The Arrest of a Would-Be Bomber in Texas and the Limited Anticipatory Scope of Criminal Law in Lone Wolf Cases

* United States v. Aldawsari (N.D. Tex. Feb. 24, 2011) Authorities have arrested a Saudi national near Lubbock, Texas, charging him with plotting to carry about bombings with IEDs.   The complaint underlying the arrest is here.  This could be an important case from a legal perspective, in the sense that it may turn on the anticipatory scope of attempt liability - an issue that just doesn't matter when it is possible to charge conspiracy, but which becomes central in the case of a lone wolf.  Absent a conspiracy, the prosecutors are instead relying on attempt as the inchoate charge (under 18 USC 2332a, the WMD statute; recall that “WMD” is defined very loosely to encompass more or less all bombs). The interesting question is whether the facts alleged below suffice to trigger “attempt” liability.  It does not sound as if he had yet assembled a bomb, which would have made for a much easier case.  On the other hand, the many substantial steps that he had actually taken, if one credits the allegations below, leave no room for doubt as to what was going on.  In any event, we can expect some interesting and important debate about the anticipatory scope of the attempt concept. If this proves problematic, and if this turns out to be a truly solo operation, it will serve to highlight a critical point about inchoate criminal law: criminal liability attaches far earlier in the planning process for groups than for individuals. Note too that this was not a "sting" case that might raise objections on entrapment grounds, at least according to these allegations.  It is very much the real deal lone wolf scenario, or so it seems, and we were deeply fortunate that it was discovered in advance.  In any event, here is the press release:  Khalid Ali-M Aldawsari, 20, a citizen of Saudi Arabia and resident of Lubbock, Texas, was arrested late yesterday by FBI agents in Texas on a federal charge of attempted use of a weapon of mass destruction in connection with his alleged purchase of chemicals and equipment necessary to make an improvised explosive device (IED) and his research of potential U.S. targets.  …  Aldawsari is expected to make his initial appearance in federal court in Lubbock at 9:00 a.m. on Friday morning.  Aldawsari, who was lawfully admitted into the United States in 2008 on a student visa and is enrolled at South Plains College near Lubbock, faces a maximum sentence of life in prison and a $250,000 fine if convicted of attempted use of a weapon of mass destruction.  According to the affidavit filed in support of the complaint, Aldawsari has been researching online how to construct an IED using several chemicals as ingredients.  He has also acquired or taken a substantial step toward acquiring most of the ingredients and equipment necessary to construct an IED and he has conducted online research of several potential U.S. targets, the affidavit alleges.  In addition, he has allegedly described his desire for violent jihad and martyrdom in blog postings and a personal journal.  …  Purchases of Chemical Ingredients and Other Equipment The affidavit alleges that on Feb. 1, 2011, a chemical supplier reported to the FBI a suspicious attempted purchase of concentrated phenol by a man identifying himself as Khalid Aldawsari.  According to the affidavit, phenol is a toxic chemical with legitimate uses, but can also be used to make the explosive trinitrophenol, also known as T.N.P., or picric acid.  The affidavit alleges that other ingredients typically used with phenol to make picric acid, or T.N.P., are concentrated sulfuric and nitric acids.   Aldawsari allegedly attempted to have the phenol order shipped to a freight company so it could be held for him there, but the freight company returned the order to the supplier and called the police.  Later, Aldawsari falsely told the supplier he was associated with a university and wanted the phenol for “off-campus, personal research.”  Frustrated by questions being asked over his phenol order, Aldawsari cancelled his order and later e-mailed himself instructions for producing phenol.  The affidavit alleges that in December 2010, he successfully purchased concentrated nitric and sulfuric acids.  According to the affidavit, legally authorized electronic surveillance revealed that Aldawsari used various e-mail accounts in researching explosives and targets, and often sent emails to himself as part of this process.  On Feb. 11, 2011, for instance, he allegedly e-mailed himself a recipe for picric acid, which the e-mail describes as a “military explosive.”  He also allegedly sent himself an e-mail on Oct. 19, 2010 that contained information on the material required for Nitro Urea, how to prepare it, and the advantages of using it.   The affidavit alleges that Aldawsari also e-mailed himself instructions on how to convert a cellular phone into a remote detonator and how to prepare a booby-trapped vehicle using items available in every home.  One e-mail allegedly contained a message stating that “one operation in the land of the infidels is equal to ten operations against occupying forces in the land of the Muslims.” During December 2010 and January 2011, Aldawsari allegedly purchased many other items, including a gas mask, a Hazmat suit, a soldering iron kit, glass beakers and flasks, wiring, a stun gun, clocks and a battery tester.  Searches of Aldawsari’s Residence  Two legally authorized searches of Aldawsari’s apartment conducted by the FBI in February 2011 indicated that the concentrated sulfuric and nitric acids; the beakers and flasks; wiring; Hazmat suit; and clocks were present in Aldawsari’s residence.   FBI agents also found a notebook at Aldawsari’s residence that appeared to be a diary or journal.  According to the affidavit, excerpts from the journal indicate that Aldawsari had been planning to commit a terrorist attack in the United States for years.  One entry describes how Aldawsari sought and obtained a particular scholarship because it allowed him to come directly to the United State and helped him financially, which he said “will help tremendously in providing me with the support I need for Jihad.”  The entry continues: “And now, after mastering the English language, learning how to build explosives and continuous planning to target the infidel Americans, it is time for Jihad.”   In another entry, Aldawsari allegedly wrote that he was near to reaching his goal and near to getting weapons to use against infidels and their helpers.  He also listed a “synopsis of important steps” that included obtaining a forged U.S. birth certificate; renting a car; using different driver’s licenses for each car rented; putting bombs in cars and taking them to different places during rush hour; and leaving the city for a safe place. Research on Potential Targets  According to the affidavit, Aldawsari conducted research on various targets and e-mailed himself information on these locations and people.   One of the documents he sent himself, with the subject line listed as “Targets,” allegedly contained the names and home addresses of three American citizens who had previously served in the U.S. military and had been stationed for a time at Abu Ghraib prison in Iraq.  In another e-mail titled “NICE TARGETS 01,” Aldawsari allegedly sent himself the names of 12 reservoir dams in Colorado and California.  In another e-mail to himself, titled “NICE TARGETS,” he listed two categories of targets: hydroelectric dams and nuclear power plants.  On Feb. 6, 2011, the affidavit alleges, Aldawsari sent himself an e-mail titled “Tyrant’s House,” in which he listed the Dallas address for former President George W. Bush.  The affidavit also alleges that Aldawsari conducted research that could indicate his consideration of the use of infant dolls to conceal explosives and possible targeting of a nightclub with an explosive concealed in a backpack.  The affidavit also alleges that Aldawsari created a blog in which he posted extremist messages.  In one posting, he expressed dissatisfaction with current conditions of Muslims and vowed jihad and martyrdom. “You who created mankind….grant me martyrdom for Your sake and make jihad easy for me only in Your path,” he wrote.