WASHINGTON - For a would-be fighter of the Islamic State, Mohammed Hamzah Khan has had it relatively easy with the American criminal justice system.
On October 4, 2014, authorities arrested Khan, then 19, at Chicago’s O’Hare International Airport as he and two younger siblings prepared to board a flight to Vienna en route to Turkey.
The nascent Islamic State’s promise of life under the caliphate was luring thousands of aspiring young fighters into Syria and Iraq. Khan, the U.S.-born son of Indian immigrants, had planned to join their ranks and never return.
His sister and 16-year-old brother were let go without any charges, but not Khan. Federal prosecutors charged him with attempting to provide “material support” to a foreign terrorist organization. He faced up to 20 years behind bars.
Except, that’s not how it turned out for Khan, whose case reflects leniency in the sentencing of some homegrown U.S. terrorists in recent years.
While sentences have averaged more than 13 years over the past three years, court records show a quarter of suspects have received four years or less. Khan was given one of the shortest sentences: He was released from prison last month after serving less than three years.
Making a distinction
Khan’s light sentence shows how U.S. prosecutors and judges have been willing to differentiate between the most dangerous defendants and those who are merely hangers-on, even as the Trump administration and U.S. Attorney General Jeff Sessions are promising a hard line on homegrown terrorism.
“They still want to pursue these terrorism cases, but there is a sense that these younger individuals may not rise to the danger level of some of those who fit a criminalized pattern,” said Karen Greenberg, director of the Center on National Security at Fordham University School of Law in New York.
The trend, seen in 2015-16 but not so far this year, followed years of criticism by human rights advocates and others who claimed the Justice Department and FBI were using informants and undercover agents to entrap naive terrorist sympathizers who otherwise posed no real risk.
Thomas Durkin, Khan’s attorney, said once his client agreed to cooperate, prosecutors “essentially accepted our arguments that Hamzah Khan was someone that had made a mistake, was young, that he was not dangerous, that he should be given a second chance.”
Two weeks ago, Khan was released into a halfway house. Durkin said his client would start classes at the College of DuPage, a community college west of Chicago, in August.
“He’s doing very well,” Durkin added.
Since the attacks of September 11, 2001, U.S. authorities have charged nearly 500 individuals in terror cases — 132 of them in connection with supporting Islamic State (IS) over the past three years, according to the Center on National Security.
At the height of the arrests, in May 2015, more than 15 people were charged a month. With fear of prosecution deterring travel to Syria and IS losing its allure, however, the number has dropped over the past year, with just six new indictments announced since January 20.
The Justice Department says stopping terrorist attacks remains its highest priority.
“[We] will continue to work to stem the flow of foreign fighters abroad and bring to justice those who attempt to provide material support to designated foreign terrorist organizations,” acting Attorney General Dana Boente said last week in announcing the latest IS case.
Sentences handed down in IS cases over the past three years have varied widely, from probation to life in prison.
More recently, in cases carried over from the Obama administration, judges have imposed steep sentences, with all but one sentence for more than 10 years. And where judges have shown leniency, they have set strict conditions, as was the case with Khan: up to 20 years of “supervised release.”
Justice Department officials were not available to discuss the recent Islamic State prosecution cases.
According to the Center on National Security, 49 percent of the cases have involved foreign fighters, while 61 percent of the cases have stemmed from the FBI’s controversial use of informants and undercover agents.
While some informant-based cases have resulted in relatively short sentences, others have ended with lengthier terms. Last year, Mahin Khan, an 18-year-old described by his family as mentally ill, received eight years on charges of planning terrorist attacks in Arizona. The charges stemmed in part from his contacts with an FBI agent he thought was an Islamic State operative.
Michael German, a former FBI special agent now with New York University’s Brennan Center for Justice, said authorities turn to confidential informants because “they seem to think it’s something that works to get convictions.”
The FBI has defended its use of informants, rejecting claims that the practice amounts to entrapment.
And even critics agree that not all terror prosecutions grow out of what they decry as ”manufactured cases.”
Case in point: Saddam Mohamed Raishani, 30, was arrested at New York’s JFK Airport last week as he tried to board a flight to Turkey. He had told an FBI informant how he had earlier helped an acquaintance travel overseas to join IS and regretted not having gone along with him.
Raishani “may really have wanted to go” without any enticement by the informant, said Greenberg of the Center for National Security.
As in criminal cases, cooperation with prosecutors can mean leniency for some terror suspects.
In sentencing a group of nine Somali-Americans charged with plotting to join IS, a federal judge in Minneapolis last November handed down the shortest terms to those who had pleaded guilty and cooperated, and the longest terms to those who had not.
Unlike members of terrorist groups who can use information on their associates as a bargaining chip, though, many aspiring foreign fighters caught through sting operations don’t have much to bargain with.
In agreeing to a shorter term for Khan, prosecutors cited his cooperation. But his attorney said Khan and his siblings didn’t have much to offer prosecutors beyond discussing “the people they met online, which the government was fully aware of.”
“It’s not like a drug dealer who somehow might know 50 other drug dealers,” Durkin said.
In cutting suspects some slack, he said, prosecutors and judges “want to be assured that they’re not going to be embarrassed.”
“They don’t want to be the guy that permits somebody to get out early and go blow up the subway,” Durkin said. “It’s a delicate balance.”
In agreeing to a sentence that ensured Khan would be free in time for college this fall, Judge John Tharp last November argued that a lengthier term would make Khan more dangerous and reminded Khan how the American criminal justice has treated him.
“The enemy government has not tried to kill you,” Tharp said. “It has tried to help you.”
As Khan prepares for college, Durkin wants him to use the freedom given by the criminal justice system to chart a new life.
“I’m trying to talk him into studying liberal arts, because I’m a big fan of liberal arts,” he said. “He wants something a little more practical, but let’s see who wins.”