Shopping While Arab: A Michigan Terrorist Case Collapses

Less than 24 hours after British authorities announced that they’d made arrests in a suspected plot to smuggle explosive liquids onto airplanes, three Palestinian-Americans were arrested in Michigan outside a Wal-Mart at 2am. The county prosecutor filed state terrorism charges against the three men, alleging that they were jihadis who planned to blow up Michigan’s Mackinac Bridge.

The tip that led to the arrest came from a Wal-Mart employee who thought it suspicious that the three Arab-Americans, two brothers and a cousin, purchased nearly 80 cheap prepaid cell phones. Local law enforcement had been warned that cell phones could be used as detonators, so when they found roughly 1,000 cell phones in the suspects’ van, they felt they had probable cause to make the arrest.

But how did the police link these Wal-Mart shoppers to a plot to blow up the Mackinac Bridge? It seems these accusations were based on 20 photographs that the suspects had taken.

And that’s where the case began to fall apart. Nabih Ayad, the attorney for the three men, claimed that the photos were taken while the three men were stuck in traffic on the bridge. Visitors from Texas, it appears the three men were snapping the kind of shots that any tourist might.

FBI analysis showed the photographs were mostly of “ducks and lakes and trees and ponds and things of this nature.” And on August 14th, the FBI and the Michigan State police jointly announced that there was no nexus between the suspects and terrorism, and that their investigation concluded there was no threat to the Mackinac Bridge. Federal officials declined to prosecute the case.

But what of all those cell phones?

It seems that the three men are businessmen engaged in a common entrepreneurial enterprise-prepaid cell phone reprogram and resale. Most prepaid cell phone companies sell their phones at a loss, knowing that they’ll make up the difference when a customer activates the phone using their service. And since the phones are programmed to work only with their phone service, they make a killing.

Prepaid cell phone resellers buy these cheap cell phones in bulk, then reprogram them to work with any phone service, and resell them for a profit. Phone companies don’t like being cheated out of their profits, and so they ask retail outlets not to let customers purchase them in bulk. Thus, it’s become common practice for cell phone resellers to buy phones in different stores, later at night when clerks are less likely to notice or care.

The state terrorism case was dropped, the Coast Guard stopped monitoring the Mackinac Bridge, and the attorney for the three men expected them to be released. But that didn’t happen.

The three men were suddenly, and unexpectedly charged with “trafficking in cell phones.” This is a novel, and apparently never-before-tried crime. The novelty of the charge is even more astonishing in light of a similar case only days earlier where the federal government declined to prosecute for simply bulk buying of cell phones.

It may be that the federal government learned something to change their minds about the innocence of these Palestinian-Americans, and they made up a bogus charge so that they could hold the men. Or it may be a face-saving move, since Attorney General Alberto Gonzales was taking much heat from the Arab American Community for the handling of the case.

Whichever it is, the blatant shifting of legal rationales cannot soothe civil libertarians. Perhaps there are some activities which, when conducted by Caucasian citizens, do not raise alarm bells. Perhaps race and ethnicity can legitimately be a factor in whether or not conduct gives rise to probable cause.

But if so, perhaps the Federal Government might be better served to openly adopt a position of racial profiling, instead of making up new charges, and mucking with telecom law.

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