Originally published under the title "First Known Convicted Terrorist Asked For 'First Step Act' Early Prison Release. Have More Followed?"
Just a few months since passage of the so-called First Step Act, we now know that the kinds of convicted criminals actually gaining early freedom are not the docile mice promised in the big sales pitches for this trumpeted bipartisan bill passed by the split Congress in December and signed by President Trump. The proposal was loudly billed to secure early releases of first-time, low-level, nonviolent drug offenders to home confinement on grounds that they'd gotten raw sentencing deals at a time when America was tamping down the crack cocaine-fueled national crime plagues of the early 1990s.
But alas, it turns out that all sorts of extremely violent predator criminals are getting out instead of, or at least in addition to, the harmless nonviolent crooks. No government official has responded to or explained Fox News reporting that hundreds of First Step beneficiaries were in for high-violence weapons/explosives-related crimes, sex offenses, fraud/bribery/extortion, homicide and aggravated assault.
What's next? Convicted Islamist terrorists?
The answer, it turns out, is yes. Probably. I stumbled across perhaps the first such case. This past March, Bureau of Prisons Inmate No. 9627173 – Plano, Texas wife and mother Sumaiya Ali – asked a federal judge for early release from her terrorism sentence under the First Step Act. It is the first such case that I know of, but if this has occurred once, more are likely in a pipeline emptying out potential terror recidivists into the nation, a prospect about which I wrote that we are not well prepared for as a homeland security matter. This law was hastily passed and needs to be revisited before people start getting hurt.
She Wasted No Time
Ali was convicted in 2017 for lying to FBI counterterrorism investigators along with her husband, Mohamed Ali, that they had no idea their two sons Plano Senior High School graduates Arman and Omar Ali, traveled to fight with ISIS in Syria (neither have been heard from since). This was an all-in-the-family ISIS affair about which I wrote more fully in this March 2019 column.
It can be argued that Sumaiya Ali hits the threshold of nonviolent activity on behalf of terrorism. But buried in the court files, the evidence indicates that both parents were fully supportive of violent jihad for their sons on deeply held religious grounds, gave their influential blessings that the boys kill infidels for an ISIS caliphate, and possibly even planned to join or visit them in the region until the FBI prevented them from boarding a plane at Dallas/Fort Worth International Airport.
Dad got about a year in prison for wittingly covering up what he knew about his sons and was released at his scheduled time April 17 of this year into a halfway house, according to BOP's public inmate locator. But mom took an additional 30 months for lying longer and harder. She won't be released until April 13 of next year from the FMC Carswell facility in Fort Worth, Texas. This seemed more than Ali wanted to stand.
Shortly after the December 2018 First Step Act implementation, Ali asked U.S. District Judge Marcia Crone for early release (wrongly, it later turned out). In a January 8, 2019 letter couched as "a desperate plea of a mother," Ali asked to serve the remaining sentence on home confinement or in a half-way house. As grounds, she cited the emotional struggles of her "withdrawn" and "embarrassed" 14-year-old daughter Sabeen, who is living with her brother and sister-in-law in Houston, ashamed her parents were in prison and that her older brothers were fighting overseas for a barbaric cause.
"She has lost her whole family and finding it very hard to cope with this traumatic situation...She is the innocent victim of the terrible choices that I made, and I take full responsibility for her predicament," Ali pleaded, in part.
Tailoring a Claim to Fit First Step Act Provisions
To better grasp what Ali is trying to do, It will help to know something about the two main provisions of the First Step Act, both of which apply retroactively to already-sentenced people. One provision addresses the front-end reductions for the old mandatory sentences for repeat drug traffickers. Sumaiya Ali is hoping to tap the other provision, as outlined in Section 3632, part D, that would allow removal to alternative spaces for up to a third of total sentences. These are granted among other rewards to inmates who can demonstrate they have participated in "recidivism reduction" programs.
Processes not being very well ironed out yet, Ali asked the wrong person for the break: a federal judge, rather than Bureau of Prisons administrators. In March 2019, Ali filed a second request to Judge Crone for the law's holy grail of release to a half-way house or to home confinement. The two-page legalistic letter seemed to hit the necessary right chords. For example, Ali asserted that she had been a model prisoner with an excellent work history while incarcerated, and was a nonviolent first offender.
She listed some dozen or so adult-education classes she took in jail: Forbidden Tombs, In the Womb, Untold Secrets of the Titanic and Modern Marvels, among them.
"A final question arising for this honorable court to answer would appropriately be whether (it) would encourage the individuals who successfully participated in correction self-improvement and rehabilitation program by granting these individuals downward (sentences), and in so doing, boost the confidence of the participants in their improvement and skills letting them become more productive members of society?"
Down But Possibly Not Out
Judge Crone, however, correctly ruled that she had no jurisdiction to shorten Ali's sentence or change where she serves it; the Bureau of Prisons does.
"Moreover, to the extent Ali asserts that the First Step Act of 2018, Public Law Number 115-391 mandates that the BOP release her to a half-way house or home confinement for any period of time, she is in error," Judge Crone concluded. "Under the current version... 'the BOP is authorized to consider placing an inmate in a community correctional facility...Consistent with the forgoing analysis, Ali's motion is DENIED."
Nothing else in the court file indicates whether she has pressed her case with BOP, but it seems highly likely that she has. We will no doubt know the outcome of that only after an early release.
More importantly, the Ali case stands as a strong first indicator that those convicted of terrorism-related crimes are eying the First Step Act and that anonymous BOP bureaucrats have the unchecked power to grant them benefits as they evidently have to those convicted of explosives-related charges and sex offenders.
Government Bureaucrats Given Extraordinary, Un-checked Power Will Need to be Checked
A problem with the First Step Act that seems immediately obvious, given the Fox News reporting, is that decisions as to whom to release are left to the wide discretion of Federal Bureau of Prisons officials subject to little accountability, external persuasion campaigns, and orders from higher-ups. No language in the law specifically limits the criteria to low-level, non-violent drug offenders that were once advertised.
Release decisions under the First Step Act are left to the wide discretion of the Federal Bureau of Prisons.
This law undoubtedly will one day be amended after some beneficiary of it commits a depraved crime of one sort or another. The question in the meantime is whether these newly powerful BOP adjudicators who consider requests from terrorists and their friends can be forced to exercise restraint prior to bestowing benefits on terrorists in addition to rapists and felons who used explosives in their crimes.
Fox News, in its investigative report, found that two inmates involved in "national security" issues were among those released with the rapists and murderers. No details about these are offered. The Ali case shows that others involved directly or on the fringes of ideologically motivated terrorism, who see mass-casualties as an objective, also will be showing up among First Step Act applicants.
Ali likely is not interested in violence herself. But Congress and everyone involved in the decision chain should remember that bloodshed terrorism is only made possible when non-violent supporters provide the incitement, recruitment, moral support, finances, ammunition, and guns that make the killing possible.
Todd Bensman is a fellow at the Middle East Forum and a senior national security fellow for the Center for Immigration Studies. Bensman previously led counterterrorism-related intelligence efforts for the Texas Intelligence and Counterterrorism Division (ICD) for nearly a decade.