Arizona AG's lead in Tucson terror case could set new prosecution standard
An FBI agent's testimony Tuesday offered a window into an elaborate investigation into a terrorist suspect involving undercover agents, a burner phone and months of communications as the Tucson teenager reportedly mapped his Arizona attacks.
The case against Mahin Khan also offers a window into how more terrorism-related cases may be heard in Arizona’s state courts, rather than in federal court, as the result of what Arizona Attorney General Mark Brnovich calls a more “forward-leaning” approach to detain would-be terrorists before they’re able to act.
FBI Agent Benjamin Trentlage testified Tuesday in a Maricopa County Superior Court bond hearing for Mahin Khan, the 18-year-old accused of planning jihad-style attacks in Maricopa and Pima counties. Trentlage said Khan was under 24/7 surveillance before his July 1 arrest, costing the federal and local authorities hundreds of thousands of dollars in work-hours in a matter of months.
Tucson terror suspect Mahin Khan pleads not guilty
Khan was denied bond at a July 1 hearing but was entitled to another hearing before a judge to determine whether there were grounds to warrant the denial.
Khan’s is believed to be the first terrorism-related case in Arizona tried in state, rather than federal, court. He is charged with inciting or inducing terrorism, financing or managing terrorism and with manufacturing, possessing or selling a prohibited weapon.
Brnovich: Don't need to wait for an 'overt act'
Unlike federal laws, Arizona statutes do not require an “overt act” to prove terrorism conspiracy, Brnovich said.
While federal prosecutors would have to provide evidence that a suspect, for example, purchased a weapon or explosive, Arizona law only requires evidence of intent, such as an agreement between the suspect and another person.
“If you look at what’s happened … in San Bernardino and then in Orlando (attacks), I think that everyone recognizes that no one can do this alone,” Brnovich said, speaking about terrorism cases in general. “Especially in light of the fact that we see these lone-wolf or small terror cells operating in other parts of the world — this is a problem where you’re going to need state, local and federal officials working together.”
Authorities are required to be proactive in terrorism cases, which is not generally the case in other types of crime, Brnovich said.
“We have to be right 100 percent of the time,” he said. “If you mean harm to this community and you’re a terrorist, you only have to be successful 1 in 1,000 times.”
The federal government has come under fire for failing to prevent some of the bloodiest attacks on American soil.
Weeks before Khan’s arrest, Omar Mateen, a 29-year-old security guard, carried out the deadliest mass shooting in U.S. history, killing 49 people at an Orlando nightclub and injuring 53 others.
Mateen’s name once had been on the FBI’s terrorism watch list but was removed after an investigation ended without charges. The removal meant that Mateen was able to legally purchase guns without the FBI being notified.
Since the Sept. 11, 2001, terror attacks, the FBI and Department of Justice shifted their anti-terrorism strategy from one of response to interdiction, said Brian Levin, director for the Center for the Study of Hate & Extremism at California State University in San Bernardino.
Levin said authorities across the country have employed tactics such as alleged immigration violations, conspiracy charges or charges of lying to an agent to pre-emptively eliminate threats.
He noted a case out of California, in which an Egyptian flight student was flagged after posting a statement on social media about assassinating Donald Trump.
“They didn’t even have to charge him; he was just deported back to Egypt,” Levin said.
Levin said it’s possible more terrorism cases will be tried in state courts, but it will depend on the wording of each state’s individual statute.
“In this particular instance, it appears that the state law is a much better fit for prosecution than federal law,” he said.
FBI: Teen planned a 'lone jihad attack'
Over the span of months, Trentlage said Khan unknowingly communicated with FBI agents on a burner phone and detailed what he envisioned to be a “lone jihad attack.” Khan was eyeing a Jewish community center and an Air Force recruitment center in Tucson as targets, as well as a state Motor Vehicle Division office in Mesa, Trentlage said.
"He described the MVD as a 'soft target,' " Trentlage said. “He said it would have a lot of people and relatively low security."
During one of his communications with agents, Trentlage said, Khan praised the Paris terrorist attacks in November and said he hoped to kill 200 to 300 people. He at one point requested firearms, and instructed an undercover agent to start making homemade grenades, Trentlage said.
Trentlage said the undercover agent at one point expressed concern to Khan that Khan’s parents would report him to the FBI.
Khan told the agent, " 'If they did that, he would kill them himself,' ” Trentlage relayed.
Defense attorneys did not have a chance to cross-examine Trentlage on Tuesday. The hearing was scheduled to continue Wednesday.
Earlier Tuesday, defense attorneys argued that Khan was denied his constitutional rights by appearing without an attorney during his initial court appearance.
Khan was ordered to be held without bond earlier this month, after reportedly telling authorities that he would flee to Syria or Pakistan if released.
Maricopa County Superior Court Judge Sam Myers said he would consider the arguments about whether Khan could be denied bond and issue a written order at a later time.
Court documents released earlier this month said Khan discussed potential targets in various email and phone conversations, and said that he had reached out to a member of TTP, or Tehrik-e Taliban Pakistan, a known foreign terrorist organization, asking how to build a pressure-cooker bomb.