Do this man’s tweets, eBay purchases, and WhatsApp messages make him a terrorist?

By Fusion Staff | July 31, 2015 | 4:50pm

Latest

Arafat Nagi tweeted images of ISIS propaganda. He ordered military equipment on eBay. He traveled to Turkey, and sent WhatsApp messages about how his “heart bleeds” for “the Syrian people,” all according to the FBI.

For federal agents, social media and internet activity like this provided enough evidence to arrest Nagi, a 44-year-old man living in western New York state, and charge him this week with attempting to provide “material support” to ISIS. But civil rights advocates question whether the digital breadcrumbs he left behind, while suspicious, actually amount to a crime—or if he’s being prosecuted for an unpopular opinion.

Most Popular

Nagi was held without bail this morning. His case is the latest in a dragnet of alleged ISIS supporters as fears of the terrorist group have crescendoed. In the last year, the federal government has brought more than two dozen cases against U.S. citizens accused of supporting ISIS, according to The New York Times, and social media has played a critical role in many of them.

According to the criminal complaint filed against Nagi, FBI agents peeled away his internet anonymity with a series of search warrants. The investigation started when a “person previously convicted of terrorism offenses who is cooperating with the government” told agents in August that Nagi had been talking about jihad with some of his neighbors. The person also told investigators that Nagi had been using a Yahoo email under an alias, Farooq Quhaif.

The email led to a Twitter account under the same alias and using the same IP address, which had posted more than 7,000 tweets praising ISIS. The tweets, mostly in Arabic, included photos of beheadings, appeals for followers to join the group, and a “pledge to hear and obey Abu Bakr al-Baghdadi,” the leader of ISIS. The account had 412 followers, many of whom tweeted similar content. It has since been deactivated.

Meanwhile, Nagi made eBay purchases of more than a dozen items of military equipment under his own name, and had them delivered to his house in Lackawanna, N.Y., a suburb of Buffalo, according to the complaint. His purchase history between 2012 and 2014 included a machete, body armor, night vision goggles, camouflage pants, and flags and memorabilia associated with extremist groups.

The agents argue that Nagi intended to deliver these items to ISIS fighters. He traveled to Turkey twice, once in 2012 and again in 2014. His first trip to Turkey was cut short after a single day owing to a gall bladder infection, while his second was a 10-day layover on the way from New York to Yemen, where he has family.

Officials subpoenaed Nagi’s WhatsApp and text message histories, which are full of oblique references. During his 2014 stay in Turkey, he texted his sister, “I’m talking with them for the first time…They gave me directions how to get to them.” His iPad had saved screenshots of searches for hotels near the Turkey-Syria border and images of border crossing maps.

Prosecutors argue these suggest he was in contact with ISIS members and intended to cross over into Syria to meet them. Nagi told Customs Border Patrol agents after returning to the U.S. in September 2014 that he hadn’t left Istanbul while in Turkey and didn’t support ISIS. The ISIS-glorifying Twitter account was deleted soon after that interview.

Besides the original informant, the complaint also included testimony from an “associate” of Nagi’s who told agents Nagi had bragged about pledging allegiance to ISIS and planned to return to the Middle East in the near future.

But does this all add up to a smoking gun? “The criminal complaint against him doesn’t allege any inherently illegal activity on his behalf, and we’re looking forward to seeing what more the government has,” Jeremy Schwartz, Nagi’s lawyer, told Fusion. “I think there’s going to be some First Amendment implications.” Schwartz said Nagi’s travel to Turkey was “all above-board.”

Law enforcement officials claim Nagi’s prosecution is about protecting Americans. “This defendant is no longer capable of achieving his goal of joining the most despicable group of our time,” U.S. Attorney William J. Hochul said in a statement. If convicted, Nagi faces a maximum of 15 years in prison and a $250,000 fine.

“Are they going to prosecute everybody who… says really offensive, uncomfortable things on social media? Because that’s a lot of people.” — Naureen Shah, Amnesty International

The case revolves around whether Nagi attempted to provide “material support” to ISIS. The relevant statute, which is used in most post-9/11 terrorism prosecutions, includes providing “any property, tangible or intangible, or service.” The accused doesn’t have to actually succeed in delivering the support—attempting to provide it is enough, according to the law’s definition. “It can mean pretty much anything the government wants it to mean,” Naureen Shah, a lawyer and a director at Amnesty International, told Fusion. “It’s an extremely vague term, and that’s the problem with it.”

In Nagi’s case, prosecutors specify that the material support was “personnel”—in other words, that he himself attempted to join ISIS or recruit others to join. It’s not clear whether a tweeted declaration of allegiance to the group and Nagi’s activity in Turkey will be enough to support that claim. According to a 2010 Supreme Court case, “independent advocacy” for terrorist causes may be protected by the First Amendment, while speech directed by or coordinated with a terrorist group is not.

Perhaps the closest parallel to Nagi’s case is the 2011 prosecution of a Massachusetts man who posted videos supporting jihadi causes and traveled to Yemen, allegedly in an unsuccessful attempt to train with Al Qaeda. He was convicted by a jury under the same material support statute that Nagi is being charged under.

In other more recent investigations of alleged ISIS supporters, the FBI has developed a series of elaborate plots using undercover agents to test how susceptible suspects are to recruitment by violent extremists and then arrest them for gong through with the fake plans. Agents have posed as a extremist recruiters and even helped suspects film supposed terrorist videos. Several recent arrestees had no actual contact with real terrorists and no means of planning a real attack; and least one has been described as mentally ill.

It’s a difficult line: Unlike in many other crimes, law enforcement agents are expected to arrest suspects in terrorism cases before they commit an attack, not after. No one wants to see headlines after bombs go off about how officials had been tracking the perpetrator and didn’t arrest them, as was the case with the Boston Marathon bomber Tamerlan Tsarnaev.

But it’s clear that people who express unpopular opinions online—and especially Muslims who do so—are being targeted. If “material support” essentially means voicing support for a group, that dynamic has a potentially chilling effect on freedom of expression.

“Are they going to prosecute everybody who… says really offensive, uncomfortable things on social media? Because that’s a lot of people,” Shah said. “What we don’t have from the FBI is a clear commitment to investigation tactics that avoid prosecuting people based on their opinions.”

Casey Tolan is a National News Reporter for Fusion based in New York City.