Lenient Prison Term for ISIS Terrorist Pits Prosecutors Against Federal Judge

On September 10, just ahead of this year’s 9/11 anniversary, Texas resident Asher Abid Khan finally turned himself in to the U.S. Marshals office in Houston for providing material support to ISIS. He was off to the federal correctional institute known as “Forrest City Medium” in Forrest City, Arkansas, according to court filings.

The 23-year-old University of Houston student had been facing a potential life term in prison when he pleaded guilty to one count related to recruiting fighters for ISIS, including one fellow Texan who died in combat. Instead, he must have felt some relief when, last month, the Ronald Reagan-appointed U.S. District Judge Lynn Hughes gave Khan 18 months.

But Khan can’t be making any long-term plans for his post-prison future.

In a highly unusual turn of events, prosecutors with the U.S. Department of Justice, angry about the perceived leniency of the sentence, have taken the judge’s decision to the 5th U.S. Circuit Court of Appeals. This just doesn’t happen. A Houston Chronicle report established that DOJ’s appeal of Judge Hughes’ sentence was a first involving ISIS cases. (More on the eccentric Judge Hughes in a bit).

The outcome of the coming bout will have consequences for the government’s ability to punish and deter future homegrown terrorists like Khan. America’s current and future Islamic extremists, while trying as hard as they can to die for The Cause, might view an 18-month prison stint more as delayed gratification than as wait-just-a-minute deterrent.

Here’s what the fight’s about in a quick nutshell: In the aftermath of 9/11, U.S. prosecutors were given tough new anti-terrorism laws and sentences as primary tools in the nation’s counter-terrorism strategy to punish and deter. The idea was to throw a bigger book at not only terrorist acts that directly cause death and destruction but also at soft “material support” activities that enable the violence. The USA Patriot Act, one of the new laws, increased the maximum terms of imprisonment for material support for two of the more common kinds of material support, which you can read more about here. One provision at issue here, 2339B of 18 U.S.C., takes into account supportive activity that results in death and allows prison sentences of up to 20 years or life in prison.

That’s the charge to which Khan pleaded guilty and for which Judge Hughes dished out an 18-month sentence.

For context, one analysis by the George Washington University Extremism Tracker project reported the average sentence for terrorism charges related to ISIS from 2014 to 2017 was 13.2 years.

The FBI and federal prosecutors can be forgiven for their frustration with the outcome. They fought long and hard to put Khan away, starting nearly half a decade ago with a terrorism investigation that soundly proved Khan planned to die as a martyr with ISIS in Syria and recruited a fellow Texan who actually did. It was good gumshoe work. According to court records, back in 2014 Khan was living temporarily with an uncle in Australia and reportedly joined Hizb ut-Tahrir, a U.S.-designated terror group. It wasn’t long before FBI investigators picked up Khan’s Facebook postings lavishing praise on ISIS and declaring his plan to join the group in Iraq and Syria and “die a shahid.” But Houston FBI also saw that Khan had successfully recruited a high school friend and co-religionist at their Houston mosque. The friend was later identified as Sixto Ramiro Garcia. The two forged a plan to meet in Turkey to join ISIS through a real ISIS recruiter based in Turkey with whom Khan was communicating and who remains an indicted (at-large) co-conspirator in the case.

In February 2014, Khan and Garcia got on planes to meet each other and the recruiter in Turkey, Khan from Australia and Garcia from Houston. But a clever family ruse -- that Khan’s mother was dying in a hospital -- fooled Khan into returning to Texas, whereupon he gave Garcia money and arranged for him to go on to meet the ISIS recruiter. After Khan returned to Texas in February 2014 until his arrest about a year later, he continued actively recruiting for ISIS and communicating with both Garcia and the ISIS recruiter while distributing radical Islamist propaganda. Garcia died in combat eight months later, in December 2014.

Following lengthy proceedings in Judge Hughes’s court, prosecutors agreed to drop all but the 2339B charge against Khan as part of a plea bargain.

At the sentencing hearing last year, Khan’s defense attorney asked for leniency on grounds that his client had dedicated himself after his March 2015 arrest (and later release on $150,000 bond) to work, school, family, and apparently steering young people from a similar path.

“The man that stands here is a very, very, very different man than the stupid, naïve man who believed this was a good thing to do,” defense attorney David Adler was quoted as saying.

U.S. Attorney Almadar Shabbir Hamdani countered that Khan had not changed and noted that even after the abortive attempt to join ISIS in Turkey, he continued recruiting Texas soldiers for ISIS.

Now the table is set for a fight with some stakes in the outcome for everyone who cares about the domestic war on terror. A recent check of appellate court filings turned up nothing illuminating yet about what Judge Hughes or DOJ will argue.

President Ronald Reagan gave Hughes a lifetime appointment to the bench in 1985. In recent years, though, the judge has managed to fill pages of the legal site Above the Law, particularly a regular feature known as “Benchslap,” which has giddily logged a series of controversies and disputes with federal terrorism prosecutors. He has shown a deep disdain for Washington, D.C.-based DOJ terrorism prosecutors. Some of his behaviors and sentiments have struck observers as odd ranging to bizarre, and the 5th Circuit has rebuked and overturned him before. Judge Hughes has not done well in anonymous lawyer reviews. In The Robing Room, for instance, lawyers have described Judge Hughes in colorful terms, such as “the worst judge I have ever appeared before,” “He is a disgrace,” and “the meanest and most unfair judge I have ever met ... very unprofessional and rude.”

None of that, however, provides any clues as to why Judge Hughes handed down his 18-month sentence to Khan. He’s presided over other federal terrorism cases and showed no similar sentencing tendency. For example, he sentenced Houston-based Iraqi refugee Omar Faraj Saeed Al Hardan to 16 years in prison for lying about fighting with the Al Nusra Front terrorist group and planning to do so again.

To be continued.

Follow Todd Bensman on Twitter: @BensmanTodd