What should the sentence be for Ahmed Ressam, the terrorist? (PART 2)

When I was addressing a United Nations crime conference on the subject of terrorism in Milan in 1985, I suggested that terrorists who kill people or who make plans to kill people should be executed. As far as I know, only one terrorist in a Westernized nation has been executed and that was the home grown terrorist who blew up the federal building in Oklahoma City. From what I have observed since 1985, some terrorists who are tried in the United States are generally sentenced to life in prison with no apparent hope of ever getting parole as an alternative to them being executed.

You may recall that in (PART 1) I told you about Ahmed Ressam who has been referred to as the Millennium Bomber because he planned to commit his acts of terrorism at the turn of the century (2000) by placing a bomb in the international airport in Los Angeles. (LAX) PART 1 dealt with his two trials held in Seattle. PART 2 deals with what the Ninth Court of Appeals decided on the matter of what this terrorist’s sentence should be.

Surprisingly, the Appeal Court in 2007 previously reversed the conviction on count nine but later, the Supreme Court of the United States in 2008 reversed the Appeal Court’s ruling so Ressam was still guilty of carrying an explosive during the commission of a felony. Now the Court of Appeal was going to deal with the appeal with respect to the sentence given to this terrorist by the trial judge.

The prosecutor’s appeal with respect to the sentencing of Ressam was later heard by the full court in San Francisco in September 2011.

The opinion written by Senior Circuit Judge Arthur L. Alarcon, appointed to the appeals court by President Carter was; “We conclude that the district court committed procedural error in failing to address specific, non-frivolous arguments raised by the government in imposing a sentence that is well below the advisory sentencing guidelines range.” Judge Richard R. Clifton, an appointee of President George W. Bush agreed with Alarcon. However Senior Judge Ferdinand F. Fernandez, appointed by the elder President Bush, dissented, saying that the “sentence was neither procedurally erroneous nor substantively unreasonable.”

Previously in its argument before the Court of Appeal, the government retracted its former position stated in the sentencing memorandum filed before the hearing, which recommended a sentence of 45 years. The government instead recommended that Ressam serve a term of life imprisonment, emphasizing the seriousness of the crimes, his further recantation and attempts to distance himself from his earlier cooperation, and the need to protect the public from further crimes. With regard to the seriousness of the crimes, the government in its earlier sentencing memorandum urged the district court to consider that “all of the crimes of which Ressam was charged and convicted were directed at achieving his goal of placing a bomb at LAX.

The government underscored the serious treatment given to crimes of terrorism under the Sentencing Guidelines. It quoted United States v. Meskini, which noted:

“Congress and the Sentencing Commission had a rational basis for concluding that an act of terrorism represents a particularly grave threat because of the dangerousness of the crime and the difficulty of deterring and rehabilitating the criminal, and thus that terrorists and their supporters should be incapacitated
for a longer period of time.” unquote

Along similar lines, the government also argued:

“Ressam’s arrest (crime) on December 14, 1999, was not the result of a sudden lapse of judgment. It was the culmination of years of planning and work, all aimed at causing as much harm to the United States as he could possibly inflict. Following his conviction in April 2001, Ressam claimed that after he observed the fairness with which the Court treated him throughout the trial, he had a change of heart and that he was firmly against terrorist operations in America and around the world.” unquote

Ressam’s change of heart was short-lived. Ressam had provided no indication that he had repudiated the goals of terrorists to inflict harm on the United States. Further, his decision to end his cooperation raised the specter that he continued to pose a real and serious threat to the United States. Ressam’s more recent decision to affirmatively help identified terrorists escape responsibility for their actions raised even more serious concerns. This man apparently moves in the manner in which the tide flows.

Judge Richard R. Clifton said in writing for the majority:

“At this point in time, this Court must address the most fundamental question: At what age will Ressam no longer pose a threat to the people of the United States?”

That is a very important question that any court must ask itself when dealing with very serious crimes.

Judge Clifton then went on to write in his decision:

“The government acknowledged that Ressam’s cooperation, while it lasted, had been useful, but only to a degree. It emphasized the termination of Ressam’s cooperation and observed that much of the value had been undermined or entirely lost as a result of his affirmative recantations subsequent to the 2005 sentencing hearings. It summarized the value of Ressam’s cooperation generally as providing testimony in the prosecutions of individuals charged before he began his cooperation (such as the testimony he provided during the trial of Mokhtar Haouari), providing information about explosive devices that was very helpful in determining the nature of the device found in Richard Reid’s shoe and providing information that corroborated the information already known by the United States and foreign governments. To be sure, the information about trade craft, terrorism organizations, and training camps that Ressam provided was in an unclassified form. Thus this information could be broadly disseminated to law enforcement officers both in the United States and abroad in order to broaden their base of knowledge. While this was of significant value, the information provided was not unique to Ressam. Perhaps his most valuable information—that leading to the charges against Doha and Mohamed—cannot be credited. Ressam undermined that value when he chose to end his cooperation leading to the dismissal of these charges. He has also undermined his other cooperation by recanting earlier statements.” unquote

The government pointed out to the Appeal Court that it had argued at Ressam’s second trial that his recantation of his prior statements regarding his terrorist training and the activities of other terrorists, and his decision to cease cooperating, forced the government to dismiss criminal charges against Doha and Mohamed. The government said that as a high ranking al-Qaeda member with close ties to Osama Bin Laden, Doha was one of the most dangerous terrorists ever charged by the United States. After the dismissal of the charges against him, Doha was released from custody and immediately left the United States. In (Part 1), I said what happened to him when he left the United States.

On the subject of Ressam’s cooperation, the government argued that when it was before Judge Coughenour, the government would not have entered into the cooperation agreement with Ressam if it had known what was going to happen. It argued that “any benefit he provided initially has been substantially outweighed by his reversal, and he now attempts to use his position as a cooperating defendant to help his fellow terrorists.”

Regarding the need to protect the public, the government argued that Ressam would still be relatively young upon release from prison if he were given a sentence similar to the one originally imposed by the district court in 2005. The Court’s July 2005 sentence, if reimposed, would mean that this defendant would be released in ten years and be out of jail in 2018 at which time, he would be only 53 years of age.

This is why Judge Clifton asked his rhetorical question about what age a terrorist is no longer acting as a terrorist. He then said about the sentence given to Ressam:

“Recognizing the deference owed to the district court, it is our conclusion that the sentence imposed by the district court in this case was substantively unreasonable. We reach that conclusion after examining the “totality of circumstances. To put the sentence imposed on Ressam in context, when we say that a sentence is “substantively unreasonable” is not to say that “no reasonable person” would have imposed such a sentence. We may generally assume that federal judges are ‘reasonable’ people in the commonsense definition of the term. Nonetheless, even reasonable individuals can make unreasonable decisions on occasion. The Supreme Court recognizes this and has charged the Courts of Appeals with reviewing the substance of sentences for reasonableness, and we cannot employ a definition of ‘substantive unreasonableness’ that would render the required review a dead letter.” unquote

He also said in his decision:

“A substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish sentencing goals. The touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in United States v. Tomko.

"In determining substantive reasonableness, we are to consider the totality of the circumstances, including the degree of variance for a sentence imposed outside the Guidelines range. The Guidelines range for the term of imprisonment for Ressam, as calculated by the district court and not challenged by either party, was 65 years to life imprisonment. The district court did not express any policy disagreements with the Guidelines and their treatment of Ressam’s crimes, as it could have.

“Ressam’s sentence of 22 years thus represented a major departure. We acknowledge that 22 years is not a trivial period of time, but that sentence still amounted to a reduction of 43 years, or two-thirds, from the low end of the Guidelines range. Moreover, 10 of Ressam’s 22 years represent a mandatory, consecutive sentence for violation of 18 U.S.C. § 844(h)(2). For his other crimes of conviction, the total applicable Guidelines range was 55 years to life, but he received only 12 more years—a downward departure of more than three-fourths as to the counts on which the sentencing judge had discretion. unquote

The first factor identified in section 3553(a) of the Sentencing Guidelines to be considered in sentencing is “the nature and circumstances of the offense.” unquote

The crimes that Ressam sought to commit were horrific. The most important reason for the court’s conclusion that the sentence imposed by the district court was substantively unreasonable is that the sentence did not properly account for those crimes. Had Ressam succeeded in his plot to blow up LAX, it would have resulted in many deaths and injuries, substantial property damage, and enormous disruption to the nation’s transportation system.

The district court acknowledged that Ressam’s crimes, if carried to their intended conclusion, would have resulted in the deaths and injuries of hundreds of innocent people and instilled fear across the country and even the world. Many common criminals have been sentenced to much longer terms for offenses with much less serious consequences.

What makes Ressam’s crimes even worse is that they were in furtherance of a terrorist attack which compounded the severity of his crimes. His clear intent was to intimidate the United States and the world, and he sought to influence world events and the conduct of the United States government through that intimidation.

The Sentencing Guidelines specifically provide for a substantial upward adjustment for federal crimes of terrorism. The sentence imposed by the district court effectively negated that adjustment.

The Guidelines provides that, in imposing a sentence, the district court should consider the need “to protect the public from further crimes.’ Concern for the threat that Ressam could pose to our nation is particularly powerful because under the district court’s sentence, he would be only 51 years old upon his release from prison. Most people are sufficiently active and capable at age 51 to do considerable
damage if they are so inclined and Ressam demonstrated strongly held beliefs and a willingness to attack American interests.

Judge Clifton wrote about his concerns if Ressam is released:

“If and when he is released, he could try again to blow up LAX or to launch some other attack. To be sure, his release would come only after many years of imprisonment, but Ressam would likely be capable of organizing another attack at that point. Ressam’s release at age 51 could therefore impose another danger that the district court did not fully take into proper account.

“We share the concern expressed by the Eleventh Circuit in its recent decision overturning the sentence of Jose Padilla. (another terrorist) Among the reasons cited by that court in holding the sentence of 17 years and 4 months to be substantively unreasonable was its conclusion that the sentence imposed failed to protect the public from further crimes. The court pointed out that although recidivism ordinarily decreases with age, we have rejected this reasoning as a basis for a sentencing departure for certain classes of criminals, namely sex offenders. We also reject this reasoning here. Terrorists, even those with no prior criminal behavior, are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation.” Padilla poses a heightened risk of future dangerousness due to his al-Qaeda training. He is far more sophisticated than an individual convicted of an ordinary street crime. In addition, even if Ressam were incapacitated by the time of his release, the attention to be generated by his release and likely return to Algeria could inspire others to try to complete
his mission or to embark on a different attack.” unquote

The judge had the bomber, Abdelbaset al-Megrahi in mind when he said in that last statement.

The release of the Lockerbie bomber from prison in Scotland because of ill health in 2009 and his subsequent return to Libya produced an uproar around the world because of precisely that fear. Although Megrahi may have been in no condition to launch a new attack himself, there was understandable concern that his presence in Libya could inspire others.

Under the sentence imposed by the district court, Ressam’s release date, currently projected by the Bureau of Prisons to be July 15, 2019, is not so many years away. His release at that time would pose a significant danger that the district court failed to take into account.

The only justifications for the district court’s substantial downward departure in sentencing Ressam were his cooperation and, more broadly, his history and personal characteristics, as expressed in the court’s explanation for the sentence. It was appropriate for the district court to consider those factors.

However, when imposing a sentence that is well below the Guidelines range because of the assistance provided by a defendant, there must be some indication that the extent of departure is justified. A defendant’s cooperation may be taken into account in calculating a Guidelines sentencing range, after granting a motion for a departure under the Guidelines. Alternatively, cooperation may be included as part of the consideration after a Guidelines sentencing range is calculated. In this case, the trial judge in Seattle didn’t do that.

There is no doubt that Ressam cooperated with the federal government and with governments of some other allied nations, for a period of time. But he did not begin to cooperate until after he was convicted by the jury and faced life in prison. The timing of Ressam’s cooperation suggests that it was prompted by his desire to make the best of a bad situation, not some altruistic motive, sincere regret, or deeper good nature.

Moreover, when Ressam stopped cooperating, this made it impossible for the government to proceed with certain prosecutions and led to the release of certain suspected terrorists.

At the time his sentence was originally imposed in 2005, there remained some hope that Ressam might live up to the cooperation agreement that he had signed. That hope was extinguished by the time of Ressam’s re-sentencing in 2008. He had, in the interim, affirmatively repudiated his agreement to cooperate, recanted his testimony, and done everything he could to diminish the assistance he had already provided.

And yet, the district court imposed exactly the same sentence in 2008 as it had in 2005, failing to account for the dramatic change in circumstances. The court stated in 2008 that Ressam’s cooperation, unique in its breadth and scope, weighed heavily in my initial sentencing decision and its import has not changed in my analysis today. Treated as a factual finding, the district court’s assessment of Ressam’s cooperation was clearly erroneous. The district court significantly overvalued the cooperation provided by Ressam during the time that he provided assistance. “The Guidelines afford the sentencing judge wide latitude in evaluating the ‘significance and usefulness of the defendant’s assistance,’ but it direct courts to give ‘substantial weight to the government’s evaluation’ of that assistance.” unquote

The district court failed to give “substantial weight” to the government’s actual evaluation of the extent of the defendant’s assistance. Instead, the court credited Ressam’s assessment of the value of his own cooperation, expressly relying on the
defendant’s sentencing memorandum submitted before the July 2005 sentencing hearing” as the basis for its assessment of the “far-reaching impact of Ressam’s cooperation on the investigations and prosecutions of terrorist activities in the U.S. and abroad.

That court’s consideration failed to take into account the effect of Ressam’s subsequent recantations. More broadly, Ressam and his counsel were in no position to evaluate the effects of and benefits from his cooperation. Notably, they could not know what the government already knew or would have been able to learn from other sources. That is why the Guidelines expressly require district courts to give substantial weight to the evaluation by the government. It is the government that is in the position to know the effects of defendants’ provided information, and that is especially true with information of the kind provided by Ressam. Much of the information Ressam provided was not unique to him, according to the government.

Moreover, as the government argued, Ressam’s “most valuable information—that leading to the charges against Doha and Mohamed—cannot be credited because Ressam undermined that value when he chose to end his cooperation leading to the dismissal of the charges he was facing.

Similarly, the district court significantly understated the impact of Ressam’s repudiation of the cooperation agreement and recantations of his prior statements.

The district court acknowledged that Mr. Ressam’s later decision to end his full and truthful cooperation resulted in the dismissal of two pending prosecutions and the retraction of certain of his statements against two other terrorist suspects.

Unfortunately the district court failed to take into proper account the effect of Ressam’s early cessation of cooperation or recantations and failed to adjust the sentence in response.

Ressam violated the agreement he had with the government since he chose to withhold his cooperation. He compounded the potential ill effects of his withdrawal by further affirmatively disavowing the information he had already provided. He then argued for a sentence substantially lower than the 27-year term which the 'cooperation agreement' provided would be the minimum that either side would recommend, thus breaching the agreement in two ways.

Despite that, the district court gave him a sentence that was well below the 27-year minimum that was promised on his full cooperation. The far more likely inference to be drawn from the court’s sentencing is that a defendant might be able to repudiate a cooperation agreement and recant previous testimony with no ill effects. Indeed, Ressam appeared to come out ahead.

The judge further wrote in his decision:

“It is hard to perceive what reason there is to provide any reward to a defendant who terminates his cooperation in breach of the agreement into which he entered and who affirmatively acts, as Ressam did, to undermine the value of statements that he had already provided. Rewarding such conduct sends precisely the wrong message to other offenders. We also find unreasonable and clearly erroneous the district court’s finding that “Mr. Ressam’s life history and personal characteristics support favorable sentencing consideration,” in view of the substantial evidence, including the information contained in the Presentence Report, that Ressam had for many years violated the laws of many nations and led a life dedicated to terrorist causes.

“The district court credited Dr. Grassian’s favorable report and Ressam’s own characterization (of himself)in his 2005 sentencing memorandum that “by naming and
identifying scores of former associates, Mr. Ressam not only has imperiled his life, but also has decisively walked away from the illegality that led to his arrest.” But Ressam’s subsequent recantations squarely undermined that assessment.

"In finding that Ressam was “a quiet, solitary and devout man whose true character is manifest in his decision to cooperate,” the district court simply did not come to grips with the many facts demonstrating the contrary. Even leaving aside his plan to blow up LAX, it cannot be overlooked that Ressam spent nearly a year attending three training camps for Islamic terrorists in Afghanistan, conspired with other would-be terrorists, used forged documents and false identities on multiple occasions had been deported from France as early as 1993, violated the immigration laws of the United States, France, and Canada, and planned to rob a bank to obtain funds to carry out his mission. In the course of robbing the bank, Ressam intended to throw a live hand grenade and run if necessary to get away.” unquote

These facts and others directly refute the district court’s finding that Ressam is ‘a quiet, solitary and devout man whose true character is manifest in his decision
to cooperate.’

Indeed, based on this record, if there was a period of aberrant behavior in Ressam’s adult life, it was during the relatively brief time following his conviction when Ressam provided assistance to the government. His conduct before and after that limited period contradicts the district court’s assessment of his character.

The judge then said:

“Even if, in the end, it might be determined that Ressam should be given some credit for his cooperation and personal characteristics, that credit is not nearly strong enough to justify the substantial downward departure provided in the district court’s 22-year sentence. Because we are left with a definite and firm conviction that the district court committed a clear error of judgment in sentencing Ressam as it did, including by basing that sentence on several findings that were clearly erroneous, the sentence is vacated as(having been)substantively unreasonable, and the case is remanded to the district court for re-sentencing.” unquote

In March 2012, the court vacated the sentence even without discussing the merits of the government’s argument because the Appeal Court felt that the sentence was unreasonable in the first place since the district court judge had not made his determination based on the applicable Sentencing Guidelines. The 9th Circuit panel referred to Judge Coughenour's failure to adequately explain why he deviated from federal sentencing guidelines and his disregard of prosecutors' concerns about potential security consequences if Ressam was released after 22 years at age 53.

The Appeal Court sent the case back to the lower court in Seattle for re-sentencing with a proviso that the sentencing judge is to be someone other than Judge Coughenour.

When I am able to get the decision of the lower court, I will write it in Part 3 and put it in my blog.

Ressam is currently confined at the Administrative Maximum Facility in Florence, Colorado,(ADX) where a number of terrorist offenders are held. He is serving his 22-year sentence in that facility and will serve any additional time given to him after he is re-sentenced.

In my next article that follows this one, I will give you a description of the Administrative Maximum Facility in Florence, Colorado and tell you about some of the prisoners serving their sentences in that facility.