants in a terrorist organization in Somalia called Al-Shabab, the U.S. attorney's office is recommending sentences ranging from five to 50 years, asserting in some of the cases that terrorists are less likely to be rehabilitated than your average criminal.

Prosecutors say that Al-Shabab has the backing of Al-Qaida and the defendants knew what they were getting into.

The Somalis' attorneys say their clients are not terrorists, but people who got caught up in a patriotic effort to defend their homeland against an invasion by Ethiopian troops. They say they did not realize until too late that Al-Shabab's militarism devolved into atrocities.

In hundreds of pages of legal briefs filed in the past month, the arguments for lenient vs. harsh sentences are laid out by defense lawyers and prosecutors, with America's war on terrorism as a backdrop.

Al-Shabab is a "violent Islamist militia," prosecutors wrote in one filing last month, engaged in "guerrilla warfare, suicide bombings, assassinations, mortars and various suicide tactics to intimidate the Somali population." They say the defendants backed a terrorist group that plotted to kill Ethiopian troops invited into Somalia.

Under the government's thesis, one defense attorney argued, American revolutionaries who rose up against Britain in 1776 would face enhanced sentences for terrorist acts.

A driving force behind the prosecutions is a fear that violence in Somalia could spill back into this country.

"A stark example of the harm that this type of investigation is seeking to prevent is the recent attacks in Boston where two individuals were not identified as suspects … until after they had taken action against U.S. citizens," said W. Anders Folk, a former prosecutor in the Somali cases who is now in private practice.

But defense attorneys say their clients never considered a terrorist act here, nor are they charged with such a crime. They concede their clients broke federal laws, but insist they are not radicals.

Omer Abdi Mohamed helped men travel to Somalia "to help fellow Somali citizens return to their homeland and defend fellow citizens from assault," writes his attorney, Peter Wold. "While that does not justify his actions, it also does not make him a terrorist."

Calling it a "Minnesota pipeline," prosecutors point to more than 20 young men who went from Minneapolis to Somalia to join Al-Shabab. On Oct. 29, Shirwa Ahmed of Minneapolis became the first American to die in a suicide attack in Somalia.

Defendant Amina Farah Ali faces up to 30 years. She was convicted of aiding Al-Shabab by collecting money she claimed was for the needy. Prosecutors said she hailed an Al-Shabab attempt to kill the new Somali president. Judge Davis cited her for contempt in her 2011 trial for refusing to stand when he entered the courtroom.

Her lawyer, Daniel Scott, argues she "had no history of radicalism" and was beloved for her efforts to help Somali families in Minnesota. "She was a well-known Muslim, but she had no truck with Al-Qaida," Scott writes.

Prosecutors are seeking a 50-year sentence for Mahumud Said Omar, a janitor, for his role in arranging the men's travel to Somalia, both before and after Al-Shabab was declared a terrorist organization.

His attorney, Andrew Birrell, says Omar's actions were never designed to harm the United States. "Mr. Omar was a pawn who, because of his mental disabilities, became involved in an organization whose evil was far more advanced than he could comprehend," Birrell wrote.

"I think the Department of Justice has cherry-picked and overreached in the extreme," said Cohen, who is not representing anyone in the Minneapolis cases. "Most of the current cases are for fundraising for food and clothing. If this is material support for terrorism, the feds should have indicted 10,000 IRA [Irish Republican Army] supporters in the United States."

If there are long sentences, "members of the Somali community may be disappointed …" says Ramla Bile, chair of the Minnesota chapter of the Council of American-Islamic Relations. "The fact that the FBI classified [Al-Shabab] as a terrorist organization and that supporting them was an act of conspiracy was not information that was accessible to people."

She said Al-Shabab had more support three or four years ago than it does today. "Their support is drying up since their classification as a terrorist organization and since they've started to carry out heinous acts against innocent civilians," she said.

Mark Osler, a professor of law at the University of St. Thomas and a former federal prosecutor in Detroit, said pursuing terrorism charges like these are complicated, particularly in foreign countries, where groups are switching between government and rebel sides.

"There are some very thin lines that are drawn," Osler said.

"For the prosecution, there is comfort in bright lines, and Al-Shabab, listed as a terrorist organization, is a bright line."