A Different Kind of Defense

Three upstate attorneys talk about the high secrets and public hysteria that come with representing accused terrorists

Published in 2007 Upstate New York Super Lawyers — September 2007

Defense attorneys are used to representing unpopular clients. But accused terrorists? Three upstate New York attorneys recently discovered that representing America’s public enemy number one can present some unique challenges. 
 
 
Stung in Albany 
 
An FBI sting operation in New York’s capital city led to a career first for two hometown attorneys. U.S. Magistrate Judge David Homer tapped Terence L. Kindlon, 60, and Kevin A. Luibrand, 48—both veterans, both experienced in federal cases—to defend clients against terrorism-related charges. Not murder. Not civil rights violations. Terrorism.
 
Yassin Aref, a spiritual leader at an Albany mosque, and Mohammed Hossain, owner of a local pizzeria, were charged with money laundering in a fictional terrorist scheme. Both men were accused of helping an FBI informant who pretended to be an illegal arms dealer. The FBI said Hossain (defended by Luibrand) was interested in money from the deal, while Aref (defended by Kindlon) was aligned with terrorist ideologies. 
 
Kindlon and Luibrand believed—and still maintain—that their clients were victims of entrapment. “There was no question they were out to get [Aref],” says Kindlon, partner of the Albany law firm Kindlon Shanks & Associates. The FBI used “tremendous resources” to do the job. “The [U.S.] Department of Justice had its thumb on the scales of justice.”
 
Aref was a refugee from Kurdistan who came to the United States as part of a United Nations program. He earned bachelor’s and master’s degrees in Damascus, Syria. “In addition to being brilliant and fluent in three languages, he’s a charming, engaging guy,” Kindlon says. “Yassin is a victim of the hysteria that was generated with 9/11.” 
 
A 50-year-old pizza parlor owner and family man, Hossain was simply a means to an end for the FBI, says Luibrand, a partner at the Albany firm Tobin & Dempf. “The government agreed he had never been involved in any terrorist ideas, thoughts, anything.”
 
“The reality is, the people accused of these kinds of things are little guys,” Kindlon says—Aref made less than $20,000 a year as a local spiritual leader. So Kindlon was paid at the going federal rate of $92 an hour. “You don’t make money on a case like this. You just hope you don’t lose money on it.”
 
Why did Kindlon choose to defend Aref? “I think it was a hugely important case as far as the Constitution was concerned. There are times when the only thing standing between good government and despotism is a good lawyer with a subpoena in his hand.
 
“The Constitution has to work for everybody,” Kindlon says.
 
As for Luibrand, he was in Boston working on a case when he saw an article in the Boston Herald about the Hossain/Aref sting operation. “I thought it was significant and interesting, but I put it aside,” Luibrand says. Then he got the call from Judge Homer asking him to defend Hossain. While Luibrand had experience in federal courtrooms as a civil rights defender, he had never handled the defense of an accused terrorist. “It was the first terrorism-related case in the area—probably ever.”
 
Both Kindlon and Luibrand had to go through national security clearance procedures because of the nature of their clients’ charges. “When you get to Albany, New York, [security clearance] is a pretty rare occurrence,” Kindlon says.
 
The FBI granted Kindlon and Luibrand limited access to certain documents, which involved a secure filing cabinet in a secret room of the federal courthouse. Each man had a special room key to open the door, and a combination to open the filing cabinet. They weren’t allowed to bring a computer into the room, and couldn’t take any paper out. The sole contents of the cabinet were several sheets of mostly blank paper—nearly every word had been censored by the government.
 
“That was sort of unprecedented in my career as a lawyer,” Kindlon says. Adds Luibrand: “It starts out that you become concerned about your case … then you go in there and realize that they didn’t have anything.”
 
Security wasn’t their only difficulty. “The necessity of learning the history of government and politics in the Middle East was a tremendously burdensome undertaking,” Kindlon says.
 
Before the trial began in fall 2006, Kindlon faced additional challenges—including a 10-week murder trial and surgery on a clogged artery. “2006 was the worst year I’ve had since Vietnam,” where Kindlon was seriously injured in combat in 1968. “I was maxed out,” he says. To rise to the challenge of defending Aref, Kindlon enlisted the help of attorney Kathy Manley,  paralegal Amy Hiller, retired attorney Steve Downs and co-counsel Kent Sprotbery. “[Sprotbery] was wonderful—he took a lot of the pressure off.”
 
A politically charged atmosphere and emotionally motivated jury led to Aref’s conviction, Kindlon says. “If we had tried his case six months later, he would have walked. I am hopeful about our chances on appeal.” Luibrand notes the trial started on September 12—following an entire weekend’s coverage of the five-year anniversary of 9/11. “People wanted to hear evidence that these guys did that.” He hopes an upcoming appeal heard by judges, not a jury, will give his client a better chance. “[A judge] has to apply the law to facts. It’s more sanitized, looking at paper, not a Middle Eastern fellow with a beard and an accent.”
 
Aref is serving a 15-year sentence in the medium-security Communications Management Unit of the Federal Correctional Complex in Terre Haute, Ind., along with 200-plus others convicted of terrorism-related crimes. Hossain is serving his sentence in the medium-security Fairtown Federal Correctional Institute in New Jersey. 
 
The atmosphere during the case was charged. “Everything was suspicious,” he says. Guards gave them “more careful treatment.” Time frames for meeting with their clients in jail were restricted. “We got the feeling that everything we said was being taped,” Luibrand says, adding that it took time for their clients to trust the attorneys. When heading into the courthouse, he noticed sharpshooters on the roof across the street.
 
“We were put through paces we had never experienced before,” Luibrand says.
 
“I got a lot of nasty letters, weird threats, ugly e-mails—but you just keep going forward,” Kindlon says.
 
Kindlon describes the experience as 1984-esque, “weird beyond description.” He adds, “It’s not the America I grew up in. I hope I’ll be able to look back at this someday as a strange interlude in American history.” 
 
Adds Luibrand: “I’ve tried a lot of high-profile cases. But never did I have a case as stimulating.” If a similar one comes along, he says, “I’d take it in a second.”
 
 
Terrorists in Lackawanna?
 
Just like Kindlon and Luibrand, John J. Molloy, 65, was selected by a federal judge to represent his client, Mukhtar al-Bakri, in the Buffalo suburb of Lackawanna. All the defense attorneys for the case were hand-picked because “we’re experienced criminal lawyers who practiced in federal court,” Molloy explains.
 
Al-Bakri was one of the “Lackawanna Six”—all Yemeni-born Americans charged with providing “material support” to a foreign terrorist organization after attending an Afghan training camp in spring 2001. Al-Bakri and the others were described as a “sleeper cell awaiting orders from Osama bin Laden’s al-Qaida network.” But their attorneys called them “victims of misinformation.” 
 
Unlike Molloy’s typical criminal defense cases (“Murder is local,” he says. “It pretty much stays in the neighborhood.”), this case garnered national attention. The spotlight was “magnified by the charges and nature of the defendants. All the national press was here” for the bail hearing, he says. “CNN, cameras, media tents—I felt like Paris Hilton.”
 
Molloy was disappointed when the men opted to plead guilty rather than take their cases to trial. “There were issues that should have been litigated,” he says. But the clients were concerned about the potential penalty, and pleaded in hopes of lighter sentences. Al-Bakri was sentenced to 10 years in prison in 2003, and has been serving his sentence in Terre Haute along with Aref. “He’s in a difficult situation,” located so far away from his family, says Molloy.
 
While working the case, Molloy learned more about Lackawanna’s strong Yemeni population. “I got to find out they’re pretty nice people.”  

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