Court overturns subway bomber’s conviction for giving ISIS ‘material support,’ raising questions about terrorism prosecutions

By Nicki Brown, CNN

(CNN) — A federal appeals court reversed a terrorism-related conviction for the 2017 New York City subway bomber in a decision that could have wide-reaching effects for the prosecutions of accused terrorists.

Akayed Ullah detonated a pipe bomb inside a busy Manhattan transit station in 2017, causing panic among commuters and injuring nearby civilians. Ullah later told investigators he carried out the attack in support of the terrorist group ISIS.

After a weeklong trial, Ullah was convicted of six charges, including one count of providing material support or resources to a terrorist organization. This week, the Second Circuit Court of Appeals overturned his conviction on that charge, finding although Ullah was inspired by ISIS propaganda online, he acted “entirely independently” of the terrorist organization.

As a result, the evidence to convict Ullah of providing material support under the relevant statute was insufficient, the court found – though the panel upheld his convictions on the other charges, including committing a terrorist attack against mass transportation systems.

While the ruling will not affect Ullah’s sentence of life in prison, experts say it could affect previous convictions and how prosecutors approach terrorism-related cases going forward.

The Second Circuit’s 2-1 opinion suggests in cases involving lone wolves, the statute can only apply where perpetrators are in or seek direct contact with a terrorist organization, making it obsolete in many terrorism cases, since ISIS and other groups rely on widespread propaganda to inspire global attacks from afar.

“It will render the statute inapplicable to what is becoming the most common terrorist scenario – where a person becomes radicalized by watching videos or seeing propaganda put out over social media and then acts on it,” CNN Senior Legal Analyst Elie Honig said of this week’s ruling. “That will no longer qualify as material support to a terrorist organization.”

The opinion also raises questions about recent high-profile cases brought under the statute, including the two men accused of trying to detonate makeshift bombs during protests near the New York mayor’s residence. They have pleaded not guilty to all charges.

“This ruling, although it was in an individual case, could have an outsized effect on many other cases past and present,” said John Miller, CNN’s chief law enforcement and intelligence analyst.

It is unclear if federal prosecutors will appeal the court’s ruling. A spokesperson for the US Attorney’s Office for the Southern District of New York declined to comment.

‘I did it for the Islamic State’

During the morning rush hour on December 11, 2017, Ullah, then 27, detonated a pipe bomb strapped to his body inside an underground walkway connecting two subway lines beneath the Port Authority Bus Terminal, a major transit hub that sees more than 200,000 passengers a day.

Grainy surveillance footage captured at the scene shows the explosion and a plume of smoke erupting in the hallway, causing commuters to duck and take cover.

“The investigation showed this was to be a suicide bombing,” Miller said. “The only reason Ullah and everyone around him wasn’t killed or seriously injured was one critical mistake he made in his bomb construction.”

After the explosion, Ullah said he was inspired by ISIS to carry out the attack, telling investigators, “I did it for the Islamic State,” according to a criminal complaint.

“From that moment on, it was clear that he was acting in support of and on behalf of ISIS,” said Miller, who interacted with Ullah at the scene in his role as the NYPD’s deputy commissioner of intelligence and counterterrorism.

Judge Myrna Pérez, who authored the Second Circuit’s majority opinion this week, wrote although Ullah’s attack was motivated by ISIS, that was not enough to support a conviction of providing material support to the terrorist organization. The relevant statute says individuals must work under the group’s “direction or control.”

“While Defendant was inspired by a general online exhortation by a foreign terrorist organization, the evidence did not prove that he worked or attempted to ‘work under (the) direction or control’ of that organization or coordinated with the organization in any way, as would be required to prove a violation of (the statute),” Pérez wrote.

Ullah did not have direct communication with the terrorist group, the judge wrote, and his closest contact was watching online ISIS propaganda videos that encouraged followers to attack the United States but did not provide specific instructions.

“A person cannot ‘work under (ISIS’s) direction or control’ if he is acting alone, and if ISIS does not know he exists, has no expectation that he will hear ISIS’s messages or act on them, and will not know, or care, or have any recourse if he ignores the message completely,” Pérez wrote.

In his dissenting opinion, Judge Steven J. Menashi wrote the jury rightfully found Ullah provided material support to the terrorist group and the other two judges had reached a “counterintuitive conclusion.”

“That is wrong,” the judge said of the majority opinion, noting Ullah watched a video posted less than two weeks before the attack that portrayed bombs over the US and included the slogan “Die in your rage, America,” a phrase that was also written on Ullah’s passport and a container with bomb-making materials. Ullah also told investigators he chose the location of his attack after seeing a report about ISIS threatening the area.

“A person may receive a direction from a terrorist organization through a broadly disseminated video and attempt to act under that direction,” Menashi wrote. “Ullah did precisely that.”

Miller, who previously worked in high-level counterterrorism positions, similarly said in an interview terrorist propaganda that urges followers to commit attacks is a form of “direction.”

“From the point of view of a counterterrorism executive who worked on many of these cases, the idea that anyone who is inspired to violence by direct messages coming from the terrorist organization is acting entirely independently is not one that passes muster to me,” he said.

Future cases could be affected

Although the material support statute has been around since the 1990s, its first conviction was not secured until after September 11, 2001, according to an academic study out of the University of Arkansas. After the World Trade Center attacks, the prosecutions and convictions under the law increased dramatically, as prosecutors widened the net for what they considered material support.

The recent opinion will become law in the Second Circuit – which encompasses district courts in New York, Connecticut and Vermont – and may provide a pathway for some defendants convicted under the statute to appeal. Honig anticipates the issue will eventually reach the Supreme Court, whose ruling would ultimately be enforced across the country.

“I do think the court of appeals got it wrong,” Honig said. “Unless and until the Supreme Court takes it and reverses it – and we don’t know whether they’ll do that – it means that this particular statute will be unavailable to prosecutors, at least in the Second Circuit.”

A recent material support case in the Second Circuit’s jurisdiction involves the two men accused of tossing makeshift bombs into a crowd of protesters outside the New York City mayor’s residence in March.

Emir Balat, 18, and Ibrahim Kayumi, 19, both made statements to investigators indicating they were inspired by the Islamic State, with Kayumi saying he watched “radical content” online, according to charging documents. Prosecutors have not suggested either had direct communication with the terrorist group, although the case is still in its preliminary stages.

The circuit court’s recent ruling will be applied to prosecutions on a case-by-case basis, said criminal defense attorney Joshua Dratel, who has represented several accused terrorists.

“Will it have an effect on cases? Probably some,” he said. “It’ll probably force lawyers and prosecutors to reevaluate what the quantum of proof is for this particular issue.”

Prosecutors can use different terrorism-related laws to charge alleged terrorists and will often bring various charges against a defendant, Dratel said.

In Ullah’s case, he was also charged with committing a terrorist attack against mass transportation systems. His conviction on that charge was upheld by the appeals court.

Honig echoed that sentiment:

“Anyone who carries out a terrorist act, explosives or firearms, is going to be committing many, many crimes,” he said. “But this one (law) will become inapplicable.”

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