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Magistrate refuses bail for accused ISIS recruiter

Arafat M. Nagi’s family offered to put up their Lackawanna house as bail and keep him there so he could be released from custody, but a federal magistrate said that wasn’t good enough.

Judge Hugh B. Scott felt Nagi is too much of a danger to the community to be released. And, given his previous travels to Turkey, Nagi might flee the region rather than show up at future court appearances, the judge said of the accused ISIS supporter and recruiter.

“There is an untreated mental health condition and I think there is considerable weight to be given to ties to a foreign ... organization for risk of nonappearance,” Scott said Friday in court. “As to danger, I have to consider the nature of the dangers to the community. There have been prior orders of protection and prior violent felony offenses. I think there is credibility to what’s been suggested here, particularly to the daughter being told she needed to be beheaded. And there’s recent purchases of tactical combat gear.”

All this information that Assistant U.S. Attorney Timothy C. Lynch provided Friday at a detention hearing, Scott said, amounted to a “preponderance of proof” to grant the government’s request that Nagi remain locked up while FBI investigators continue to build a case against him.

Nagi appeared at the hearing wearing a blue “Niagara County Jail” jumpsuit with a waist-chain shackle and handcuffs. He was arrested Wednesday on felony charges that he attempted to provide material support to the terrorist group ISIS, based in Syria, and allegedly attempted to recruit on behalf of the group. If convicted, he could face more than 10 years in federal prison.

Following the hearing, U.S. Attorney William J. Hochul Jr. and FBI Special Agent Steven L. Lanser said Nagi had reached the tipping point and become radicalized, intending to leave this month for Turkey in order to make his way into nearby Syria and serve as an ISIS soldier.

Text message exchanges with relatives, Lynch said, demonstrated how serious Nagi was about joining ISIS.

“I am talking with them for the first time,” Nagi allegedly stated in an apparent reference to ISIS during his 2014 trip to Turkey. He also made repeated pledges of allegiance to ISIS and its leader through his Twitter account, further demonstrating his intentions to fight for the terrorist group, Lynch said.

Lynch said 10 electronic devices, mostly cellphones and a tablet, that were seized Wednesday have allowed FBI agents to identify additional social media sites on which Nagi had accounts.

‘History of violence’

“We know he has a history of violence. We know he threatened to behead his daughter and we know he is a danger not only in Lackawanna but worldwide,” Lynch told Scott in summing up arguments against granting Nagi bail. “He abuses drugs and is addicted to sleep medication. When you look at all those factors, there is no greater threat to this community than Mr. Nagi.”

Five combat-style knives and a sword also were taken during a Wednesday search of Nagi’s mother’s residence on Olcott Street, where he was living. FBI agents also seized an empty case for an assault rifle; Nagi had previously transferred ownership of the gun to one of his brothers. But, Lynch said, the gun was found at yet another brother’s home.

Lynch said the sword was discovered in a plastic trash bag hidden inside a garbage can in an unattached garage, while the other items were either found in Nagi’s bedroom or in other locations in the Cape Cod-style home. These types of weapons, Lynch told the judge, were consistent with those used by ISIS members to behead their enemies.

The prosecutors said that over the last few years, Nagi had gotten rid of several other firearms in preparation for permanently leaving the country. At different times, he said, Nagi also purchased military combat gear.

Among the items was a pair of night vision goggles, he said, that were taken from Nagi when he entered Yemen from Turkey last year. Nagi has family in Yemen and also owns property in that country, Lynch said.

Defended by brother

Present for the hearing were two of Nagi’s younger brothers, who, like Nagi, sat quietly listening to the evidence. Later, outside the downtown courthouse, one of them told The Buffalo News his older brother was neither a terrorist nor mentally ill.

“They are trying to manufacture a case out of nothing. If he was a terrorist, he wouldn’t have come back from Turkey in 2014,” the brother said, speaking on the condition that his name be withheld. “If he was a loose cannon, something would have happened a long time ago.”

But what of Nagi’s support of violent acts by ISIS and his allegiance to the group?

“He talks a lot of smack, he’s talking BS and, yes, he does take pills because he doesn’t sleep,” the brother said.

His brother also addressed Nagi’s threat to behead his daughter in 2013, which resulted in his arrest.

“When the FBI went to see her, she told them to get out of here,” he said.

About six weeks ago Nagi gave her away at her wedding, relatives said.

Attorney Jeremy D. Schwartz, Nagi’s assigned counsel, had argued that Nagi is not a flight risk because he has known he was under scrutiny since last year, when the government seized a phone he owned when he returned to the United States.

“He knows they’re reading his Twitter account. He’s living at home. He didn’t flee,” Schwartz said. “There’s no allegation he made it to ISIS other than contacts with his sister. Names of organizations are not mentioned in the texts. They can’t show he intended to contact them, except for inferences of the text messages.”

In court Schwartz addressed the issue of the cases in which he was accused of harming his daughter in 2011 and 2013. The attorney told Scott the first one ended without the charges being substantiated by Erie County Child Protective Services and the other concluded in a reduced charge of harassment and a $100 fine.

“That’s not a history of violence,” Schwartz said. “The government has been following Mr. Nagi for years and if he was a threat, they could have gotten him sooner. They are talking about the future and inferences.”

Was it just rhetoric?

Citing the constitutional right of free speech, particularly for political and religious discussion, Schwartz suggested harsh comments Nagi made online might simply be “mere rhetoric.”

“There is no evidence Mr. Nagi went through with all these things, beheadings and killings and, by the way, people are allowed to say these things,” Schwartz said, adding that none of the social media postings indicated Nagi “had any ill designs on anyone in the area.”

Of Lynch’s statement that labels on prescription pill bottles belonging to Nagi appeared to be altered, Schwartz said his client suffers from anxiety, but does not take the medications because of “the way the pills make him feel.”

As to Nagi’s owning an assault rifle, the lawyer said his client registered it when the controversial New York SAFE Act was adopted.

“What kind of terrorist registers his gun?” Schwartz said, adding that “none of his travel was illegal and it was documented.”

Having family in Yemen, he said, does not make him an increased flight risk – “he has more family here than in Yemen.”

Schwartz requested home confinement with bail in the amount of a $75,000 property bond secured by the home Nagi’s mother owns in Lackawanna. He argued Nagi could be relied upon to attend all court proceedings against him because he would never “financially ruin his mother or family members” by fleeing.

Charges defended

Hochul, when questioned about charges being brought related to actions that have yet to occur and the issue of free speech, said the U.S. Supreme Court has ruled that the law prohibiting material support to terrorist organizations does not infringe on free speech.

“I believe it was Benjamin Franklin who said democracy is not a suicide pact,” Hochul said in explaining why it was important to move on arresting Nagi this week. The government, he added, could have faced criticism either way for having acted too soon without enough evidence or failing to act quickly enough had the defendant committed a violent act.

Lanser, head of the FBI’s terrorism investigation unit in Buffalo, said ISIS has recruited about 200 Americans who have gone to Syria, making it impossible to track them “until they come back, though some get killed and others continue to fight.”

Nagi is scheduled to return to federal court at 10 a.m. Aug. 12 for a preliminary hearing.

Buffalo News Staff Reporter Janice L. Habuda contributed to this report. email: lmichel@buffnews.com