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Making a federal case out of an obscure leaf
Courts to decide if khat is an illicit drug or more like a double espresso
Caught in the crossfire
In Ohio's first khat trial in 2001, Mahad Samatar was sentenced to 10 years in prison.
By Kari Huus
May 16, 2007
When federal drug enforcement agents announced last summer that they had arrested scores of suspects in an “international narcotics-trafficking organization” with operations in New York and Seattle, they hailed it as the first major crackdown on khat — a plant grown in the Horn of Africa and chewed like tobacco for its stimulant buzz.
But more than nine months later, prosecutors in Seattle have dismissed charges against all but a handful of defendants, and the few expected to go to trial next month are considered to have a good chance of avoiding jail. The New York case, meantime, is teetering on a fine legal argument over whether khat is a powerful illicit stimulant or something more akin to a double espresso.
The dual cases have rocked close-knit Somali communities in the United States, raising fears among the mostly Muslim immigrants that the defendants could be deported back to the violence and chaos they fled. They also are concerned that the lives of those left behind will be complicated by the government’s implications that the khat trade is somehow linked to terrorist networks in northeastern Africa.
The government’s zeal in pursuing khat smugglers also has raised questions about its priorities. The U.S. Drug Enforcement Administration led the 18-month-long investigation that spanned three continents, involved a dozen federal, state and local agencies and required thousands of hours of wiretapping. Dozens of court-appointed attorneys have represented defendants who could not afford lawyers.
‘An extremely expensive fight’
The crackdown, which was dubbed “Operation Somali Express,” by the DEA, went public with the unsealing of federal indictments on July 26. Prosecutors in the Southern District Court of New York charged 44 people with a range of khat-related crimes — including money laundering and conspiracy to import and distribute the leaves. In Seattle, 18 defendants were charged with conspiring to import and distribute the substance.
“Operation Somalia Express struck at the heart of a significant trafficking organization that was sending drugs to the United States,” DEA special agent Rodney Benson in Seattle said in a press release announcing the indictments. “This drug has the same dangerous and damaging effects as other drugs and some of the huge profits from the khat trade were being returned overseas.”
But many experts challenge that assertion, noting that khat has been used in social and religious settings in Somalia and surrounding countries for centuries and is legal in the majority of Western countries.
The World Health Organization has studied khat repeatedly over the years, most recently in 2006 when it assessed its health impact as quite modest. It also has concluded that it does not merit international control.
“No one except the U.S. government asserts khat is particularly addictive,” said Bob Burrows, a professor of Middle East politics at the University of Washington, who spent eight years in Yemen, another khat-chewing society. “Another thing is there is no hallucinating. Khat gives a sense of well being. It’s a very social thing.”
Major federal resources
The DEA, which received the lion's share of the $13.8 billion budget for U.S. drug control efforts in fiscal 2007, declined to estimate the cost of the operation. But when asked if this was a major law enforcement effort, DEA special agent Erin Mulvey replied, “Absolutely. …It was one of the largest concerted efforts among DEA and (other enforcement) agencies.”
In addition to yielding 62 suspects, the operation resulted in the seizure of 5 tons of khat —roughly $2 million worth of the plant, according to the DEA — in the New York case.
Information from that probe prompted a sting in Seattle, where the federal Organized Crime and Drug Enforcement Task Force, working with a dozen other agencies, seized another 1,000 pounds of khat.
Trafficking in what?
Khat has been used in social and religious settings in Somalia and surrounding countries for centuries, mainly by men. Taxi drivers, students — and boy-soldiers — use it stay alert and quash hunger. Migrants from the Horn of Africa, including some 150,000 Somalis who have come to the United States since the early 1990s, brought the habit with them.
Most khat users chew it — storing the wad of leaves in a cheek while swallowing the juices, though it also can be made into tea. They describe the effects as wakefulness, euphoria and talkativeness. Its defenders liken it to coffee drinking in other cultures.
There are side effects associated with khat use, however, such as insomnia, followed by exhaustion and testiness, and a list of more serious risks for long-term users. Women complain that it makes men lazy, sexually impotent and is a waste of scant financial resources.
Like most vices, its impact on society is hotly debated.
Sgt. Ben Casuccio, a narcotics officer with the Columbus, Ohio, Police Department, said the drug has had a negative impact on the large Somali community in his city and is a potential "gateway drug" to stronger substances.
"These people, as soon as it comes in, they start using it. ... Other people in the community complain about problems it causes," including domestic disputes and making users not to want to go to work, he said.
But many experts say there is no evidence that its appeal extends beyond its cultural pull.
“This is a very culturally specific drug,” said Peter Reuter, a professor at the University of Maryland’s department of criminology. “It’s so hard to think that there’s a great public issue here. It’s not that khat has become the new yuppie drug. … It’s got no cachet.”
Khat is legally imported in many Western countries, including Britain, Germany, the Netherlands and Italy, and is freely used among African immigrants in those nations. It is barred in some other countries, such as Sweden, while Australia allows khat importation only for personal use.
The United States has taken a hard line on khat, but the law that applies to it is ambiguous. It is this legal gray area that is being debated in court.
“There are issues in this case that are not issues (in other drug cases),” said Sam Schmidt, an attorney for one of the defendants in the New York case. “If it’s a cocaine or marijuana case, you don’t have issues about whether it is a drug or not.”
Fresh khat contains cathinone, a stimulant that is internationally controlled under United Nations agreements and listed as a Schedule I controlled substance in the United States, alongside heroin and LSD.
Rapid cathinone decay creates urgency for sellers and enforcers alike. Traffickers often wrap it in banana leaves to try to preserve its freshness during shipping.
And law-enforcement agencies that intercept khat typically rush it to the nearest lab in refrigerated containers to test it before the active ingredient vanishes.
The levels of cathinone in khat seized during raids in New York were “detectable,” which the government maintains is enough to convict. But defense attorneys have challenged the tests, arguing that they may have reversed the breakdown process and produced traces of cathinone from cathine.
Defense attorneys also have filed motions seeking to suppress evidence gained from wiretapping, arguing that DEA did not have probable cause to believe that any of the banned substance would be present in the khat by the time it arrived in the United States.
One such motion already has been rejected, but U.S. District Judge Denise Cote made it clear in remarks accompanying her ruling that prosecutors must prove that the defendants conspired to import and traffic cathinone, not just khat.
Not always a federal priority
Federal sentencing guidelines equate possession of 100 kilograms of khat — roughly three or four large suitcases full — with possession of 1 kilogram of marijuana or 1 gram of heroin.
For years, when travelers were caught at the airport carrying khat, the plant would be seized and the travelers sent back home. And khat is not once mentioned in the 95-page National Drug Control Strategy for 2007.
Some states also are taking a tougher stance.
Mike Weinman, legislative liaison from the Columbus Police Department, is pressing for changes in Ohio — home to about 40,000 Somali immigrants — that would make it easier to prosecute khat possession cases.
"The problem is getting worse," he said. "We've got officers who are walking into bars where everyone is chewing khat. What do you do with these people? The officers call narcotics and there's not really much they can do."
The exception to that rule is the 2001 case of Mahad Samatar, who was prosecuted in Ohio's first khat trial. Samatar was arrested after picking up a 66-pound khat shipment that was intended for guests at a Somali wedding.Despite being a first time offender, Samatar received a mandatory-minimum 10-year sentence. Many in the community believe the heavy penalty, which came right after the 9-11 terrorist attacks, was the result of a prevailing anti-Muslim mood.
Terrorists profiting from khat?
Lawyers, defendants and some law enforcers argue that the reason behind the federal turnaround on khat was the belief that the khat profits are funding terrorist groups operating in the Horn of Africa.
After the indictments, FBI Assistant Director Mark Mershon said that the continuing probe would seek to determine the "ultimate destiny of the funds," which intelligence suggested was based in "countries in east Africa which are a hotbed for Sunni (Muslim) extremism and a wellspring for terrorists associated with al-Qaida."
Media coverage of Operation Somali Express amplified the alleged terrorism connection. ABC’s “Nightline” program, which was allowed by federal officials to cover the operation before it became public, broadcast a program on July 26, titled, “Drug of the Terror Lords.”
“What was at stake?” it asked rhetorically. “Stopping the spread of a new drug menace which could be helping fund terrorism.”
“ East Africa is the home to several of the East African al-Qaida cell members,” John Demarest, an FBI agent working with the Joint Terrorism Task Force, said in the report. “ Somalia offers shelter, logistics, through various local jihadi group there, within Mogadishu and surrounding communities. They offer a training venue, funding, jobs and the like.”
Many Somali immigrants also see an anti-terrorism agenda behind the khat crackdown.
‘Part of the ongoing war on terror’
In the more than two years since Operation Somalia Express got under way, no terrorism-related charges have been filed and no connections between the khat trade and terrorists has been revealed.
A DEA spokeswoman would not comment on whether any evidence has surfaced tying the khat trade to terrorism, saying that was the domain of the FBI. The FBI said it could not comment on an ongoing investigation.
Some experts remain confident the links will turn up. Among them is Harvey Kushner, a criminal justice professor at Long Island University, who has long argued that khat money is funding al-Qaida or associated terror organizations.
Kushner, a TV pundit who has acted as a counterterror consultant for the FBI, the Federal Aviation Administration, and the Immigration and Customs Enforcement agency, devoted an entire chapter to the notion of a khat-terrorism link in his 2004 book “Holy War on the Home Front.”
“This has been my baby,” he said. “I’ve been lobbying for years to get cooperation between governments, especially United States and ( Great Britain), on this. My hope is we’ll be able to show a money trail funneled back to terrorist activities including Somalia, East Africa and other places in the world where al-Qaida has a strong foothold.”
But many Somalis and Africa scholars question the logic of such a link. They point out that the Islamic Courts Union, the fundamentalist Islamic government that briefly took power in Somalia last year, tried to ban the use of khat.
Islamic government toppled
“I think the whole premise (of a khat-terror link) is really quite questionable,” said Ruth Iyob, professor of African politics at the University of Missouri-St. Louis. “The biggest crowd to profit from khat was the warlords who were supported by the U.S. government.”
Proving such a link, if one exists, is complicated by the way that khat arrives in the United States.
In the New York case, authorities allege that the tons of khat came in 20- to 30-pound bunches, usually carried by dozens of couriers before finally arriving in commercial air express packages from Europe. The challenge for prosecutors will be to create a paper trail linking the shipments to one another.
With the trials scheduled to begin next month in both the New York and Seattle cases, the pool of defendants is shrinking.
Of 18 original defendants in the Seattle case, only five are now headed for trial on June 19. Two were dismissed for mistaken identity and five others were freed after prosecutors decided they were peripheral to the case.
Two defendants who were described in the indictments as ringleaders of the khat-smuggling operation pleaded guilty to agricultural felonies — a crime punishable by 12 months probation and $1,000 fine. Four others have pleaded guilty to misdemeanor possession of a controlled substance.
In a new indictment filed on April 5, the five remaining defendants are charged with conspiring to import and distribute cathinone. The charges could bring up to 40 years in prison, but given sentencing guidelines and other considerations, it would be surprising if they received a harsher punishment than the alleged ringleaders, observers say.
“They need to avoid disparity in sentencing,” said attorney Jeffrey Coopersmith, who represented a defendant in the Seattle case against whom all charges were dropped.
N.Y. prosecutors focus on eight
The outcome of that trial will likely determine whether the other 36 defendants will stand trial or, if guilty verdicts are handed down, seek plea bargains.
Critics say common sense suggests there will be only one trial, but also indicates that common sense is not necessarily the driving force behind the khat cases.
"Hell hath no fury like a zealous federal prosecutor on a mission," said Tim Gresback, a Moscow, Idaho, defense attorney who has been following the federal cases. "If your ideology impels you to conclude that an expensive prosecution of Somalis for chewing on a shrub will somehow reduce terrorism, common-sense financial considerations become irrelevant. When obsessed with terrorism you see it everywhere, even hiding in a shrub."
Source: MSNBC Interactive