Which of These Two Men Got Life?

What a difference a name makes!  Two young men, university students in their twenties, have been sentenced by a Federal District Court.  One received a five year sentence; the other received life without possibility of parole.  Both were born and raised within a short distance of each other.  One is Bethesda, Maryland; the other in Falls Church, Virginia.  But, one is Muslim.  Can you guess which one?

On January 19, 2010, Federal judge Peter J. Messitte sentenced Collin Matthew McKenzie-Gude to 61 months in jail for storing bomb making chemicals in his bedroom.  He had amassed the chemicals and an arsenal of weapons as part of plot to assassinate President Barack Obama during the coming 2008 presidential campaign.  Along with the chemicals and three semi-automatic rifles, two shot guns, and hundreds of rounds of ammunition including armor piercing bullets, police discovered detailed assault plans and maps of possible presidential motorcade routes stored on the young man’s computer.

McKenzie-Gade had also ordered “a two-pound shipment of the key reagent used to make PETN (pentaerythritol tetranitrate), the same material carried by the suspect in the attempted Christmas bombing on a Detroit-bound plane, federal prosecutors said [1].”  And, when he learned that police were about to search his room, he went to White Flint Mall and assaulted a 78-year-old man in a failed effort to steal his car.

Despite this clear example of a violent temperament, McKenzie-Gade is touted as an “All-American” boy.  Steven Kupferberg, McKenzie-Gude’s attorney, presented his client as a mature, bright young man, fascinated by weapons.  He was not the dangerous person the police and prosecutors made him out to be.  After all, his dream was to serve America by guarding installations from terrorists.  This was simply a case of a boy whose role-playing got out of hand.

What a contrast to the arrest and conviction of another “All American” boy, Ahmed Abu Ali from Falls Church, Virginia.  Arrested while sitting for his exams at the Islamic University of Medina in Saudi Arabia, Ahmed was held by the infamous Saudi Muba’ith (Saudi intelligence).  After being tortured, he was forced by agents of the Muba’ith, to read a confession stating that he plotted with an al-Qa’eda cell to assassinate then President George W. Bush.  He was held in Saudi Arabia for more than two years following the video-taping of this confession, yet he was not charged either in Saudi Arabia or in the United States.  Federal prosecutors did not charge Ahmed with any crime until after his family filed a civil habeas corpus petition seeking his release from Saudi detention.

Based solely on this coerced confession, he was convicted by a jury in the Federal District Court for the Eastern District of Virginia in Alexandria, and after appeal all the way to the Supreme Court, he was sentenced by Judge Gerald Bruce Lee to life in prison without parole.

However, no witness or co-conspirator ever stepped forward to confirm Ahmed’s involvement, unlike the case of McKenzie-Gade.

Patrick Yevsukov testified about McKenzie-Gade’s plans and his fascination with plots.  In the Summer of 2008, Yevsukov’s aunt told police that McKenzie-Gade was always talking to her nephew about weapons, and that the two were storing bomb-making chemical and compiling a list of the home addresses of teachers at St.John’s Academy, the military school both attended.

In Ahmed Abu Ali’s case, prosecutors presented evidence uncovered at al-Qaeda safehouses, including translations of American pilot conversations, documents with supposed aliases used by Abu Ali, and “photographs of the various weapons, explosives, cell phones, computers, and walkie-talkies found in the safehouse, all of which Abu Ali had described [in his confession]. Jihad literature and address books containing the names and e-mail address of an al-Qaeda leader, a GPS device, a walkie-talkie, a handgun magazine, a cellphone …[2]”  All of this evidence “tended to establish the trustworthiness of his admissions that he had long wanted to join al-Qaeda, to further its goals, and to provide it support and assistance.”[3]

Moreover, the government claimed that an al-Qaeda member had identified Ahmed as a member of his cell.  But no such person was produced at trial.  Instead, the prosecution submitted evidence of email messages between Ahmed and a person named Sultan Jubran.  These messages were supposedly coded with phrases such as; “heard the news about the children’s sickness,” and “[g]reetings to the group.”[4]  These cryptic remarks, which find their way into countless thousands of emails everyday, were the “strongest independent evidence corroborating Abu Ali’s confessions”[5] according the Fourth Circuit Court of Appeals.

While Fourth Circuit felt a forced confession and two email exchanges about some children’s health was enough to show a conspiracy beyond mere “ideation, sufficient to justify sentencing him to life without parole, Judge Messitte felt that even greater evidence of moving beyond “mere role-playing” justified only five years behind bars, despite the fact that the judge characterized the plot to assassinate President Obama as “serious.”

Now, to be certain, there are significant differences between the two cases.  For one thing, McKenzie-Gade pled guilty and accepted a plea bargain agreement which reduced the severity and duration of any sentence the prosecution could have sought.  On the other hand, Ahmed chose to fight his charges, which included an air piracy charge carrying a 20 year minimum sentence, trusting that the American justice system would recognize his innocence.

Steve Sheppard, Enfield Professor of Law at the University of Arkansas, and well-known International Law expert, notes that disparities of this kind in sentences are all too common. He opines:

“There are many legitimate reasons for different sentences for similar actions. Comparing plea bargains, like McKenzie-Gade’s to a sentence from a jury verdict adds just one more variation. Even so, the sentences in these cases highlight the failures in the U.S. legal system to take seriously home-grown terrorism and to deal reasonably and
thoughtfully with threats from abroad. I’m not convinced the difference was religion or color, but the danger is real that such differences in treatment will be seen by both our friends and our current enemies as genuine bias. Two of three judges of the U.S. Court of Appeals consider thirty years in prison to be overly lenient for terror conspiracy, but a
different judge thinks five years is sufficient for assault, attempted auto theft, and conspiracy to assassinate the President. We can do better than this.”

“Nobody was assassinated. Nobody was wounded. Nobody was injured. But you were on the cusp,” U.S. District Judge Peter J. Messitte told Collin McKenzie-Gude.” [6]  No one was injured in Ahmed’s case as well.  Judge Diana Gribbon Motz, in her well-reasoned dissent to the opinion of the Fourth Circuit in U.S.v. Abu Ali, remarked that, “Abu Ali’s participation in them [plans] was relatively attenuated and resulted in no injury to any person or property.” [7] She noted that “he had never planted bombs, shot or even possessed weapons, committed acts of violence, or taken any steps in the United States to further the conspiracy.” [8] She felt this justified a sentence less than life in prison.

Furthermore, Ahmed had no history of violence or criminal activity. He has never even owned or fired a gun. McKenzie-Gade, on the other hand, showed an early fascination with weapons and a tendency to violence, proven by his attack on a 78-year-old man in an attempt to steal a car so he could flee from police.

Judge Messitte opined in his sentencing of McKenzie-Gade, that he wanted to deter other kids out there with this five year sentence. “There are other Collin McKenzie-Gudes out there who are perhaps 10, 12, 13, 14,” Messitte said. “And they’re fascinated with guns, and they’re fascinated with explosives, and they’re going to watch this case and know about this case.” [9]

But McKenzie-Gade is not a child.  He is twenty years old – a man – and just a few years shy of the age at which Ahmed Abu Ali faced life in prison.  Despite ordering the same chemicals used by Umar Farouk Abdulmuttalab in his failed Christmas day airline attack, McKenzie-Gade did not face terrorism enhancements or any of the multiple conspiracy charges faced by Ahmed Abu Ali.

Judge Messitte opined, “You can talk a game of creating havoc, and then you perhaps think you can come to court afterwards and say, ‘I didn’t really mean that. It was all play-acting. I think I’d like to be home with my parents now,’ “ Messitte said. “The real world does not operate that way. And it never should. And you need to know that.” [10]
But McKenzie-Gade’s “real world” is only five years – a slap on the wrist for an “All-American” boy for which substantial material evidence proves plotted to kill the US President.  The “real world” for Ahmed is life in a cramped jail cell – another “All-American” boy for which a forced confession and some innocuous phrases in an email prove only how discriminatory can be the America “justice” system.

If McKenzie-Gade’s first name had been Muhammad or Ali or Abdul-Hakim, would the story be the same?  If his skin had been brown instead of white, would he still be the innocent “All-American” boy?  Or would he be a “Black man,” a “Hispanic man,” a “Muslim extremist?”  What is the real lesson Judge Messitte and the federal prosecutors are teaching McKenzie-Gade?  Is it that the “real world” is prejudiced?

Just last year we elected our first non-white president.  The press keeps telling us he was the first African-American president.  At least that still sounds like an “American.”  Not some foreigner – some Hispanic, some Asian, some Muslim.  All the attacks on Obama concentrate on whether he was born in the US, or whether he is a Muslim – on whether he is somehow foreign or un-American.

And now a man who conspired to assassinate that same president will get out of prison in time to carry out that plan in his second term.

Please remember Ahmed in you du’as as he continues his fight to prove his innocence and clear his name.  The next step in this process will be the filing of a Federal Habeas Corpus proceeding.  May Allah grant Ahmed and his family sabrun jamilun. Like the Prophet Yousef, we pray that Allah will release Ahmed soon – clear of all the charges he has been forced to face.

[1] Dan Morse, Foiled Plot, or Teenage Fiction?, The Washington Post, Jan. 7, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/01/06/AR2010010605042_3.html?sid=ST2010010603516, (last visted on 1/29/2010),
[2]  US v. Abu Ali, 528 F. 3d 210, 236 (4th Cir 2008). [3] Id. [4] Id. [5] Id.
[6] Dan Morse, Bethesda Man Linked to Obama Death Plot Sentenced to 5 Years, The Washington Post, Jan. 20, 2010,  http://www.washingtonpost.com/wp-dyn/content/article/2010/01/19/AR2010011904460.html?sid=ST2010010603516&sub=AR (last visited 1/29/2010).
[7] US v. Abu Ali, 528 F. 3d at 274 (dissent, Motz, J.), [8] Id.
[9] Dan Morse, Bethesda Man Linked to Obama Death Plot Sentenced to 5 Years. [10] Id.

1 Comment

  1. February 12, 2010 at 4:43 pm

    This is terrible. Thanks for shining a light on sentencing disparities in America.

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