Omar Mateen’s shooting rampage at the Pulse nightclub in Orlando, Florida on September 14, 2016 left 49 people dead and another 53 seriously injured. The New York Times called the mass shooting “the worst terrorist attack on American soil since Sept. 11, 2001.”
The ensuing federal investigation led U.S. prosecutors to believe that Mateen’s wife, Noor Salman, was an integral component in the planning of the horrendous attack. In effect, the government believed that the Mateens were involved in a conspiracy to commit an act of “domestic terrorism” which is defined in 18 U.S.C. § 2331(5):
“… the term ‘domestic terrorism’ means activities that:
- involve acts dangerous to human life that are a violation of the criminal laws of the United States or any State;
- appear to be intended—(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion or (iii) to affect the conduct of government by mass destruction, assassination, kidnapping; and
- occur primarily within the territorial jurisdiction of the United States.
The U.S. Attorney General Guidelines for Domestic FBI Operations in place in September 2016 authorized the FBI to conduct what is known as “enterprise investigations” to determine if there was a “factual basis” that the Mateens had committed an act of “domestic terrorism.” That Omar Mateen acted with a specific terrorist intent was established early in the investigation, but despite all its efforts, the FBI simply could never establish a “factual basis” that Noor Salman had been radicalized with terrorist objectives. While the government may have firmly believed that Ms. Salman had been an “accomplice” in the Pulse mass shooting, they simply did not have the evidence to indict her as a coconspirator in the crime, the actual Pulse nightclub attack.
Indicted on Aiding and Abetting Terrorist Act
Instead the government indicted Ms. Salman on charges of aiding and abetting a terrorist act by providing her husband with “material support” and with obstruction of justice. The indictment was based on the government’s belief that Ms. Salman was with her husband when he cased two possible sites for attack—the Pulse nightclub and Walt Disney World—and she was with him when he purchased ammunition at a Walmart store. The indictment itself does not specify what specific acts supported the government’s belief that Ms. Salman had provided material support to her husband’s terrorist objectives.
The public’s overwhelming aversion to mass shooting attacks and its inherent fear of any form of terrorism gives the government a distinct advantage in the prosecution of such cases. Last year the Center for National Security at Fordham University School of Law found that between March 2014 and August 2017, the government secured convictions in 92.5 percent of the Islamic-state related cases it prosecuted.
Government Handed Rare Defeat in Terrorism Case
On March 30, 2018, an Orlando jury handed the government a rare defeat in a terrorism prosecution with the acquittal of Ms. Salman on the two charges the government brought against her. The reaction to the Salman verdict was swift, especially from the victims’ families who said they felt betrayed by the system. In response to this backlash, the foreperson of the jury issued a statement to the Orlando Sentinel just hours after the verdict was rendered explaining the verdict:
“… I want to make several things very clear. A verdict of not guilty did NOT mean that we thought Noor Salman was unaware of what Omar Mateen was planning to do. On the contrary we were convinced she did know. She may not have known what day, or what location, but she knew. However, we were not tasked with deciding if she was aware of a potential attack. The charges were aiding and abetting and obstruction of justice. I felt that both the prosecution and the defense did an excellent job presenting their case. I wish that the FBI had recorded their interviews with Ms. Salman as there were several significant inconsistencies with the written summaries of her statements. The bottom line is that, based on the letter of the law, and the detailed instructions provided by the court, we were presented with no option but to return a verdict of not guilty.”
Government Should Never Lose?
William H. Nettles, a former U.S. Attorney in South Carolina, provided this reaction to the New York Times about the verdict:
“The federal government should never lose a case. Prosecutors should never lose. They pick the fight, they pick the day the fight happens, they’ve got the best investigative capabilities in the world. It should always be an embarrassment for the government to lose.”
So why did the government lose the Salman case?
Orlando is in the federal Middle District of Florida. Maria Chapa Lopez is the district’s U.S. Attorney. She worked in the U.S. Attorney’s Office there for 16 years between 2000 and 2016. During that time, she primarily prosecuted drug trafficking organizations, money laundering, and domestic narcotics cases. She was not a terrorism prosecutor. She left the U.S. Attorney’s Office in April 2016 to become the Department of Justice’s Deputy Attaché at the U.S. Embassy in Mexico City.
Lopez was selected by the Trump administration in January 2018 to head the U.S. Attorney’s Office in the Middle District. The Noor Salman indictment was issued a year earlier on January 12, 2017. It was signed by three Assistant U.S. Attorneys: Sara C. Sweeney, James D. Mandolfo, and Roger B. Handberg. These three prosecutors coordinated the Salman investigation that led to her indictment. They worked under the direction and supervision of former U.S. Attorney for the Middle District, A Lee Bentley III, who was summarily dismissed from his position in March 2017 by President Trump—just two months after the Salman indictment.
Lopez’ appointment took effect on January 5, 2018, giving her just two months to become refamiliarize herself with the office and become familiar with the complex facts of the Noor Salman case.
The question of whether the disruptive removal of Bentley from the Middle District office, as part of Trump’s nationwide firing of virtually every U.S. Attorney in the country in March 2017, had an adverse impact on the prosecutorial investigation and preparation for the Salman trial is uncertain.
Discovery that Pulse Shooters Father was FBI Informant
What is certain is the fact that the Salman trial was thrown into disarray midway when Salman’s defense attorneys learned that Mateen’s father, Seddique Mateen, was an FBI informant between 2005 and 2016. This was discoverable material that should have been disclosed during a proper prosecutorial preparation for trial. Although the trial judge denied the defense request for a mistrial, the issue created a significant question for an appeal had there been a conviction.
The Salman defense team did an excellent job. After significant discrepancies were uncovered about statements made by Salman’s to FBI agents, the defense could argue the statements were coerced, or worse, fabricated. The defense also painted Salmon as a simple, almost child-like woman who was manipulated, controlled and deceived by her husband.
Experienced Defense Lawyer Led Fight
Lead defense attorney, Charles Swift, is the director of the Constitutional Law Center for Muslims in America. The National Law Review has recognized him as one of the best legal minds in the country. Adrienne Cutway, Web Editor, Click Orlando.com, had this to say about Swift:
“[He] is most known for his work on behalf of Guantanamo Bay detainee and Yemeni citizen Salim Admed Hamdan, who was charged with conspiracy to commit terrorism because he worked as a driver for Osama bin Laden. Swift was supposed to enter a guilty plea for Hamdan before a military commission but he decided that would be unethical and argued that the tribunal system was flawed.
“Swift took the case to the U.S. Supreme Court and justices agreed that current system was a violation of the Geneva Convention as well as the United States Uniform Code of Military Justice. Because of the Supreme Court’s request, Congress passed the Military Commissions Act of 2006, which gave war criminals the right to habeas corpus so they could legally challenge the charges against them.
“About two weeks after that legal victory in Hamdan v. Rumsfeld, Swift learned that he did not receive a promotion within the Navy and would be forced into retirement. Some speculated that there were political reasons for not promoting Swift since he successfully challenged the constitutionality of Guantanamo Baby legal proceedings.”
After several years of teaching constitutional law, Swift joined the Constitutional Law Center in 2014. That background should have been enough for the three federal prosecutors to be at the top of in their game. They were not.
This is a textbook example of great lawyering on the part of a skilled defense team. They obviously impressed on the jury the importance of their duty as fact finders and overcame the obvious bias that often haunts these types of cases. The jury should also be commended. They heard all the evidence and followed the court’s instructions. At the end of the day, they had reasonable doubts as to the charges filed and they took the only course allowed by law, they acquitted.
FBI Needs to Record Interviews
The Salman case does raise questions about the FBI’s policy of not recording interviews with suspects. While many state and local law enforcement agencies have adopted modern technology, and require recordings of interviews with suspects and witnesses, the FBI only records interviews of individuals under arrest. Swift, who attacked the statements attributed to his client as coerced, has urged the FBI to change its policy. “The FBI must join the rest of law enforcement … and record all statements. It is ridiculous they don’t,” Swift told reporters after the not guilty verdict.