The suspect in the Milwaukee, Wisconsin plot to attack a Scottish Rite center may not face terrorism charges. An extensive report on the story has been published on the Milwaukee Sentinel website.
From the excellent, in depth article by reporters John Diedrich and Cary Spivak:
From the excellent, in depth article by reporters John Diedrich and Cary Spivak:
Samy Hamzeh, according to federal prosecutors, plotted to launch a machine gun attack on a Masonic center in Milwaukee, saying he was "defending Islam," hoping to kill at least 30 people.
His dream: to spark other attacks across the country.
"We will be marching at the front of the war," the 23-year-old said, according to the criminal complaint.
To most, those statements embody terrorism.
But don't expect Hamzeh to face a federal terrorism charge.
There are no such federal laws for a case like the one being mounted against Hamzeh — a so-called lone wolf suspect who planned an attack using guns, according to former prosecutors and other legal experts who reviewed the case at the request of the Milwaukee Journal Sentinel.
The Hamzeh case shows a gap in the law between the punishment for a lone wolf attacking with a gun and laws that target terrorism groups and attacks with explosives, said Stephen Vladeck, law professor at American University Washington College of Law.
"As the government is increasingly worried about lone wolves ... there is going to be a lot more attention paid to what federal law does or does not say about the issue," he said.
Hamzeh is charged with five counts for illegally possessing two machine guns and a silencer, which he bought from undercover FBI agents.
Experts say that's fine, that there are many ways to prosecute without a terrorism charge. They point out that neither the Oklahoma City bombing nor the Boston Marathon bombing were prosecuted as terrorism.
Keeping terrorism out of the charges prevents suspects from achieving one goal — public notoriety, said William Snyder, a former federal prosecutor in Pennsylvania.
"Why give them a soapbox? Why give them headlines? Why risk confusing a jury?" said Snyder, who now teaches law at Syracuse University.
Case falls between laws
Federal law, for the most part, targets foreign terrorists.
And the details in Hamzeh's case don't seem to fit the domestic terrorism laws on the books, said several lawyers who reviewed the complaint.
Hamzeh was not targeting a federal building or federal employees, and Masons are not a group protected by hate crime laws. Hamzeh was not planning to use a "weapon of mass destruction," and had not identified himself with a known terrorist group.
A conspiracy charge against Hamzeh seems doubtful. The two people authorities said he was plotting the attack with were both FBI informants, working under the direction of the agency.
So prosecutors may be left with the automatic weapons and silencer charges.
And that's OK, said Snyder — the weapons charges carry penalties of up to 10 years per count. Defendants, however, often cut deals where they receive far less than the maximum penalty.
But creative prosecutors may still find other charges, he said.
"Whether or not there is a terrorism charge, I'm confident they will find enough legal resources to have really, really long sentences in play," he said.
Federal prosecutors continue to review the Hamzeh case, and it's possible additional charges will be added when they present the case to a grand jury in Milwaukee.
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Not seen as zealot
A U.S. citizen who has lived in Milwaukee for five years, Hamzeh has no criminal record. His family suggests he was set up by FBI agents working with people close to Hamzeh who were secretly recording him. Those informants have not been identified.
In online postings, his family said he was passionate about the plight of the Palestinians but was not a religious zealot and launching such an attack would be completely out of character. Friends echoed that, saying Hamzeh smoked marijuana and hung out in bars and coffee shops, but was no radical.
The criminal complaint says Hamzeh plotted to launch an attack on a Masonic center, which was identified as the Humphrey Scottish Rite Masonic Center in downtown Milwaukee, with two others — the two who were secretly recording him for the FBI.
Hamzeh came to the attention of the FBI because he had been talking about traveling to the Middle East to wage attacks against Israeli soldiers and civilians, the complaint says.
If Hamzeh's legal team mounts an entrapment defense, they may focus on the seriousness of those overseas travel plans. They also may argue that the informants suggested aspects of the Masonic center plot. Such defenses are rarely successful, as they must prove agents caused a normally law-abiding person to commit a crime.
In preparation for the attack, Hamzeh toured the center, practiced shooting at a range and spoke extensively about how the attack would unfold, according to the complaint.
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"Who hates Masons?"
In the complaint, Hamzeh is quoted as saying the Masons "are playing with the world like a game, man, and we are like asses ... these are the ones that need to be killed."
The law lists several criteria for prosecuting a person who tries to hurt or kill someone based on the "actual or perceived," including religion, race, color, gender, sexual orientation, disability or national origin.
The Masons are a semi-secretive fraternal service and social organization. They have not been recognized as a protected group.
Jeff Cramer, a former federal prosecutor who runs the Chicago office for Kroll, a private investigation firm, said prosecutors may be able to use the hate crime statute if they argue that Hamzeh was confused.
"Maybe he thought it was temple, a Jewish temple — now I could make that argument as a prosecutor," he said. "There has to be a reason why he wanted to kill the Masons. Who hates Masons? The Masons do good things."
Prosecutors in terrorism cases often use the so-called material support law when a suspect has identified himself with a known terrorist group and is helping them, or trying to.
But Hamzeh specifically said he was not part of a larger group, according to the complaint.
"We have our own group, not with Hamas. ... We are here defending Islam, young people together join to defend Islam, that's it, that is what our intention is."
It is also possible the case could be prosecuted in state court as an attempted homicide, but there is no indication that will happen.
Snyder, the former federal prosecutor, said charging decisions in cases involving suspected terrorists should be driven by a single goal: getting the suspect off the street before he can act.
"That's why this course is called 'not prosecuting terrorism, but prosecuting terrorists,'" Snyder told his students in a 2012 lecture. "The idea is to disrupt and prevent. Identify terrorists, prosecute them somewhere and break it up ... so that you are preventing the attack rather than trying to prosecute somebody for it after the fact."