Prosecutorial mistakes and a politically correct judge exposed Americans to a potential massacre.
The Garland, Texas, police officer who gunned down two Islamic terrorists not only saved the lives of his fellow officers and the innocent citizens at Pamela Geller’s “Draw Muhammad” contest, he saved the consciences of federal prosecutors and a federal judge from a terrible burden — the knowledge that they botched a case that could have prevented a massacre. Shooter Elton Simpson should never have been in Garland, Texas, on May 3, 2015. He should have been serving time in federal prison.
As has been widely reported, in 2011, Simpson was convicted of making a false statement to the FBI about his intention to travel to Somalia. He was acquitted, however, of the charge that his false statement involved international terrorism, which carried with it a potential sentence enhancement of up to eight years in prison. Instead, he received a mere three-year probation and a $500 fine.
But what was the evidence against Simpson? Why was he acquitted? The answer lies in Judge Mary H. Murguia’s March 14, 2011, order in the case. President Bill Clinton first appointed Judge Murguia to Federal District Court, and President Obama has since elevated her to the Ninth Circuit Court of Appeals. She’s been mentioned as part of the “diverse bench of progressives whom Obama or future presidents could tap for Supreme Court vacancies.”
Simpson waived his right to a jury trial, so Murguia served as both judge and jury in the case — interpreting the law and finding the facts. According to her order, Simpson had long been monitored by the government, primarily through an informant, Dabla Deng. Mr. Deng recorded a number of conversations in which Simpson not only expressed sympathy for jihad but also a desire to join the fight.
Shooter Elton Simpson should never have been in Garland, Texas, May 3, 2015. He should have been serving time in federal prison.
Simpson — according to the court order — declared that “Allah loves an individual who is ‘out there fighting [non-Muslims]’ and making difficult sacrifices such as living in caves, sleeping on rocks rather than sleeping in comfortable beds and with his wife, children and nice cars.” He also directly referenced the alleged eternal rewards for jihad: “If you get shot, or you get killed, it’s [heaven] straight away.”
Simpson discussed Palestine, Iraq, and Somalia, indicating — again, according to the judge’s summary — that “If ‘a brother’ in Palestine has his house bombed, you should feel like that bomb landed on your house.”
He continued:
That’s why they get fought. You try to make us become slaves to man? No we slave to Allah, we going to fight you to the death.” Mr. Simpson then mentioned Palestine, Afghanistan and Iraq and stated “Some people they don’t believe that they should be over there fighting. That’s the problem. That’s like a disease in the heart, man. . . . [I]t’s a small group of brothers who can see and understand why. . . . Some brothers don’t have the same understanding.”
The discussions soon grew more specific:
In another recording from May 29, 2009, Mr. Simpson told Mr. Deng “it’s time to go to Somalia, brother . . . we know plenty of brothers from Somalia.” Mr. Simpson and Mr. Deng then discussed their possible contacts in Africa. Mr. Simpson then said “It’s time. I’m tellin’ you man. We gonna make it to the battlefield . . . it’s time to roll.”
On June 16, 2009, Simpson told Deng, he was “getting up out of here.” Simpson discussed a video about the “permissibility of doing martyrdom operations.” He talked about going to a religious school, then said, “School is just a front. School is just a front and if I am given the opportunity to bounce . . . ” He also described to Deng how he would explain away his travel plans by saying “I’m just trying, trying to travel, trying to see the world.”
Simpson did not take the stand to explain the statements, and their authenticity wasn’t in question.
The federal government provided the recordings, interpreted them as indicating intent to join jihadists, but then — incredibly — failed to provide adequate proof of the pervasive jihadist violence in Somalia. Rather than put a true expert on the stand, the government relied on the same FBI agent who’d been working with the informant. Here’s what allegedly qualified him to testify authoritatively about “the current political situation in Somalia”:
Agent Hebert explained that he obtained this knowledge from attending a seminar at West Point, which briefly covered the subject of Somalia. He explained that he had also attended training seminars at the FBI in Phoenix on the political situation in Somalia. Agent Hebert has also done some of his own reading of books and seen news media regarding Somalia.
The judge was not impressed:
As an initial matter, the only evidence the Government offered regarding the political situation in Somalia came from Agent Hebert, who testified that he learned about the country from attending a few seminars and from media such as news reports and youtube videos.
But then the judge went further, holding that “the Government did not prove beyond a reasonable doubt that the Defendant’s discussions about traveling to Somalia were related to the political situation Agent Hebert described.” Here was her reasoning:
It is true that the Defendant had expressed sympathy and admiration for individuals who “fight” non-Muslims as well as his belief in the establishment of Shariah law, all over the world including in Somalia. What precisely was meant by “fighting” whenever he discussed it, however, was not clear. Neither was what the Defendant meant when he stated he wanted to get to the “battlefield” in Somalia.
Yet the doubt Judge Murguia injects into the meaning of the words “fighting” and “battlefield” is hardly reasonable. Indeed, her own “findings of fact” are devoid of any use of the terms outside of references to ongoing combat. This extraordinarily charitable reading of explicitly martial words reeks of political correctness, of the desperate desire to provide an alternative meaning for clearly expressed jihadist intent. Judge Murguia is certainly correct that expressions of “abstract beliefs” are not unlawful, even when those beliefs are “noxious,” but this case contained evidence not just of “abstract beliefs” but statements like, “We gonna make it to the battlefield . . . It’s time to roll.”
Casual prosecutions and wishful judicial thinking will not protect the American people from jihad.
Through its failure of proof, the prosecution gave the judge an opening to read words like “battlefield” and “fighting” outside of their clear and unmistakable context. Yet this failure does not excuse the judicial injection of reasonable doubt into declarations of violent intent absent any testimony providing an alternative explanation.
We are fortunate that the planning, preparation, and training of the Garland, Texas, police and the phenomenal marksmanship of one hero cop were sufficient to overcome the failures of federal law enforcement and the federal judiciary. Casual prosecutions and wishful judicial thinking will not protect the American people from jihad.
— David French is an attorney, a staff writer at National Review, and a veteran of Operation Iraqi Freedom.