retour article original
On the evening of May 7, 2007, 48-year-old Lata Duka was doing dishes in the kitchen of her home in Cherry Hill, New Jersey, when she heard a loud bang come from the front of the house. “It wasn’t a normal sound. I was very scared”, Lata recalls nearly a decade later. Thinking someone was breaking in, Lata grabbed a chair from the kitchen table and hoisted it above her head, waiting for the intruder. Moments later a swarm of armed men burst through the front door and ran into her kitchen. “Put the chair down or I’ll shoot !” she says one exclaimed, pushing his gun against her chest.
The armed men were FBI agents and other law enforcement officials. As they searched the house, one of the men approached Lata. He was smiling. “He kept asking me, where are my sons !” Lata remembers. “Just smiling and going up and down the stairs, asking me all the time, where are your sons ? I told him my sons were at work. He just kept smiling at me”.
Lata didn’t know that at roughly the same time, authorities were conducting raids at separate locations in Cherry Hill to arrest her three sons, Dritan, Shain and Eljvir Duka. Over 100 officers and agents were involved in what at the time was one of the most high-profile counterterrorism arrests in the post-9/11 era.
The next morning, Chris Christie, then the U.S. attorney for New Jersey, appeared at a press conference (1) flanked by law enforcement officials to announce the arrests. “The philosophy that supports and encourages jihad around the world against Americans came to live here in New Jersey and threatened the lives of our citizens through these defendants”, he said. Christie said that five men apprehended the previous night —the three Duka brothers along with two friends, Mohamad Shnewer and Serdar Tatar— had been planning to launch a terrorist attack against the nearby Fort Dix military base. “Fortunately, law enforcement in New Jersey was here to stop them”, he said.
The press conference and ensuing case garnered national attention, and the brothers and their friends quickly became known as the “Fort Dix Five”, characterized in the media as a terrorist cell that intended to kill servicemen and attack facilities at the base. For Christie, now a possible contender for the GOP 2016 presidential nomination, the arrests would be a career turning point, helping galvanize his eventual rise to governor of New Jersey.
Video : Entrapped
For the Duka family, the arrests marked a tragic turn. They had escaped the turmoil of the former Yugoslavia and managed to start anew in the United States, only to find three sons publicly branded as terrorists. Dritan, Shain and Eljvir, seized when they were 28, 26 and 23, would be convicted of conspiring to kill U.S. military personnel and sentenced to life in prison, devastating the Duka family and putting an end to their nascent American dream.
Beyond the sensational headlines is the story of paid FBI informants with long criminal histories who spent a year working to befriend the brothers and enlist them as terrorists. This effort, both expensive and time-consuming, nevertheless failed to convince the Duka brothers to take part in a violent attack. Indeed, over the course of hundreds of hours of surveillance, the plot against Fort Dix was never even raised with them.
In the years since these events occurred, the use of dubious informants in terrorism investigations by the FBI has become almost routine. When purported terror plots are “revealed”, they almost invariably involve paid government informants (2) at every level of their ideation, facilitation and planning. But the story of the Duka brothers is an early example of this type of case —and it still stands out because of the deliberate and brazen way the brothers were entrapped by authorities, assisted by their paid informants. Indeed, one might argue that the targeting of the Dukas was the prototype for the program of state-orchestrated terrorism plots (3) that continues today.
In the 1980s, Yugoslavia was in its final chaotic decade of existence. Lata Duka and her husband, Firik, both ethnic Albanian Muslims, decided to leave their small village of Spas in search of a better life for their three young boys.
The Dukas traveled by train across Europe to a refugee camp in Latina, Italy, where they stayed for a year. From there, they boarded a plane to Mexico City and made their way to the Rio Grande, which they crossed by canoe into Texas. Once across the border, the family spent 12 hours in the back of a pickup truck to Dallas, before finally heading east toward their final destination : the Bensonhurst neighborhood of Brooklyn, New York.
None of the Dukas spoke English at the time, and they had entered the country without legal documents. Firik found a job stocking shelves at a Korean-owned fruit stand, where he was paid $175 a week. He made flashcards to learn the names of the produce he was handling, and at night, he would come home and teach his wife the words he had learned. “Our way of life was to just take care of our families, just live simply, and teach the children how to work hard”, Firik says.
Life in Brooklyn wasn’t easy, and the Duka family was only getting bigger. Lata and Firik had two more children : a girl named Naze and a boy named Burim. When their oldest child, Dritan, or Tony as he’d come to be called, turned six, they sent him to public school. Because he could barely speak English, he fell behind the other kids. When Lata got notes from his teachers, she couldn’t read them.
Bensonhurst was known, in Brooklyn and beyond, as a home for ethnic mafias. “Growing up, the Russians would be with the Russians, Italians with the Italians, and the Albanians with the Albanians”, remembers Burim, the youngest of the four brothers. “The Albanians never started nothing, but sometimes, if someone came to us, we had to fight”. It wasn’t unusual for the boys to come home with a black eye or a bleeding lip. In time, they adapted to the street life of their neighborhood, developing thick Brooklyn accents and a swagger to match.
Tony, who had a temper, frequently got into fights at school. He knew he was heading down a bad path and dropped out during his freshman year, telling his father, “If I don’t, I’m either going to end up in jail or dead”. Reluctantly, Firik got his son a job at a wholesale food distributor, where he was driving delivery trucks.
Though he stopped attending classes, Tony continued to pick up his brother Shain from high school, where he eventually met a student named Jennifer Marino. The two fell in love, began dating, and a year later were engaged. Jennifer moved into the Duka family’s small apartment.
Like their older brother, Shain and Eljvir also dropped out of school to work, and spent more time hanging out on the streets. At various points, the three brothers were arrested on charges of disorderly conduct and marijuana possession.
Firik and Lata grew increasingly frustrated ; they hadn’t moved their family halfway across the world to have them give up their education and get caught up in petty crime. They were at a loss for what to do, and overwhelmed by the challenges of life as immigrants in America. In an effort to keep their sons out of trouble, Firik moved the family out of Brooklyn to a two-bedroom apartment in suburban Cherry Hill, New Jersey. Tony, Jennifer and their newborn baby girl, Lejla, took one room, while Firik and Lata took the other. Shain, Eljvir, Naze and Burim all slept in the living room.
One day after leaving work, Shain and his girlfriend got into a car accident. While their injuries were minor, the experience shook Shain. “I realized that if I had died then I would have gone to hell”, Shain says of the experience, writing to The Intercept from a federal prison in Kentucky, where he’s currently incarcerated. “The accident made me realize that death can come at any moment so I better try and get right”.
Over the course of the next year, Shain began to take his Muslim identity more seriously. He stopped drinking and smoking pot, and says these changes in behavior opened up conversations about religion among the brothers. “I started to read the Quran a bit, and pray every now and then. It was a struggle because I didn’t want to be fake”, Shain says. “When I do something, I don’t want to be hypocritical. Over here praying and fasting, then over here in a nightclub smoking weed with a bunch of girls partying. No, I would try and do it wholeheartedly”.
Lata and Firik, both practicing Muslims, were overjoyed by this change. “I had tears in my eyes when they were telling me they would start praying”, says Lata. As the tumult of their early years passed, the brothers began to settle into lives revolving around family and work, pooling their money to open a restaurant, which they named Dukas Pizza. They also became more religious. Their understanding of Islam was elementary and largely self-taught, and for the first time, they began attending mosque services on Fridays, praying five times a day and growing out their beards. They incorporated Islamic phrases into their everyday lives, greeting each other with “Salaam alaikum”, or “Peace be upon you”.
As the Dukas were changing, the United States was about to change, too. On September 11, 2001, hijacked planes crashed into the Word Trade Center towers and the Pentagon. “When it happened, I was driving to a job in Jersey. My kids called me from home and told me something had happened”, Firik says. “I used to deliver food in those buildings, and I would take Shain along with me. When he was a child, the Twin Towers were his favorite buildings in the city. We couldn’t believe this was happening”.
In the aftermath of the attacks, the national mood turned. The Dukas, like many others, were opposed to the subsequent wars launched by the Bush administration in Iraq and Afghanistan. In their view, the U.S. was waging an unfounded attack on two countries that had nothing to do with 9/11. “I was frustrated and against the wars. I believed the wars were unjust and wrong”, Shain wrote from prison. “They killed so many innocent people”.
The Dukas also began to grow increasingly disenchanted with the widespread mistreatment of Muslims. In Europe, the 2004 Madrid train bombing, believed to be carried out by an al Qaeda-inspired terror cell, was followed the next year by a series of attacks in London. Public officials in Europe and the U.S. began to warn of the threat posed by young Muslim men. “America was turning into a spy state, it used 9/11 as a stepping stone to justify this”, Shain says. “Not everyone was affected, so not everyone cared, but Muslim people felt it”.
Yet the Duka family continued to thrive. Firik had started his own roofing business, which the brothers decided to focus on full time, selling their pizzeria. By the end of 2005, the company employed a growing staff and the future seemed bright. The boys decided to do something they had done many times before as a family : take a vacation.
In January 2006, the Duka brothers and a group of friends, including Mohamad Shnewer, Eljvir Duka’s former schoolmate and future brother-in-law, took a trip to a cabin in the Poconos Mountains in Northern Pennsylvania. There, they did what any group of young men might do on vacation : they went skiing, played paintball in the woods, rode horses at the stables and went to the shooting range.
Tony brought his video camera to record his brothers and friends. After the trip, Burim and Shain took the tape from Tony’s camera to a Circuit City near their home in Cherry Hill. They wanted to make copies of the video to give to everyone who went on the trip.
The Circuit City clerk processing the videotape saw a group of young bearded men in the woods, skiing, shooting guns and riding horses. The Dukas, whose daily speech was often punctuated with Arabic phrases, could occasionally be heard saying “Allahu Akbar” on and off camera. While in earlier years a group of young Muslim men at the shooting range may not have aroused the panic of employees, in the heightened paranoia after 9/11, it was enough to trigger alarm.
The employee called the police and reported the tape.
The footage revealed no evidence of a crime, but the Circuit City employee’s call to the police set in motion a series of events that would soon link the Dukas and their friends to Mahmoud Omar, a 36-year-old Egyptian immigrant who was also an FBI confidential informant.
In the 1970s, when the Senate was investigating the FBI’s notorious COINTELPRO domestic counterintelligence operations, the agency employed around 1500 confidential informants. Today, that number has ballooned to 15000 confidential informants. Many of these individuals have long-documented criminal histories or problems with their immigration status, and their entanglement with the law is exploited to coax them into helping generate criminal cases against people who have yet to commit concrete acts.
In 2006, the FBI approached Omar, who also lived in Cherry Hill. He had moved to the U.S. in the 1990s and made a living exporting cars to Egypt ; in some cases, they had been reported stolen. Convictions for fraud littered his record. “They showed me a photograph and asked me who it was in the picture”, he told The Intercept by phone. “The FBI don’t come and ask you if you know someone if they don’t already know the answer”.
The man in the photograph was Mohamad Shnewer, Eljvir Duka’s friend and future brother-in-law. Omar knew Shnewer in passing from shopping at the Shnewer family’s halal grocery store. The FBI told Omar they needed to know what Shnewer and his friends were up to and asked Omar to become an informant. He agreed.
Shnewer was a taxi driver in his early 20s whose sister was engaged to Eljivir. The Duka brothers, who describe Shnewer as immature, seemed to be his only friends. They were older and had the cachet of being tough guys from Brooklyn. Shnewer was always trying to impress them, Burim remembers. “One time, he told us that a passenger in his taxi refused to pay the fare, so he got out of the car and hit him across the head with a baseball bat”, he says.
Burim believes that story, like many of the others Shnewer would tell, was a lie.
Omar began coming to the grocery store with increasing frequency to befriend Shnewer. For Shnewer, the older man quickly became a mentor and a confidant. As their relationship developed, they began to discuss politics, religion and the ongoing wars in Iraq and Afghanistan.
While it’s unclear how the conversations began, it’s apparent from the FBI’s recordings with the informant that Shnewer was receptive to the idea of violence. Shnewer told Omar that that he spent time on the Internet watching graphic combat footage from Iraq.
The informant encouraged his new young protégé, suggesting that Shnewer move beyond listening and talking ; it was time to “do something”, Omar said, and the two began floating ideas of what that “something” might be. In August 2006, Omar and Shnewer began discussing the idea of launching an armed attack against Fort Dix military base, close to Trenton, New Jersey.
But only Omar and Shnewer were formulating plans for an attack. In a conversation recorded on August 2, 2006, Omar pressed Shnewer to come up with other recruits for their plot. “You and I are not enough, and you had told me that maybe there could be other people”, Omar said. “Otherwise, we can’t do anything”.
“No, no, no when I tell you I have people, that means I have people”, Shnewer responded. “Listen I will not talk to anyone about matters like these unless I trust them”.
In the same conversation, Shnewer brought up Serdar Tatar, also a close friend of the Dukas, whose father owned a pizzeria near the Fort Dix base. Tartar dreamed of becoming a police officer, and Shnewer knew this, according to the Burim and his parents. Nonetheless, Shnewer offered Tatar up as a possible co-conspirator, mentioning a map of Fort Dix he’d used to deliver pizza from his father’s shop to the base.
Mohamad Shnewer : You know Serdar ? Who has the pizzeria close to here ?
Mahmoud Omar : So, what are your thoughts about him ?
Mohamad Shnewer : He is ready…. he has a map…. he used to deliver there.
Mahmoud Omar : Ready to be killed ?
Mohamad Shnewer : Yes !
Two days later, Omar asked Shnewer again about possible conspirators for the attack.
“So who do you have in mind ?” Omar asked.
Shnewer replied : “I have Tony, Eljvir and Shain in mind”.
In U.S. criminal law, a conspiracy is an agreement between two or more persons to commit a crime at some time in the future. It is an agreement to break the law ; it doesn’t have to be a plan. Once two individuals enter into an agreement, the crime is complete, though some statutes require evidence that concrete steps have been taken. But an individual cannot enter into a conspiracy with a government informant. So unless Shnewer could convince the others to join the plan to attack Fort Dix, there would be no criminal conspiracy.
Omar apparently felt more comfortable approaching Tatar than the Duka brothers and began courting the 23-year-old. He told him of the plot to attack Fort Dix and openly asked for his help : he needed the pizza delivery map.
Tatar, who had since left his father’s pizza shop and moved to Philadelphia, was working at a 7-Eleven when Sgt. Dean Dandridge of the Philadelphia Police Department came by for his daily coffee. On November 15, 2006, Tatar told Dandridge that he believed Omar might be planning a terrorist attack. Neither Tatar, nor Dandridge, had any way of knowing that Omar was an informant.
Dandridge left Tatar’s information with the FBI, expecting the bureau’s agents would be in touch soon. For three weeks, Tatar waited for the FBI to contact him. In the meantime, he recorded at least one conversation with Omar, so that when the authorities did reach out, he would have information to give them. Eventually and inexplicably, after repeated prodding, Tatar gave Omar the map of Fort Dix.
When a Philadelphia police detective assigned to the FBI’s Joint Terrorism Task Force spoke to Tatar, he downplayed the threat and refused the audio that Tatar had recorded. The agent asked Tatar if he had indeed given Omar the map. Suddenly scared, Tatar lied. That lie would later implicate him in the conspiracy.
Having succeeded in this haphazard way of ensnaring Tatar, Omar relentlessly tried to persuade Shnewer to set up a meeting with the Duka brothers to discuss “the plot”. But the meeting never seemed to materialize. Time and again, Shnewer found excuses to explain why this didn’t happen. For example, on September 14, 2006, Shnewer, after much hesitation, told Omar that Shain knew about the plot, but not of Omar’s involvement.
As months passed, Shnewer tried to assure an increasingly skeptical Omar that the Duka brothers were on board with the developing plans. When Shnewer failed to provide proof of their actual involvement, Omar pressed harder, asking Shnewer to pursue the brothers, and Eljvir Duka in particular. Between August 11 and September 19, 2006, Omar asked Shnewer about Eljvir 197 times.
Finally, after months of failed efforts, Omar told his FBI handlers that, in his estimation, Tony and Shain Duka knew nothing about the plot and seemed to be more focused on taking care of their families.
“I’m saying it again, those Dukas, they didn’t tell me nothing”, he said in a recent phone call with The Intercept. When asked how the FBI responded to his view of the Dukas, Omar replied : “They said it was none of my business. I just wear the wire and record”.
As Omar struggled to link the Duka brothers to the plot he’d developed with Shnewer, the FBI decided to introduce another informant into the case.
Besnik Bakalli, a 29-year-old undocumented immigrant from Albania, was sitting in a Philadelphia jail awaiting deportation when the FBI approached him about becoming an informant. Agents showed him pictures of the Duka brothers and told him to meet them at a Dunkin’ Donuts in Cherry Hill, where the Dukas often went after Friday prayers at the nearby Palmyra mosque.
When the Dukas walked into the Dunkin’ Donuts on a Friday in July 2006, Besnik was talking on the phone loudly in Albanian. The naturally gregarious Dukas overheard him and introduced themselves, ultimately befriending the informant. The FBI’s plan to quietly integrate their second informant into the lives of the Duka brothers was unfolding successfully.
Over the course of the next ten months, Bakalli saw the Duka family often. Over dinner with the brothers, Lata and Firik, he portrayed himself as a down-on-his-luck fellow Albanian, recently divorced and in dire emotional and financial straits. “He told us a former friend of his tried to rape his sister”, Shain says. “He got out of prison, heard the news, and got in an altercation, which killed this individual. After this, he said his life was in jeopardy. He came to America illegally and now is in a foreign land, alone and homesick. This was Besnik’s story to the family”.
The family took pity on Bakalli and took him in as one of their own. Firik Duka, whose roofing business continued to grow, hired him to work a few shifts at job sites around New Jersey and Philadelphia. Lata even tried to help Bakalli find a wife with whom to settle down.
Bakalli told the Dukas that he wanted to become a better Muslim, and the brothers agreed to help him. “This is when all the questions began to roll in”, Shain says. “What is jihad ? Do we have to perform jihad ? Me and my brothers did not take these questions as out of the ordinary. At that time all you heard on TV was jihad, terrorism, Islam this, Islam that. We thought he was just new and trying to understand, no red flags were raised !”
As they had both penetrated the same group of friends, Omar and Bakalli occasionally bumped into one another. Neither knew the other was an informant. “I hated the guy —didn’t like the look of him at all”, Omar told The Intercept.
The boys trusted Omar and Bakalli. Omar bonded with the Dukas over cars, a topic the brothers obsessed over. Surveillance transcripts reveal conversations with both informants that ranged from food to family to work.
World events, particularly those that affected Muslims, also came up. The men often discussed their opposition to U.S. involvement in the wars in Iraq and Afghanistan, then at their peak. They talked about the perceived targeting of Muslim-Americans by law enforcement and debated what role, if any, Muslims living in the U.S. had in assisting other Muslims resisting American aggression. They often couched their discussions of these topics in religious terms.
Shnewer and Omar spent much of their time together watching jihadi videos and listening to radical lectures on tape, often playing them in the Dukas’ presence. The Dukas also watched these videos, sometimes responding positively. Tony got particularly riled up by a lecture called Constants of the Path of Jihad by Anwar el-Awlaki, a Yemeni-American who would later be killed in a U.S. drone attack. He played the audio for his brothers and Bakalli, and in what would later be characterized as evidence of his radical beliefs, was recorded saying, “This is the real truth, straight up, no holds barred !”
Yet the brothers never talked about an actual plan to commit an act of terrorism. Discussing the various forms of jihad, Eljvir asserted, on questioning from Bakalli, that the daily struggle against personal vices like greed and lust is the greatest form of jihad.
In a conversation on September 22, 2006, Omar told Eljvir that he and Shnewer had been working on a “plan”, without providing specific details. Eljvir told them they should seek out a fatwa, or an Islamic legal opinion. While the prosecution would attempt to frame this comment as Eljvir seeking religious authorization for the Fort Dix plot, Omar undermined this claim at trial, conceding under cross-examination that Eljvir was unaware of plans pertaining to Fort Dix.
In other conversations, Bakalli continually pressed the Dukas to “do something", and shamed them for not taking some kind of action to defend Muslims. During one heated conversation with Bakalli, Tony was recorded saying that he was “going to start something”, and that “you can do a lot of damage, man, seven people”. This statement would later be held as a damning self-indictment of the brothers’ intentions, but again, it never translated into real follow-up action or planning.
Despite their best efforts, Omar’s and Bakalli’s attempts to get the Dukas to put radical ideas into action didn’t gain traction. A month after Tony’s angry statements, Bakalli tried to get him to firm up plans to “do something”. At this point, Tony essentially recanted his incendiary words :
“We can’t … we … the biggest Jihad for us here in America is to spread Islam … That’s the most important thing. That is war, believe me. That is Jihad. Jihad is not just, like we say, to go fight. No people misunderstand it. … The first Jihad is with yourself, when the devil tells you, do this, you try, you fight with the devil. No, no, no. I won’t do it. Then the second Jihad is with your family. To work. To teach Islam to your children. Then you should spread Islam in, to tell others, this is Islam”.
Bakalli pressed, but Tony held firm. “Our biggest obligation for us is our family, especially for me with children”, he said.
In early 2007, the Dukas were joined by Bakalli, Shnewer and Omar on another “boys weekend” in the Poconos. The informants were promised horseback riding, hikes in the woods, “an epic game of paintball” and a shooting range. While playing paintball with Tony, Omar likened the game to military training. “This is like an army exactly”, he said, according to court testimony.
This second Poconos weekend, now infiltrated by two government informants, came and went without any discussion of a plot against military personnel. Instead, the brothers and their friends mostly spent hours watching videos of Eddie Murphy and Dave Chappelle stand-up comedy, in between horse riding and paint-balling.
At this point, roughly a year into the case, despite hundreds of hours of surveillance and the employment of two paid informants, the Dukas still had not been induced to commit any criminal act. The stakes were raised and an illegal gun deal was set up.
The Dukas loved guns ; their Albanian heritage extolled firearms as a virtue of masculinity. “In Albania everybody has a gun in the house”, says Firik. “It’s normal for any man to have one there”.
Omar knew about the brothers’ enthusiasm, and he also knew that without proper immigration documents they couldn’t legally buy firearms in the U.S. It was a sore spot for the Duka brothers, all of whom had tried to apply or were in the process of applying for asylum status. In the Poconos, unlike other visitors who owned personal firearms, the Dukas had to wait in line for rentals at the shooting range.
In March 2007, Omar approached Tony with an offer : a friend in Baltimore with a gun shop was looking to make some under-the-counter sales of guns valued at the discounted price of $500 apiece. This offer was too good to pass up, and after being assured that this guy was “legit”, Tony agreed to take look at what Omar’s friend had in stock.
The boys knew the transaction wouldn’t be legal. “Being an illegal alien did prevent us from purchasing our own guns legally”, Shain says. “At the time, me and my family were in the immigration process. We even hired a lawyer, and we were going to do papers properly when that was done. We always believed that these guns could be transferred legally to my name once we received our papers”.
In a separate conversation that same month, Omar spoke with Shnewer without the Dukas present.
Mahmoud Omar : By the way, I want to ask you a question, I want you to tell me seriously. Eljvir and Tony, do they know, for example why we’re getting the handguns or … ?
Mohamad Shnewer : Yeah, of course.
Mahmoud Omar : Don’t tell me you didn’t tell them, Mohamad.
Mohamad Shnewer : Yeah, they know.
Mahmoud Omar : That we, for example, are training in anticipation for something like this in the future ?
Mohamad Shnewer : Yeah !
On March 28, 2007, Omar provided Tony with a list of available weapons from his fictional Baltimore source. This list had in fact been created by the FBI. Inexplicably, in addition to AK-47s, handguns and M16 rifles, it also included heavy weapons like a rocket-propelled grenade launcher —used to destroy tanks and other armored vehicles— as well as an M-60 machine gun. Burim, who was 15 at the time, remembers Tony coming home and wondering how Omar’s guy could be “legit” if he was selling RPGs and M-60s, which are heavily regulated in the United States.
On April 6, 2007, Tony went back to Omar and told him that he was interested in the AK-47s, the M-16s and the handguns, but not the heavy weapons. In a recorded conversation, he expressed concerns :
Tony Duka : Is there something I need to know ?
Mahmoud Omar : Like what ?
Tony Duka : Who … that list, there was some stuff on that list that was heavy shit … the RPG …. Yeah, with rockets. That’s why if you know something I don’t know, ah, please tell me man.
Omar assured Tony that his friend in Baltimore was trustworthy.
On May 7, 2007, Tony and Shain met Omar at his apartment, which had been paid for that month by the FBI. As the brothers inspected the firearms they planned to purchase, audio recordings reveal Tony commenting, “Now we don’t have to wait in line to shoot in Poconos”.
Minutes later, police burst into the apartment and wrestled Tony, Shain and Omar to the floor. “I had no idea what was going on when it happened”, Shain wrote from prison. “I assumed we were being arrested because of the guns, which I knew we were buying from Mahmoud illegally”.
The men were put into police cars and eventually taken away to a Philadelphia detention center.
While Shain and Tony were being arrested at Omar’s apartment, Burim and Eljvir were driving home after taking Tony’s five kids to a Mister Softee for ice cream. As they pulled up to Tony’s apartment, they noticed police cruisers and SWAT vans surrounding the building. Burim got out of the car to ask an agent what was going on, and both he and his brother were handcuffed.
Eljvir was transferred to the same detention center as Shain and Tony. The teenage Burim was not arrested, but left handcuffed under a tree while officers searched Tony’s apartment. Burim recalls an armed agent telling him, “Don’t grow up to be like your brothers”. He later added, “You should think about finding yourself a new religion”.
Tony, Shain and Eljvir spent the night wondering how they were going to get out of what they assumed would be gun charges.
The next morning, the brothers, along with Tatar and Shnewer, who had been seized in separate raids, were driven in a black-tinted police van past throngs of reporters and cameramen to the federal courthouse in Camden, New Jersey.
Inside, they were presented with a criminal complaint accusing them of conspiracy to murder U.S. military personnel. “I was confused at first, but for the most part I breathed easy when I saw that”, Shain says. “I figured they mixed us up with someone else and we’d be out of here as soon as we cleared things up”.
As Shain remembers, the boys were taken to a holding cell and instructed to read through the complaint in its entirety. Shain read aloud to the group. The complaint consisted almost entirely of Mohamad Shnewer’s private conversations with Mahmoud Omar. “After reading it we all turned to Shnewer”, Shain says. “Is this really true ! ? You went to a military base, you said this and that ! ? Who the hell is Confidential Witness #1 ? ! Mahmoud Omar was an informant ? Unbelievable ! We were all pissed at Shnewer”.
It became clear to the brothers that Shnewer, in his conversations with Omar, had committed them to taking part in a “plot” to attack Fort Dix without their knowledge.
The five men were charged with conspiracy to attack military personnel, as well as with weapons offenses for the guns they had attempted to purchase from Mahmoud Omar.
At a press conference announcing the indictments, U.S. Attorney Chris Christie praised law enforcement for stopping an impending threat, painting a dark portrait of the alleged plotters. “Believe me, too”, he said. “These people were ready for martyrdom. They spoke about martyrdom extensively in the tapes. They said they were to do this in the service of Allah”.
The Dukas were arrested in the spring of 2007, but not brought to court until the fall of 2008. In the interim, the brothers were held in pretrial solitary confinement at the Philadelphia Federal Detention Center. “The prison guards would ransack our cells and throw our Quran on the floor, but leave the rest of stuff alone”, Shain recalls. “We quickly realized that they were actually being serious about this”.
In opening arguments for the trial, presented in October 2008, the prosecutors’ case relied heavily on the two key informants. Omar was eventually paid $238000 for his efforts, while Bakalli, who earned a minimum of $1500 a week for his involvement, seems to have received additional benefits. He was facing deportation to Albania, where he had been involved in a shooting, and testified that in exchange for his cooperation with the FBI, he was allowed to remain in the U.S. The Albanian government also pardoned him.
Before proceedings commenced, New Jersey District Judge Robert B. Kugler granted a motion by prosecutors to keep the names of the jury anonymous, agreeing with the government that the trial represented an exceptional case requiring protection of the jurors’ identities.
At trial, Assistant U.S. Attorney William Fitzpatrick argued that the Duka brothers had been inspired by jihadist ideology. “Their motive was to defend Islam”, he told the jury. “Their inspiration was al Qaeda and Osama bin Laden. Their intent was to attack the U.S.”
The government set out to prove that between January 2006 and May 2007, each of the Duka brothers had entered into a conspiracy to murder members of the U.S. military. Prosecutors wouldn’t necessarily find a formal, written or oral agreement spelling out the details of the understanding. They just needed to demonstrate, based on the brothers’ “state of mind”, that the Dukas had knowingly and willfully entered into an agreement, and that at least one of the brothers had performed an overt act to further the agreement.
As was written in the jury instructions :
“Often the state of mind with which a person acts at any given time cannot be proved directly, because one cannot read another person’s mind and tell what he or she is thinking. However a defendant’s state of mind can be proved indirectly from the surrounding circumstances. Thus, to determine a particular defendant’s state of mind at a particular time, you may consider evidence about what the defendant said, what he did and failed to do, how he acted, and all the other facts and circumstances shown by the evidence that may prove what was in that defendant’s mind at that time”.
Since the Dukas were never recorded agreeing to take part in Shnewer’s and Omar’s plot to attack Fort Dix, the government had to prove they were still involved in other, more indirect ways.
For example, the court allowed into evidence the recording of Tony Duka saying he was “going to start something”. In future recordings, he seemed to repudiate this statement, saying, “the biggest Jihad for us here in America is to spread Islam”. But, as mere hearsay, the judge did not allow this statement or others to be presented to the jury unless the defendants were allowed to be cross-examined, meaning Tony would have had to give up his right not to testify. Even though the brothers wanted to take the stand, their lawyers urged them not to do so.
Prosecutors for previous U.S. terrorism cases have sought to establish participation in a conspiracy by displaying videos or websites found on a defendant’s computer that show frightening Islamist propaganda. Mahmoud Omar, during the time he spent with the Dukas’ co-defendant Mohamad Shnewer, asked Shnewer to download many of these videos, which the Dukas sometimes also watched. The prosecution played these videos to the court over the course of several days.
Shain described one juror’s reaction to a lengthy video pulled from Shnewer’s computer of U.S. soldiers being killed in battle by insurgent snipers : “Juror No. 3 got up from her seat before exiting for the break, gave us all a stare of death, turned around and slammed the binder of transcripts”. Juror No. 3, whose name remained concealed, would later tell the Philadelphia Inquirer that it was difficult for her to watch the video because her own son was a marine who had served two tours of duty in Iraq. “I thought I was seeing my son getting hit”, she told the paper.
The prosecutors claimed these videos, along with the Anwar al-Awlaki tapes, which the Duka brothers listened to in the presence of government informant Mahmoud Omar, served as inspiration and guidance for the Fort Dix operation.
To demonstrate this connection, the prosecution called Evan Kohlmann to the stand as an expert witness on Islamic terrorism and the use of digital media to promote terrorism. Kohlmann, who in 2014 was featured in a Human Rights Watch report on dubious terrorism prosecutions, testified that the defendants had been watching “some of al Qaeda’s best work”, and that their consumption of the videos suggested “a clear, considered, and present danger to the community”.
Yet Kohlmann’s analysis has come under considerable scrutiny in recent years. Fawaz Gerges, a professor of international relations at the London School of Economics, told New York magazine, which profiled the self-styled terrorism expert, that Kohlmann was in the “guilty verdict industry”. In an email to The Intercept, Gerges explained that prosecutors consider Kohlmann a “hired hand”, willing to say “whatever it takes” in front of a jury to help secure convictions.
During his testimony, Kohlmann portrayed the acquisition of guns from Mahmoud Omar, in addition to the heated statements the Dukas made about American foreign policy, as evidence of jihadist activity. As for the dearth of evidence substantiating an actual plot, Kohlmann told the jury, “It doesn’t take a lot of sophistication to kill people. Ultimately, it comes down to intent”.
On December 22, 2008, after six days of deliberation, the jury found the Duka brothers and their two friends guilty of conspiracy to kill members of the U.S. military at Fort Dix.
In determining sentences for federal crimes, judges take into account as a starting point the guidelines issued by the U.S. Sentencing Commission. The guidelines have “adjustments” that can be enacted at the judge’s discretion, which can fundamentally change the duration of a sentence. Among these, the terrorism adjustment has the most drastic effect of lengthening sentences.
The Dukas had been found guilty of one count of conspiracy to commit murder and three counts of illegal firearm possession. On those charges alone, they might have faced sentences of up to 24.5 years. But the prosecution requested that Judge Kugler apply the terrorism adjustment, which would dramatically increase that time.
On January 26, 2009, Judge Kugler received a handwritten letter from Mohamad Shnewer, who was awaiting sentencing in solitary confinement at the Philadelphia Federal Detention Center. In his letter, Shnewer described “boastful” discussions with the government informant and confessed to making “lies and allegations” about the Duka brothers’ knowledge of the Fort Dix plot. They were “clueless” about this plan, he wrote.
In April 2009, the Dukas, Tatar and Shnewer were brought before Judge Kugler for sentencing. Shain stood before the court and spoke out against the verdict. “A lot of money has been spent. Millions have been spent on this case. As if money has brought the truth of the matter”, Shain said. “We have stressed over and over again that they’ll lock you up for nothing, they’ll build a case on you. Today we have become victims of what we stressed so very often”.
Delivering Shain’s sentence, the culmination of a terrorism case that had lasted over two years, Judge Kugler said, “It’s not my place or desire at this time to review all the evidence … Suffice to say this defendant was in the middle of this plot. I’m realistic, I remember that they weren’t being taped 24 hours a day seven days a week”.
Brushing off the lack of direct evidence, Kugler added : “That there isn’t more explicit evidence does not concern me and obviously didn’t concern the jury either … I cannot deter this defendant, because of his belief system, from further crimes”.
Shain and Tony were sentenced to life in prison, plus 30 years. Eljvir, who was not convicted of the firearms offenses, received life in prison.
In a public statement made after the Dukas’ sentencing, acting U.S. Attorney Ralph Marra said, “The hatred and contempt these young men hold for America and the rule of law was made abundantly clear”. The life sentences were appropriate, he argued, to “protect the public from them and their deeply held, radical beliefs”.
In the years since the convictions, the lives of the Dukas and Chris Christie, the U.S. attorney who prosecuted the brothers’ case, have taken vastly different trajectories. Christie won his race for governor, and is now a likely contender for the Republican presidential nomination.
Christie often cited the Duka case as a highlight of his career. In a 2012 speech to the American-Israel Public Affairs Committee (AIPAC), Christie recalled his success in the “uncovering of a plot to kill American servicemen and women”, telling a packed audience at the New York Hilton Hotel that he helped send to prison a group of “Muslim men practicing with semi-automatic weapons and screaming about jihad against the infidels”. Today, both the Republican Governors Association and the New Jersey Republican Party list the Fort Dix case as “one of Christie’s finest moments” under his biography.
Meanwhile, the Duka family is struggling. Tony’s five children are growing up without a father. Lata and Firik are faced with raising their grandchildren on their own. Burim, the youngest Duka brother, now 24, and the only one to escape entanglement in the case, dropped out of school to become the family’s primary breadwinner. The Dukas believe they have remained under surveillance. Firik says the FBI once came to the house and threatened to take Burim away. “We lost so much, and today we are barely surviving”, he says. “We live with broken hearts”.
While Shain is imprisoned at a high-security facility in Kentucky, Tony and Eljvir are being held at the infamous ADX Supermax (4) prison in Florence, Colorado, which houses some of the nation’s most dangerous criminals and has famously been described as “a clean version of hell”. Tony and Eljvir have both spent portions of their sentences in solitary confinement, and Eljvir remains in isolation. Despite being locked up in the same prison for years, the two have never seen one another. Without the terrorism adjustment, they might have been released as middle-aged men. With it, they will likely die in prison.
Having exhausted all appeals, the brothers are filing a 2255, or writ of habeas corpus, which is a motion to set aside a sentence on the grounds that it was imposed in violation of federal law. Their appeal hinges on the argument of ineffective performance by their public defenders, but such appeals are rarely successful.
Far away from home, Shain, Tony and Eljvir’s periodic phone calls across the country are their only remaining link with their families. They say they find strength in God and knowledge of their innocence. Eljvir ends every call home with, “God willing, we will be reunited soon, not only in the next life, but this one too”.
Years later, the brothers still look back with incredulity at the events that led to their present situation. The needy friends exposed as government informants, the high-profile arrests and terrorism charges, and finally the life sentences that permanently altered the course of their lives. “We had plans for the future, we were expanding our business just weeks before, our families were growing”, Shain says. “Now, suddenly, we have been buried alive”.
More than seven years after the trial, the person who was arguably the most critical in securing the convictions still agonizes over his role in the case. In a recent interview with The Intercept, Mahmoud Omar, the informant, maintains that while Mohamad Shnewer was involved in the Fort Dix plot, the Dukas, whom he describes as “good people”, were innocent. “I still don’t know why the Dukas are in jail”, he says.
Murtaza HUSSAIN and Razan GHALAYINI. Sheelagh McNEILL contributed research to this report.