It’s time to dive into some court testimony.
I can think of no better place to start than with Dr. Matthew Levitt. As you may recall from my previous post, Dr. Levitt was an expert witness called by the government to discuss the “jihadi materials” found on the laptop of Dzhokhar Tsarnaev. I have a few follow-up posts planned for the subjects brought up in that entry, but I think a clearer, more in-depth look at the foundation laid by the prosecution in Dr. Levitt’s testimony is the best place to begin. As you may recall, I had several problems with the validity of the evidence cited by Dr. Levitt — chiefly the propaganda materials found on Dzhokhar’s computer — as being a reliable measurement of radicalization. Since so much in this case rests on motive, if there is no compelling evidence that Dzhokhar was radicalized, it fundamentally breaks down the prosecution’s theory of the case, not just in the penalty phase, but in the guilt phase as well.
At the time of my last post, I was relying on media coverage of Dr. Levitt’s testimony and conceded that I could not know exactly how accurate the approximation was. However, thanks to an amazingly kind and generous reader, I now have the full transcript of his direct and cross examination, and can give it a more informed critique. Many, many thanks to this reader.
I confess that I hoped getting my hands on the full transcript would force me to revise my opinion of Dr. Levitt’s testimony. A lot can be lost in translation when it comes to the media, particularly when journalists are frantically condensing real time interactions into tweets of 140 characters or less. However, for this I must give credit where it is due: the responses quoted from Dr. Levitt are more or less presented as they were delivered. Unfortunately, that means that at its core, his testimony as an expert witness is inherently flawed, and there are valid legal questions that can be asked about why it was allowed in the courtroom at all. I am also interested in the parts of the transcript that were not reported by the media — direct quotation reveals much that fell through the cracks, as does the sidebar conference discussions that were had out of earshot of the jury and media, but recorded by the court reporter.
By the end of this post, it’s my hope you will understand not only what makes Dr. Levitt’s testimony so flawed, but why he shouldn’t have been allowed to testify as an expert witness in the first place. Allowing his testimony was a clear abuse of discretion by Judge O’Toole, and defense counsel tried their best to stop it, but to no avail.
Lack of Qualifications As An Expert Witness, Part One: the Psychology of Radicalization and Terrorism
First, we need to take a look at what Dr. Levitt was brought in to do and what his qualifications were (or weren’t). I initially raised this issue in my last post in regards to his definition of radicalization: I thought he was unqualified to speak on matters of psychology, which is what radicalization is, and global jihadism, which is a transnational social movement rather than a defined militant group with ties to one particular nation state. I pointed out that his background is in International Relations, focusing on the Israeli-Palestinian Conflict, and the groups Hamas in Palestine and Hezbollah in Lebanon. This type of education simply does not qualify a person to testify about the nature and evolution of global jihadism or the psychology of radicalization. Nor does it render a person competent in explaining the cultural and political backdrop of Chechnya, nor the religion of Islam. Yet, all these subjects were covered by Dr. Levitt in his testimony as if he were an expert. What is interesting about the transcripts, however, is that they illustrate just how specifically Dr. Levitt seems to highlight his own lack of qualifications, despite a laundry list of professional achievements.
At first, he details his professional background, including his employment at The Washington Institute for Near East Policy, where “I direct a program on counterterrorism and intelligence, and I’m a senior fellow there”(4). Before this position, he “served as the Deputy Assistant Secretary for Intelligence and Analysis of the U.S. Department of Treasury”(5) and before that he was “a counterterrorism intelligence analyst at the Federal Bureau of Investigation at headquarters in Washington, D.C., in the International Terrorism Analysis Unit focused on Middle East terrorist organizations’ activities here in the United States”(6).
While none of this should allow him to cover religion, psychology, or the history of Russian-Chechen relations, credentials such as those should at least be impressive from a law enforcement standpoint — clearly he has dealt with terrorism cases and matters of counterintelligence before. However, I would have been able to put more stock in these experiences if I had not already uncovered evidence that the FBI’s intelligence assessments on matters of radicalization is severely lacking a sound scientific base. Dr. Levitt states:
Also in government you have ongoing education. And so I took a long list of courses, some provided by the FBI, some provided by other parts of the U.S. intelligence community on counterterrorism, counterterrorism analysis and the like, which were required in part for my advancement — professional advancement within government service. (8)
The revelation that Dr. Levitt worked for and continues to be trained by the FBI makes, sadly, perfect sense. As discussed in my previous post, the FBI and the NYPD both released intelligence analyses concerning radicalization in the post-9/11 landscape, and their assessments have become the cornerstone of counterterrorism efforts in the United States. Unfortunately, they are riddled with fallacies, consult little established psychology and cite only a handful of case studies. The fact that Dr. Levitt was trained by agencies operating off those inaccurate reports comes as no surprise. There are even times when his explanations contain identical flaws to ones that were so highly criticized by legal scholar Amna Akbar in her article “Policing Radicalization,” which I cited heavily in my last post. For example, in explaining radicalization to the jury, he says:
The problem that we have nowadays — and this is something I studied closely, especially over the past few months — is that the pace of radicalization is much, much faster, the time period is much, much shorter over the past few years than we have seen in the past. (41-42)
This eerily echoes statements made by Silber and Bhatt in their NYPD intelligence report, “Radicalization in the West: the Homegrown Threat“:
• Prior to 9/11, the entire radicalization process moved at a much slower rate. There was no direct link to jihad, other than to become a mujahedeen. Aspiring jihadists would travel to Afghanistan without any idea that they could become actual terrorists. Now, there is no longer any illusion as to what the adoption of jihadi-Salafi ideology means.
• The radicalization process is accelerating in terms of how long it takes and the individuals are continuing to get younger. Moreover, with the higher risks associated with heading down this pathway, individuals will seek to conceal their actions earlier, making intelligence and law enforcement’s job even more difficult. (10)
Neither Silber and Bhatt nor Dr. Levitt cite any scientific data to back up such a claim. It’s also interesting to note the time difference in the statements: Silber and Bhatt wrote this report in 2007, and Dr. Levitt testified in 2015. It would stand to reason that if there was indeed an acceleration in the radicalization process after 9/11, there should be a definitive speed increase observable in radicalized individuals in the eight intervening years between the NYPD report and Dr. Levitt’s testimony. However, neither source is able to nail down a single statistic in order to give a comparison to radicalization in the pre-9/11 era, nor to attacks in their respective time frames. Yet, Dr. Levitt insists that it could take nearly no time at all for someone to jump from the consumption of “radical material” to enacting terrorism:
Some people would need to have a lot of material and be reviewing it all the time and really, you know, immersing themselves in it, some people, short-term immersion of just a few particularly inspiring pieces of radicalization written, audio, video will be enough. (42)
This is an an awfully convenient point of view to have when your defendant has so few links to a terrorist attack as it is. To harken back to the mechanics of radicalization proposed by psychologists Clark McCauley and Sophia Moskalenko, there are several factors in an individual’s life needed to facilitate radicalization, most of which are quite visible to onlookers. But from Dr. Levitt’s perspective, one doesn’t need to display compelling behavioral shifts beforehand, as long as a few particularly spirited pieces of propaganda were viewed!
Therein lies the fatal flaw to his testimony: by his own admission, he has reviewed a supremely narrow slice of the case’s reality, and is not qualified to speak on the larger issues at play outside of the law enforcement perspective. As he describes his analysis process, he says:
I review the material that is provided, so the case material, and I might put that in context, either historical context or context of issues that come up in the context of that case. Every case is different. Some cases require me to review a tremendous amount of material specific to that case, some very little. … I have to take the evidence at face value. I’m in no position to be able to vet it, but I’m in a position to be able to comment on it, put it into context — the larger context of other material like it that I’ve come across in my own research, again, historical context, the context of different themes, different trends, different modus operandi. (13-14, emphasis mine)
He states flat out that he focuses on the content of the propaganda material, what trends and contexts are present in that information, and can place it within the larger context of the global jihadism movement. Therefore, he is probably qualified to say quite a bit about the history and motives of the authors of said material, but nothing at all about its audience. If perhaps Dzhokhar had written for Inspire Magazine, Dr. Levitt’s perspective might have been insightful. But the supposition that one can tell anything about a person based solely on the content of his possible reading material is beyond misguided. That’s about as helpful as writing a paper analyzing the themes and historical context present in Shakespeare’s plays in order to define the type of people who are likely to enjoy seventeenth century British literature: although you might be able to make a few general educated guesses — anyone willing to slog through the archaic language must like a challenge! — you are almost certainly wasting your time. (And to keep the analogy as accurate as possible to the reality here, I must point out that finding a borrowed copy of Hamlet in someone’s bedroom doesn’t automatically guarantee the person has read it, especially when it was given to him by his overzealous, Shakespeare-obsessed older brother.)
Lack of Qualifications as an Expert Witness, Part Two: The Religion of Islam
In addition, Dr. Levitt is unable to provide any context for a number of things, including psychology, sociology and especially Islam, beyond the scope of terrorism. In these areas, he confesses, he is entirely self-taught. He frames it this way:
And within that area of [terrorism] study I’ve had to learn a lot of different things, from things that relate to social work and psychology, because one aspect that drives people is either local grievances, particular circumstances to an individual, anger over international grievances, foreign conflicts; but then the other half of the equation is ideology. And the fact is that Islam is not terrorism full stop, and the fact is that all religions have the capability for extremism, but the fact is that today the radicalization that we are seeing kind of as almost a global insurgency is happening in the name of Islam; not in the name of the Islam practice by the vast majority of Muslims, but it’s happening in the name of Islam, and the twisting of certain Islamic concepts. (26-27)
It is respectful of him to identify that he does not equate the religion of Islam with the phenomenon of terrorism, and honestly I do appreciate the sentiment, as far too many people are in the spotlight these days doing just that. However, saying that you don’t find a causal link between Islam and terrorism doesn’t excuse you from then turning around and indicating a causal link between Islam and terrorism. Over the course of his testimony, Dr. Levitt makes several statements about regular Muslim practices, radicalized individuals, and then never defines the difference between the two, nor where the line is where one gives way to another. He merely harps on that respectful adage: “As I said earlier, you know, Islam does not equal terrorism full stop. I can’t stress that enough,” and in the next breath adds, “But this particular set of radicalized ideologies is an extremist variation of Islamic concepts”(36). He continues this by trying to qualify that radicalizing factors aren’t exclusive to Islam: “Now, mind you, of course, it doesn’t have to be a deviation of Islam. It doesn’t have to be radical Islamist ideology, right?”(39) but then identifies traditional Muslim music as “nasheeds, which are like devotionals — which can be devotional in a purely, you know, religious way, but many radical Islamist groups use them to — in singing a song to some type of percussion music promoting dangerous radical, explicitly violent ideas”(40). He also sums up a long explanation about the history of global jihadism by saying, “Those are critical concepts for moving someone beyond traditional Islam to this radical Islamist ideology that says that there is an obligation to engage in jihad against the enemy”(52) but later claims, “again, let’s not associate this with traditional Islam”(74).
It becomes very difficult not to associate terrorism with “traditional Islam” when the person meant to be an expert keeps doing it. This continues to happen for a very simple reason: Dr. Levitt clearly does not understand Islam enough to make a judgment call on what is “radical” and what isn’t. He says as much himself, responding to questions by prosecutor Aloke Chakravarty:
Q. So there are some concepts there that I just wanted to have you explain a little bit to the jury. I think you started to explain what jihad was. Are you a religious scholar?
A. I’m not.
Q. Okay. So what is the basis of your understanding of these concepts?
A. Well, one of the things that I’ve developed expertise in in the course of my studying terrorism studies is the concepts in the process of radicalization. Arguably, one of the most important issues we’re dealing with today: How is it that people are being radicalized around the world to want to go out and carry out acts of terrorism in whatever venue that may be: at home, today in Syria, whatever it is.
And so I’ve spent a tremendous amount of time studying these to have a better understanding, not as a Muslim scholar to be sure, but as a scholar of terrorism studies, how are these being used and implemented to radicalize, motivate and then operationalize, dispatch and send people to engage in these types of acts of terrorism. (26-27)
If you’re coming at Islam from the perspective of terrorism, and if you describe yourself as “not a Muslim scholar to be sure,” you have no business making a judgment call on the tenets of Islam, whether in a terrorist or non-terrorist context. However, despite establishing that Dr. Levitt has not studied the religion, Mr. Chakravarty has him define several Islamic terms, including ummah, dunya, kufar, and the most controversial, jihad. I won’t split hairs on what he has to say about the first three, but the explanation of jihad in the Islamic sense, in a case where the defendant, Muslim from birth, has been accused of being a radicalized jihadist, has the potential to be incredibly damaging if not handled properly. Here is what Dr. Levitt has to say about it:
Q. So you explained that there was a kind of a greater jihad and a lesser jihad. How do adherence to the global jihad movement refer to jihad?
A. So the greater jihad is traditionally the jihad of one’s self, and that is self-improvement, becoming a better person, and that can be as behaviorally, just being a better person, being kind to one’s neighbor and family, and also becoming a more pious person, you know, giving more charity, making the pilgrimage, et cetera. And these are praiseworthy. The lesser jihad traditionally was militant, was a violent jihad. And it can be done in a defensive manner and it can be done in an offensive manner. (27)
I cannot express strongly enough how wrong this is. I may not be a Muslim scholar either, but I do remember from the class I took on Islam in college that this is a wildly simplistic summation of the concept, so simplistic as to be dangerously inaccurate. While there are two kinds of jihad, greater and lesser, to my knowledge the widely excepted interpretation of the idea is that greater jihad means to work on keeping your spirituality and faith in God internally, on a personal level, and lesser jihad means the struggle to keep this faith externally, out in the world, which does not relate specifically to violence or the military. I was raised Catholic, and this concept meant a lot to me when I learned about it as an undergraduate; it sounded very similar to the teachings I received in church and Catholic school about “keeping your faith,” except we didn’t have one all-encompassing word for it. Honestly, I’ve always been a little envious that Islam had developed a specific term for a struggle that never seemed clearly defined when I was growing up in the Catholic church.
But you certainly don’t have to take my word for it, and you shouldn’t. I don’t know much more about it than Dr. Levitt. However, you should take the word of an expert on Islam. For this, again I turn to religious scholar and sociologist Reza Aslan, who has written books on Islam, global jihadism, and Christianity. In his book No god but God: the Origins, Evolution and Future of Islam, Aslan talks about the history and development of the Islamic concept of jihad:
Today, the traditional image of the Muslim horde has been more or less replaced by a new image: the Islamic terrorist, strapped with explosives, ready to be martyred for God, eager to take as many innocent people as possible with him. What has not changed, however, is the notion that Islam is a religion whose adherents have been embroiled in a perpetual state of holy war, or jihad, from the time of Muhammad to this very day.
Yet the doctrine of jihad, like so many doctrines in Islam, was not fully developed as an ideological expression until long after Muhammad’s death, when Muslim conquerers began absorbing the cultures and practices of the Near East. Islam, it must be remembered, was born in an era of grand empires and global conquests, a time in which the Byzantines and Sasanians – both theocratic kingdoms – were locked in a permanent state of religious war for territorial expansion. The Muslim armies that spread out of the Arabian Peninsula simply joined in the existing fracas; they neither created it nor defined it, though they quickly dominated it. Despite the common perception in the West, the Muslim conquerers did not force conversion upon the conquered peoples; indeed, they did not even encourage it. (80-81)
This is why it’s so incorrect to define jihad in any way as traditionally militant and violent. In actuality, the commonly held association in the Western world that the term “holy war” is a translation for jihad is also wrong. Aslan explains:
In fact, the term “holy war” originates not with Islam but with the Christian Crusaders who first used it to give theological legitimacy to what was in reality a battle for land and trade routes. “Holy war” was not a term used by Muslim conquerers, and it is in no way a proper definition of the word jihad. There are a host of words in Arabic that can be definitively translated as “war”; jihad is not one of them.
The word jihad literally means “a struggle,” “a striving,” or “a great effort.” In its primary religious connotation (sometimes referred to as “the greater jihad”), it means the struggle of the soul to overcomes the sinful obstacles that keep a person from God. This is why the word jihad is nearly always followed in the Quran by the phrase “in the way of God.” However, because Islam considers this inward struggle for holiness and submission to be inseparable from the outward struggle for the welfare of humanity, jihad has more often been associated with its secondary connotation (“the lesser jihad”): that is, any exertion – military or otherwise – against oppression and tyranny. And while this definition of jihad has occasionally been manipulated by militants and extremists to give religious sanction to what are in actuality social and political agendas, that is not at all how Muhammad understood the term.
War, according to the Quran, is either just or unjust; it is never holy. Indeed, jihad should be best understood as a primitive “just war theory”: a theory born out of necessity and developed in the midst of a bloody and often chaotic war that erupted in 624 C.E. between Muhammad’s small but growing community and the all-powerful, ever present Quraysh. (81-82)
Aslan also covers the evolution of jihad in the historical context, and explains why it was so ground-breaking for the people and the time:
The doctrine of jihad, as it slowly developed in the Quran, was specifically meant to differentiate between pre-Islamic and Islamic notions of warfare, and to infuse the latter with what Mustansir Mir calls an “ideological-cum-ethical dimension” that, until that point, did not exist in the Arabian Peninsula. At the heart of the doctrine of jihad was the heretofore unrecognized distinction between combatant and noncombatant. Thus, the killing of women, children, monks, rabbis, the elderly, or any other noncombatant was absolutely forbidden under any circumstances. Muslim law eventually expanded on these prohibitions to outlaw the torture of prisoners of war; the mutilation of the dead; rape, molestation, or any kind of sexual violence during combat; the killing of diplomats; the wanton destruction of property; and the demolition of religious or medical institutions — regulations that, many centuries later, would be incorporated into the modern international laws of war.
But perhaps the most important innovation of the doctrine of jihad was its outright prohibition of all but strictly defensive wars. “Fight in the way of God those who fight you,” the Quran says, “but do not begin hostilities; God does not like the aggressor”(2:190). Elsewhere the Quran is more explicit: “Permission to fight is given only to those who have been oppressed… who have been driven from their homes for saying, ‘God is our Lord'”(22:39). (85)
Relating all of Aslan’s commentary back to Dr. Levitt’s testimony, it is quite embarrassing to give a comparison. Jihad is not simply “militant” and “violent” in nature, nor can it be done in a “defensive manner” or “offensive manner.” The concept and historical context of its evolution is far more complicated and nuanced than that. Presenting such a limited and flawed view of the concept to the jury is both deceptive and outrageous. However, I am not entirely faulting Dr. Levitt for this. He did not present himself as an Islamic scholar at any point, and only answered the questions that were posed to him by the prosecution. While I find it troubling that someone so high up in the echelons of American counterterrorism doesn’t have even a basic understanding of the religion he must deal with most often (and such widespread ignorance perhaps may account for why he claimed “I don’t know anybody”(42) who can predict who will become a terrorist!), I don’t believe he is willfully malicious or bigoted… just tragically misinformed.
This, however, points to a larger problem with the American perception of not just the terrorism threat, but the general understanding of Islam as a religion and Muslims as people. Whether we like it or not, there has been a prevailing attitude in this country, jumpstarted by 9/11 and exacerbated by our own responses to it in terms of policing and politics. This attitude has inexorably married public perception to the wrong and dangerous idea that there is a correlation between the two; that is, to use Dzhokhar’s own terms, “fools who say Islam is terrorism.” At this point, I certainly don’t blame him for expressing such frustration, considering since I’ve started paying attention after his arrest, I’ve encountered it myself almost every day.
Take, for example, the recent segment on HBO’s Last Week Tonight With John Oliver, covering the migrant and refugee crisis in Syria. Oliver took issue with Fox News for inaccurately depicting a video of Muslims riding the train in France as possible terrorists.
As the video played, a Fox News reporter stated:
A new video surfaces online showing why some are worried Europe is opening its doors to potential terrorists. Those are reportedly Muslim refugees on a train in Europe chanting “Allahu Akbar” or “God is great.” Now, to be clear, we are not saying that any of those people are terrorists, or in any way affiliated with a terror group, but it does highlight just how many of these refugees who are fleeing violence in Iraq and Syria are Muslim.
To this, Oliver responded:
Okay. Okay. First, you don’t get to claim that you are not calling those people terrorists when your lower third says, “Terrorists Inbound Question Mark.” If you are really not saying they’re terrorists, maybe change that to something more accurate, like “People Take Train” or “Some Wear Hats, Others Less So.”
And second, describing that as a “new video that sheds light on the migrant crisis” is a little misleading. Because in researching this story, we found a version of that same video uploaded onto YouTube back in 2010, well before this migrant crisis even began.
John Oliver’s wonderful scathing commentary aside, this particular story illustrates just how prevalent it is for certain news outlets to promote anti-Muslim prejudice, appealing to a more conservative portion of the population — the kind that statistically is more likely to find themselves sitting on death-qualified juries. It repeats that tired qualifier present in Dr. Levitt’s testimony as well, the insistent “I’m not saying Islam is related to terrorism, but” formula. And even in people who would say that they don’t have anything against Muslims, and are trying to do their jobs as jurors honestly and in an open-minded manner, having a government expert witness come in and tell them his own biased, inaccurate view of Islam as a religion is not going to render them competent to decide when a Muslim defendant’s behavior is radical and when it isn’t.
Lack of Qualifications as an Expert Witness, Part Three: Chechen History
Unfortunately, the damage inflicted by Dr. Levitt’s testimony doesn’t end there. After the prosecution had him fallaciously explain Islam, they also asked him to lend context to the status of Chechnya in larger global issues, despite, as far as I can tell, never having studied the region in any true capacity. Nevertheless, Mr. Chakravarty of the prosecution asks him to give a lesson on the last few decades of Chechen history:
Q. Now moving from individuals to places, you talk a little bit about what the geopolitical situation was in the Caucasus, particularly in Chechnya, as it relates to this global jihad movement in the last 20, 30 years?
A. When the Soviet Union fell, the Republic of Chechnya rebelled. And there were two distinct wars in the 1990s. Within these, there also grew a jihadi element. And Chechnya became a prominent rallying cry for the jihadists. Not all of this war was jihadi; there were Chechens who were rebelling against the new Russia and they weren’t jihadis. But the jihadists used this as a platform. And many key jihadists tried to go to Chechnya. Many did. Some current al-Qaeda leaders tried to go and made it close but didn’t get all the way there, but the fact that they were trying to get there shows how prominent it was at the time in the jihadi landscape. And it has continued to be ever since one of many foreign conflicts that jihadis have taken for themselves, whether it was originally theirs or not, to use to radicalize people. Look what the infidels, in this case the Russians, are doing to Muslims, in this case in Chechnya. (53-54)
Again, this barely scratches the surface of the real history of the two Chechen wars that played out in the 1990s and early 2000s. Not only that, but it leaves out quite a bit of needed contextual information when the aim, stated outright, is to paint Chechen history only in the light of how it relates to global jihadism. Doing so unfairly — and rather insultingly, might I add — renders the suffering of a historically oppressed people as little more than a childish rebellion that created fertile soil for those evil jihadis to cultivate for their own ends. Dr. Levitt includes nothing about the centuries-old Russian Imperialism that conquered much of the North Caucasus in the way the United States conquered the Native American population of the Western frontier, nor now after World War II, most Chechens found themselves herded into cattle cars and exiled to Kazakhstan and Siberia because Stalin’s regime falsely accused them of being allied with the Germans, nor how when the Soviet Union collapsed, the practice of religion that was banned for seventy years was suddenly a possibility again, causing a surge of religiosity in both the Russian Christian population and in the Islamic North Caucasus region. Nor did he mention that the Soviet Union fought an unsuccessful war in Afghanistan in the late 1970s and early 80s against militant Muslim fighters (who were backed by the US government), many of whom would then form the likes of al-Qaeda and the Taliban. Nor that in the 90s Chechen freedom fighters recruited many of these soldiers to bolster their numbers against the formidable Russian forces, appealing to them because they shared a common religion and a common enemy. Dr. Levitt does mention their leader, Ibn al-Khattab, but only to say:
Commander Khattab was a Jordanian — some say Saudis, but most likely Jordanian — who became a very senior jihadi commander in Chechnya. After he was killed, battalions were named for him. There are Chechen battalions fighting in the Syrian conflict now. I believe one is named for him. He became a very prominent personality in the Chechen context, in the Chechen jihadi context. (54)
First, it must be pointed out that Dr. Levitt is incorrectly identifying these battalions as “jihadi,” when he himself described the global jihadism movement as “not a group that has an office” which is “not led by a committee or an individual”(22). The fighters in the Chechen conflict could better be described as “Islamist” — referring to Islamism, a term that by dictionary definition means “a popular reform movement advocating the reordering of government and society in accordance with laws prescribed by Islam.” While the term “Islamist” itself is highly debated, as it often is used to encompass both moderate movements within governments and militant groups with more extreme aims, in this context it fits better, because the Chechen wars were based on nationalistic goals, not only ideological ones. They certainly did and still do have specific organized groups with leaders working toward said goals. In fact, scholars of the region and the insurgencies themselves have stated that the aims of the organizations are far more nationalistic than they are global. A PBS News Hour briefing on the North Caucasus states:
Chechens are reportedly among the foreign fighters in Syria’s civil war, joining Islamist militias against the Russia-backed Assad government. But the North Caucasus insurgency is rooted in local grievances and nationalist ambitions rather than the universal ideology of global jihad, Galeotti [a scholar of Russian security affairs at NYU] says, adding that those Chechens fighting abroad often hail from the diaspora.
The insurgency in the North Caucasus does not target foreign interests, analysts say. In the wake of the April 2013 Boston marathon bombing, in which two ethnic Chechens were responsible for a bombing that killed three people and wounded hundreds, the Caucasus Emirate’s Dagestani wing repudiated the attack, saying it was at war with Russia alone.
In short, to casually refer to Chechen rebel fighters as “jihadi” gave the mistaken impression to the jury that this ethereal global jihadism movement is far more widespread than it actually is — and perhaps even more bloodthirsty. To imply every militia in every corner of the Muslim world would welcome actions like the Marathon bombing is false, since in this case a prominent militant group in the North Caucasus specifically took pains to disassociate itself from the attack. Also, while it is true that terms like jihadist/jihadi and Islamist are often used interchangeably in the Western world, academically they do not mean the same thing, and I do question why someone like Dr. Levitt, who has a scholarly background in Islamist groups (Hamas and Hezbollah certainly fall under such a term) as well as global jihadism, would conflate the two.
Second, he gives no context to explain why those Chechen fighters might have reason to revere Commander Khattab, as he represented the people who came to their aid to fight for independence from Russia, a nation that has been persecuting them for well over two centuries. There are certainly Chechens who do not ascribe to the extreme interpretations of Islam that the militant rebels have adopted, but even among the secular population it isn’t unreasonable that the fight for independence might be met with respect or praise for making the attempt — especially if said population is far removed from the fighting itself, making it easier to idealize the grimmer realities. We as Americans do such things when we fondly remember our founding fathers, like George Washington, as military generals, or much more controversially, when certain civilians in southern states cling to the Confederate flag as a noble symbol of freedom fighting and not the support of slavery.
And finally, it does not seem to occur to Dr. Levitt that a young Chechen growing up in America might hear stories about his home country’s long and bloody history and, while trying to figure out his own identity, ascribe to it a sort of romanticism, and think of the Chechen Muslim fighters of days’ past perhaps as a cornerstone for inner strength and self-worth. Such notions might lead him to tweet statements like “proud to be from #Chechnya” and “i hold my own i got that #chechnyanpower” and pose lazily under an Islamic black flag associated with these movements in his own home without giving much thought to the larger global context. Which is why, on their own, these bits of “evidence” can in no way can stand in for proof that he was actively planning to commit terrorism.
But why would any of this occur to someone like Dr. Levitt? When you approach issues as he does, stripping from people every ounce of their humanity, ignoring the importance of their cultural, historical and religious backgrounds, taking into account none of their psychology, of course you are going to conclude that propaganda alone must move people to action, that radicalization can happen in no time at all, and that global jihadism is taking over the world.
Because that’s the final flaw in Dr. Levitt’s testimony. He unfairly gives the impression that worldwide, global jihadism inspiring lone attackers is the biggest threat. He phrases it this way:
With time, again, more crackdowns from — counterterrorism crackdowns by the international community and the rise of social media, what we found is a new phenomenon that in some ways is more difficult to contend with. I won’t necessarily say more dangerous, because it’s not quite as capable to carry out kind of spectacular attacks, but much harder to identify and stop, and that is the home-grown violent extremists, HVE, or the lone wolf or lone offender, as I prefer to call it. And this can be a lone individual or it can be a lone small group of individuals. (31)
He goes on to explain that lone wolves don’t necessarily set off the “trip wires” that terrorists in groups would before an attack, and instead move in more subtle ways that make it easier to stay “under the radar”(31-32). Then, prompted by Mr. Chakravarty, he launches into this explanation:
Q. And so in the last ten years, has this decentralized way become the strategic choice of the global jihad movement?
A. So this decentralization is a fact of life, and it means that it’s not like the old school terrorism has gone away. Al-Qaeda in the Arabian Peninsula, for example, has attempted to carry out multiple attacks targeting the West over the past few years. There are other al-Qaeda elements, one based out of Syria today that we’re very concerned, is plotting out of Syria — not attacks in Syria but attacks in the United States and in Europe. That kind of organized al-Qaeda or al-Qaeda franchise model still does exist. But on top of that, the much more immediate threat and phenomenon that we’re seeing more frequently is this phenomenon of the home-grown violent extremist, the individual or the small group. (32-33)
Unfortunately, despite name-dropping foreign terrorist groups and far flung points of the globe, Dr. Levitt neglects to mention one crucial detail: the threat of the “home-grown violent extremist” is not a worldwide one. In fact, to claim that lone wolves are a “much more immediate threat” that they’re “seeing more frequently” is to offer a supremely narrow-minded, Western-world-only perspective which misrepresents the larger global trends in terrorism. Given that the crimes in question in this case have never been attributed to a particular terrorist organization, it would be fine to discuss the role of the “lone wolf” phenomenon in US-based terrorist attacks — if he would only acknowledge it for the isolated phenomenon that it is. Instead, Dr. Levitt spends such a long time relating “home-grown” attackers to the global jihadism movement, and global jihadism to the Russian-Chechen conflict, and the Russian-Chechen conflict to every other instance of Islamic-based terrorism in the world. This gives the false impression that global jihadists are lurking everywhere, completely undetected, and could strike at any moment.
Instead, let’s look at some terrorism statistics on the global scale. This is easy to do thanks to the Global Terrorism Database, a project of the National Consortium for the Study of Terrorism and Responses to Terrorism (also known as START, affiliated with the University of Maryland). The GTD strives to compile every known instance of terrorism worldwide, from 1974 to the present, to make it easier to study. For this post, I used the GTD to display all recorded terrorist attacks, including ones that were unsuccessful or defused by law enforcement before they were implemented, in the years 2013 and 2014, in two very different countries: Pakistan and the United States. I chose Pakistan because it often ranks among the top countries that see the most terrorist incidents per year, just so I can most easily illustrate the opposite ends of the spectrum.
Here are the results. (You can click on each chart to bring up a larger version.)
As you can see here, in two years, Pakistan saw close to four thousand incidents of terrorism. Note that while not every attack has been attributed to a particular terrorist group, none have been said to be perpetrated by a “global jihadist” or an “individual.” Also notice the number of named groups: from the Taliban, to two groups with Balochistan ties, to a chapter of ISIS, to simple “separatists.” Also, a period of a week saw nineteen terrorist incidents.
In contrast, the United States has an overwhelming number of terrorism incidents attributed to “individual” or so-called homegrown attackers. This is, put simply, because we just don’t have the kind of problems a place like Pakistan does in its political climate. This is also evident in the frequency of said attacks: Pakistan saw 19 attacks in a week; the US saw 20 attacks in about 70 weeks. So when Dr. Levitt says that homegrown extremists are a growing phenomenon, he means it from a Western standpoint only, and neglects to include that this is happening rarely and in lieu of organized terrorist action, which our counterterrorism measures have effectively dismantled (if they ever really existed in the first place, but that’s a discussion for another day).
Of course, this viewpoint would not look very good for a prosecution trying to ride on the coattails of public outrage and fear instead of facts and evidence. No, in order to secure a conviction and death sentence, the crimes would need to look as heinous as possible, coming from an insidious and unfathomable network of global proportions, and in which depraved jihadists could be lurking among our neighbors and school-children, ready to spring into action. Ostensibly, the harshest possible punishments must be administered to these villainous jihadists in order to deter would-be copycats. It’s, I have to admit, a compelling story spun by the prosecution, aided by Dr. Matthew Levitt, the kind that makes you want to go home and hug your kids a little tighter because you can’t bring yourself to contemplate the ugly extent of evil in this world.
It’s just a shame for them that it’s wrong on every possible level.
At this point, perhaps you are asking yourself — and rightly so — that if all of this testimony was so biased and inaccurate, presented by someone who wasn’t an expert in the fields about which he testified, why was it allowed to be presented in court at all? Was the defense team asleep on their feet to allow such skewed and unfounded opinions to be presented as fact? If I could break down Dr. Levitt’s testimony to this degree after the fact, why didn’t Dzhokhar’s lawyers do the same when it mattered?
While it might be easy to lay blame on defense attorneys any time a case in a court of law goes sideways, I have always looked upon Dzhokhar’s defense team with the utmost respect, and I will continue to do so. When I was observing the trial in its penalty phase, I consistently came away with the impression that they were fighting for him with everything they had. They never once seemed apathetic to him, whether in the legal sense or the individual sense. So if you are wondering how such damaging, inaccurate testimony from Dr. Levitt escaped their purview, the answer is that it didn’t. Not even a little. They tried their best to exclude it, and when that didn’t work, to discredit Dr. Levitt with the little time and preparation they were allowed.
But you aren’t going to win a game that is rigged, no matter how hard you try.
403 and the Rules of Discovery
Let’s start at the beginning of Dr. Levitt’s testimony. At the beginning of his direct examination on March 23, defense counsel asked to see the judge at a sidebar conference. At that time, defense attorney David Bruck stated:
I would just like to renew the objection as made in a motion in limine that the Court denied today, and that particularly goes to the background of the various authors and figures, jihadi or radical Islamic figures who are referenced in Dr. Levitt’s report and I gather are about to be referenced in his testimony. And the — and we have a continuing — wish to have a continuing objection to the biographies of those figures and to the people that influenced — there’s a whole back story of each of these individuals on the grounds that there has been and will be no showing that the defendant was aware of any of them… (15-16)
I’d like to break down this initial statement a little, starting with the legal terms and what is meant by them. First, we have evidence that the defense agreed with me in not wanting to allow Dr. Levitt’s testimony: a motion in limine is a specific motion that can be filed at the pretrial or trial phase to request certain testimony be excluded, and a judge always rules on such a request without the jury present. In this instance, Judge O’Toole had already denied this motion, but the defense wanted to renew their objection for the record. In particular, they were concerned with the findings of Dr. Levitt’s report — he did indeed write up a report about his findings on the extremist materials, which, per the rules of discovery, were provided for the defense to look over. The rules of discovery are long and fairly complicated, but it is worth recreating here the stipulations for expert witnesses who provide a written report, as Dr. Levitt did. As compiled by the Legal Information Institute at Cornell Law School:
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
The prosecution did provide much of this information when they began their examination of Dr. Levitt: there is quite a bit of discussion of his educational and professional background, his publications, and when else he or his work was involved in a court case. We also know the defense had access to his report, because Mr. Bruck specifically references it and the figures detailed in it. While we don’t know the explicit content of the report, it stands to reason it goes in depth about the militant personalities who inspired the Islamist and global jihadism movements — hence Mr. Bruck’s statement that “there has been and will be no showing that the defendant was aware of any of them.” He goes on to add:
And even if he was, we think under 403, extraordinary prejudicial effect of essentially putting in the history of Islamic terrorism in the 21st century and burdening this defendant with everything that has gone on since 9/11 and before and after is far — the prejudicial effects far outweighs its probative value. (16)
These statements imply a frustration in the defense that I share. In particular, the extensive history of Islamic terrorism and the rise of the global jihadism movement is widely irrelevant to the case at hand, stated directly by the defense that Dzhokhar had no idea about any of it — harkening back to my previous point about the uselessness of studying the content of one’s potential reading material to determine anything about him. Additionally, they agreed with me that Dr. Levitt’s findings unfairly link Dzhokhar to a global problem of terrorism that far exceeds the crimes in question and would be supremely misleading to the jury. Finally, Mr. Bruck’s mention of 403 refers to Federal Rules of Evidence #403, which states:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
After reading the entire transcript and pointing out how flawed, one-sided, inaccurate or irrelevant most of Dr. Levitt’s testimony was, I would posit that it did all of these things, and shouldn’t have been allowed in at all. So why was it?
This was Judge O’Toole’s response to Mr. Bruck’s objection:
THE COURT: Okay. As I’ve indicated, I think the testimony is admissible. I do think 403 is an important consideration, and I trust the government won’t step too far on this, but it is relevant.
Let me also say for — a different reason for calling you over here, I’ve never been attracted by the idea of declaring an expert to be an expert because it has always been my view that it depends on what he gets asked. So I’ve done it already on a couple of other experts because I just didn’t want to offer the resistance, but this guy may be different so I will not give him blanket qualification. But I suspect within the scope of things in his report, he is qualified to testify as an expert. (16)
I’m confounded by so much in this statement. I don’t know why he would “trust the government won’t step too far on this,” when it’s his job as judge to make sure that they don’t, first of all. I also have a difficult time parsing his second statement. Is he implying that he thinks anyone can be an expert on anything depending on the question, regardless of the relevant background information that is undoubtedly provided about said witness? And why would he admit that he’s declared other people experts because “I just didn’t want to offer the resistance”? Justice isn’t about what’s convenient for everyone. (And in this case, it certainly wasn’t convenient for the defendant!) I suppose based solely on the findings of Dr. Levitt’s report, he could be qualified to talk about certain trends in terrorism propaganda, but as I’ve stated before, there is no scientific basis to imply the content of the propaganda reflects directly on the people who may have read it. If Dr. Levitt’s report somehow has some, it was never brought up in his testimony, and I would love to take a look at it, because it contradicts all the research I’ve conducted.
It’s also interesting to note that this exchange led to a discussion between Judge O’Toole, prosecutor Bill Weinreb, and Mr. Bruck about when it would be appropriate for the defense to object on 403 grounds, since the Court had already deemed the witness’s testimony admissible. Mr. Bruck asks for a standing objection based on 403, which Mr. Weinreb contests, going so far as to snippily add, “The defense may wish that it didn’t have to get up and object to things, but that’s the way trials work so the Court can focus on a particular question”(17). Finally, it was resolved in this fashion:
MR. WEINREB: Well, I understand. So I understand there’s a continuing objection to certain categories of evidence, but if it is the view of the defense that the government has gone beyond what the Court has permitted, then I think it needs to get up and object so the Court can decide if it’s on this side of the line or the far side of the line, especially since many questions may be in a blurry area.
THE COURT: Okay.
MR. BRUCK: Well, it’s going to become unwieldy. And I don’t know what the government intends to do, but his report — Dr. Levitt’s report goes into areas like — there’s al-Maqdisi. He’s a Jordanian jihadi figure — was the mentor to al-Zarqawi, the head of al-Qaeda in Iraq. And of course people will recall the American war to try to — and they were eventually successful in killing al-Zarqawi.
Now, you know, to our way of thinking, that way crosses the line. It’s — that’s the back story. Now, do I — you know, I feel like we should have a continuing objection to things like that.
THE COURT: It’s that kind of evidence. But I think — I guess understanding that I will permit it to some degree, I guess the 403 objection has to be that you think it’s gone beyond the degree to which I will permit it. I don’t know how else to say it.
MR. BRUCK: I would just object. I would like the record to reflect, if it may, when I make a 403 objection, I intend that to include an Eighth Amendment constitutional and due process constitutional objection, this being a death penalty case especially. I mean, I could recite the entire legal litany each time I get to my feet but I would rather just have that be a shorthand for Fifth and Eighth Amendment and 403 when I say “403,” if that satisfies the Court. (18-19)
I sympathize with Mr. Bruck in this instance, as the judge’s instructions seem rather vague about when and how defense counsel would be allowed to make an objection. It’s also interesting to note that despite this discussion, the defense never does use “403” as a shorthand objection after this, and I have a theory as to why.
It’s clear by this sidebar discussion that defense counsel had concerns about the content of Dr. Levitt’s report. However, they had no idea what specific questions the government would be asking their witness — indicated by Mr. Bruck’s above statement “I don’t know what the government intends to do” — which is indeed standard legal procedure. However, once the prosecution goes off the rails, ostensibly going far beyond the scope of Dr. Levitt’s report to discuss the aforementioned issues of psychology, religion and Chechen history, the Court does absolutely nothing to rein it in. This happens despite several attempts by the defense to object.
Here is the first instance, when Dr. Levitt’s testimony veers into discussing ISIS. This terrorist group is certainly infamous in their cruelty overseas and make headlines regularly, but they did not even emerge on the Western world’s radar until mid-2014, when Dzhokhar had already been in custody for over a year. Dr. Levitt begins about the warped concept of jihad among those within the global jihadism movement:
We discussed earlier this personal obligation, right? You can’t shirk this responsibility. If you still are intent on living amongst unbelievers, then at least you’ve got to do what you’ve got to do: terrorist attacks at home. They welcome you to come and fight somewhere else too. And this is not only al-Qaeda; now the so-called Islamic state or ISIS —
MR. BRUCK: I’d object to bringing in organizations that have nothing to do with —
THE COURT: As a general background I think it’s all right. Go ahead. (34)
See how defense counsel attempts to object, also citing my own concern, that the incorporation of ISIS is completely unrelated to the crimes in question, but the Court swiftly interrupts and allows it anyway. The prosecution is allowed to continue with this:
Q. You were talking about ISIS. That we’ve all heard of, ISIS. How does that relate to the global jihad movement?
A. ISIS is the latest incarnation of this global jihad movement, a group that in the region in the Middle East is fighting with al-Qaeda and yet it won’t be uncommon to see people who have a primary affiliation with al-Qaeda and people who have a primary affiliation with ISIS somewhere in diaspora doing something together as we’ve seen in just the past few weeks, in one instance. ISIS, like al-Qaeda, has glossy magazines, and even better than al-Qaeda very impressive online radical and radicalization literature. And it too explicitly says: Come. But if you don’t come — you don’t have to come — just do something back home. (34-35)
I quote the rest of Dr. Levitt’s explanation to show what inaccurate and prejudicial information was allowed through. Once again Dr. Levitt is conflating the ideologically-based global jihadism with a group with more nationalistic goals. While ISIS is certainly vicious — to the point where other groups like al-Qaeda have publicly denounced them — and it does attempt to recruit from the West using social media propaganda (although with debatable results), it has very specific and immediate goals in the Middle East. Perhaps officially they like taunting loftier aspirations for eventual world-wide domination, but at the moment that looks more like a propaganda tool to recruit Westerners while they’re still struggling to govern their conquered territories in Iraq and Syria than any real mission statement. So perhaps one can argue that a group like ISIS uses the social movement of global jihadism to their strategic advantage, but claiming that they themselves are global jihadists is stretching it. (ISIS was also very much enabled in the region by US intervention, a fact Dr. Levitt neglected to mention, even though President Obama stated as such only a week before his testimony.)
This kind of objection comes again and is disregarded by the judge when the prosecution brings up Syria, another conflict that did not come into the public’s consciousness until after well Dzhokhar had already been apprehended:
Q. Moving on to Syria, what’s the role of the Syrian conflict in this global jihadi movement?
A. Can’t be overstated. We just marked four years since the beginning of what, when it started, was a rebellion against the rule of Bashar al-Assad. But as has been the case in Chechnya and other place, jihadis use this opportunity to take a rebellion and make it a jihad of their own, and it has become a rallying cry around the world. We talked earlier about the different types of radicalization.
MR. BRUCK: I’m going to object to the whole discussion of Syria that goes beyond the date of any of the events alleged in the indictment.
THE COURT: Overruled. (54-55)
And again later when the prosecution enters audio clips from the sermons of Anwar al-Awlaki into evidence:
MR. CHAKRAVARTY: Your Honor, I would ask to publish 1405A as a chalk while we play three short audio clips.
MR. BRUCK: I’d like to note our previously made objection.
THE COURT: All right. Subject to that, they’ll be played. (72)
The Court gave the defense no ground to stand on, instead allowing the prosecution to question Dr. Levitt on all manner of topics that not only had no bearing on the case at hand, but issues and fields he had no qualification to give informed opinions about. The prosecution’s bold lines of questioning plus the judge’s uncaring lack of regulation turned into a lethal combination for the defense, whom, I must imagine — based on personal observation later on when the same thing kept happening — were reduced to sitting there and giving each other outraged looks while the spectacle played out in all of its preposterous glory.
The Daubert Issue
However, perhaps the most enlightening moment in the transcript comes quite early in the testimony, and explains so much not just about the whole of Dr. Levitt’s statements, but how the government was able to get away with showcasing a ridiculously unqualified witness under the eye of a lax judge. It happens when Mr. Chakravarty asks about the radicalization process:
Q. Is there a way to measure how radicalized somebody is?
A. Lots of people have tried. The simple answer is: Until someone actually acts, there’s complete room for debate, all right? There’s no quantifiable, this is a 3.2 radicalization.
MR. BRUCK: Your Honor, if you’d please, I’m going to object to any further testimony along this line without a showing of any scientific basis for measuring how radical someone is whether they have acted or not. This is a Daubert issue. We did not have notice of this.
MR. CHAKRAVARTY: I can move on, your Honor, but it’s a simple, you know, general question.
THE COURT: All right. (41, emphasis mine)
You may remember this general bit of questioning from my last post, when I was working off of media accounts, not the transcript. While my previous critique about the lack of scientific foundation of this assessment still stands, the transcript reveals something quite enlightening at this moment in the direct examination. Defense counsel apparently had the same objections I did, but added something crucial to my understanding of what was going on: “This is a Daubert issue.”
Immediately I asked myself: what is this Daubert issue?
You may remember, also from my previous post, that I took issue with the courtroom procedure that allowed the prosecution to present arbitrary evidence as proof of Dzhokhar’s radicalization when there is no legal standard used to measure radicalization. When I looked into this “Daubert issue,” I was pleasantly surprised: it turns out that there is something in federal law called the Daubert Standard. While it does not speak specifically to how one might measure evidence of radicalization in a terrorism case, it absolutely speaks to how one measures whether expert witness testimony of a scientific nature is admissible in court. When Dzhokhar’s defense team said Dr. Levitt’s take on radicalization is a Daubert issue, it means they had the same problems with it I did.
The Daubert Standard is often referred to as the Daubert Trilogy, because three Supreme Court cases laid out the rules for it, and they define, in no uncertain terms, the standards expert scientific testimony has to meet in order to be admissible. This includes:
Relevance and reliability: This requires the trial judge to ensure that the expert’s testimony is “relevant to the task at hand” and that it rests “on a reliable foundation”. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 584-587. Concerns about expert testimony cannot be simply referred to the jury as a question of weight. Furthermore, the admissibility of expert testimony is governed by Rule 104(a), not Rule 104(b); thus, the Judge must find it more likely than not that the expert’s methods are reliable and reliably applied to the facts at hand.
Scientific knowledge = scientific method/methodology: A conclusion will qualify as scientific knowledge if the proponent can demonstrate that it is the product of sound “scientific methodology” derived from the scientific method.
Factors relevant: The Court defined “scientific methodology” as the process of formulating hypotheses and then conducting experiments to prove or falsify the hypothesis, and provided a nondispositive, nonexclusive, “flexible” set of “general observations” (i.e. not a “test”) that it considered relevant for establishing the “validity” of scientific testimony:
Empirical testing: whether the theory or technique is falsifiable, refutable, and/or testable. (1) Whether it has been subjected to peer review and publication. (2) The known or potential error rate. (3) The existence and maintenance of standards and controls concerning its operation. (4) The degree to which the theory and technique is generally accepted by a relevant scientific community.
In short, there are stringent standards that have to be applied to an expert witness’s scientific findings: it must correlate directly to the case being tried and must be based on facts, it must be tested and found reliable by the scientific method, and proven by empirical testing that it is a tried, true and accepted method by “a relevant scientific community.”
Although there is currently no legal radicalization standard, I can say without a shadow of a doubt that Dr. Levitt’s explanation of radicalization does not pass the Daubert Standard in any way, shape, or form. He quoted no studies, empirical evidence, or case studies in his testimony, and could demonstrate in no way that his theory of radicalization lived up to any kind of scientific method. He’s not even a scientist himself, nor is he involved in the development of this method of measuring radicalization, which means quite bluntly he shouldn’t have been allowed to present it at all. This accounts for Mr. Bruck’s firm objection — and, by the sound of his following statement (“We did not have notice of this”), it’s possible the defense team had no idea the prosecution intended to present anything about the radicalization process at all, let alone all the subsequent topics Dr. Levitt testified about that he had no qualifications for.
But once again, why was this allowed? Unfortunately, the remaining clause of the Daubert Standard is this:
Judge is gatekeeper: Under Rule 702, the task of “gatekeeping”, or assuring that scientific expert testimony truly proceeds from “scientific knowledge”, rests on the trial judge.
This means it is entirely up to the discretion of the trial judge whether scientific testimony passes the Daubert Standard.
I’ve been struggling with this one for weeks, I admit. I’ve been bending my mind this way and that, trying to figure out how the Court in this case could think any of the testimony I’ve laid out before you was appropriate in any manner. The radicalization argument clearly does not pass the Daubert standard, and my own research shows actual psychological studies into radicalization don’t support Dr. Levitt’s theory as being “generally accepted by a relevant scientific community.” Nor can I understand how the Court thought the inclusion of information about ISIS and the Syrian conflict was in any way relevant to the facts at hand, when neither ISIS nor the Syrian conflict even emerged as foreign policy concerns until well after Dzhokhar’s apprehension for crimes that have never been attributed to either in any way. And finally, I definitely can’t understand how the Court might have thought Dr. Levitt was qualified to speak about matters of psychology, sociology, religion or history in the North Caucasus, given his established educational and professional background. I can only come to the uneasy conclusion that the judge abused his discretion, which alone is grounds for appeal.
The Defense’s Last Ditch Effort
What I can understand, however, is why defense counsel did not refute Dr. Levitt’s testimony as well as I have here. What might look like negligence is actually evidence of a far more widespread problem in this case, and it can be summed up by a single sentence: “We did not have notice of this.”
If Dr. Levitt’s report did come to them the way it likely had — with, as discussed in the sidebar conference, the history of the figures detailed in the extremist propaganda, but without coverage of the larger topics, like Islam, Chechnya, the global jihadism movement, the Syrian conflict, ISIS, and the radicalization “method” — they would not have known the government planned to delve into all of them with one unqualified witness, and therefore had no way to properly prepare a rebuttal. To me, it makes perfect sense: how could they possibly know Dr. Levitt would be used as the cornerstone of the government’s entire case against Dzhokhar? And when it started to happen, any attempts they made to curb this were overruled by the Court. This left the defense in a terrible position: with essentially only an evening to come up with a counterpoint, as Dr. Levitt’s testimony spilled from March 23rd to 24th. (In fact, he was meant to fly to Berlin that night and had to reschedule in order to return.) Yes, it is easy for me to pick the testimony apart after the fact, but I confess have been compiling this post for weeks. Being able to do anything at all to counter the trainwreck that became Dr. Levitt’s testimony in an evening would require some sort of divine intervention. I have never-ending respect and admiration for the defense team, but they are only human.
They did try their best. They scraped together everything they could. They attacked the fact that Dr. Levitt only studied a select few files from Dzhokhar’s computer; they brought up that the materials had been dumped there by Tamerlan, not compiled by Dzhokhar; they pointed out that Dr. Levitt had tweeted about his testimony at the end of the previous day (for this I imagine a sleep-deprived legal assistant coming to Judy Clarke in the eleventh hour, frantically waving a smart phone and asking, “Can we use this?” but that’s why I’m a novelist at heart). They even addressed the high price tag that accompanies Dr. Levitt’s expertise on these matters:
Q. You described yourself yesterday as a hired expert?
A. I don’t know if I did but I have been hired, yes.
Q. Okay. And at what rate?
A. $450 an hour.
Q. Okay. Do you know how many hours you’ve put in?
A. Total, no, but — and I bill in stages, so. But I imagine that, you know, yesterday and today will end up being probably about somewhere around 20 hours. Traveling here Sunday, yesterday, today traveling.
Q. Okay. But the 450 hours [sic] was for all of the work you did on the case, not only the two days that you’ve been in court?
A. Correct. It will be several thousand dollars. (30-31)
Clearly, this part must have been prepared beforehand, probably from the same information included in the report the prosecution had turned over. But I suspect the defense knew the hours Dr. Levitt spent testifying when he shouldn’t have, about topics he shouldn’t have, were beyond what they had time, permission, and perhaps money to do anything about. Mr. Bruck tries his best to highlight the issues I’ve discussed, but the attempt is truncated, and without the availability of their own expert, there isn’t a whole lot he can do:
Q. And I take it you’re not an expert in the history of Russia or Chechnya or Dagestan, the North Caucasus, correct?
A. I’ve done a lot of work on the Chechen conflict as it relates to international jihad, but I’m not an expert in Russia or its history, no.
Q. Or in the culture and history of the North Caucasus except to the extent that it relates to your field of terrorism, correct?
Q. And you’ve already told us that you’re not an expert on Islam?
A. Correct. I have studied Islam and I have studied a lot about it, it’s necessary for the work that I do, but I certainly don’t consider myself an expert on religion, or Islam in particular. (11)
At this point, I can’t imagine this did much to knock the prior information out of the jurors’ heads. The defense’s best bet would have been to bring in someone else to disagree with Dr. Levitt’s opinions. And they did, actually. However, their expert on the North Caucasus and Islam, Dr. Michael Reynolds from Princeton University, did not appear until the penalty phase, a good five weeks later. By then, Dzhokhar had already been convicted on every count, and I had shown up in person to witness the bitter end. Even so, I’ve thought about why they waited so long to call Dr. Reynolds. It could have happened for a variety of reasons: perhaps it took that long to call him because they had not anticipated the government’s actions in regards to Dr. Levitt. Perhaps it was because Dr. Reynolds had a lot to say about the evidence that separated Dzhokhar and Tamerlan, the defense was afraid he would not be as effective in the guilt phase, when they were banned from bringing up Tamerlan’s influence.
The bottom line is this: Dr. Levitt’s testimony should not have been deemed admissible based on several grounds, including the Daubert Standard, and he was woefully unqualified to testify on areas outside of his expertise, which he did extensively and with no regulation from Judge O’Toole. This happened despite repeated objections from the defense. In addition, the prosecution’s use of Dr. Levitt at all is highly questionable, as I suspect if they had actually called in experts on Islam and the North Caucasus, a very different picture would have been painted for the jury. That and the implication that they did not inform the defense that they intended to use Dr. Levitt this way hints at prosecutorial misconduct and violation of the rules of discovery, because it prevented the defense from adequately preparing a counterpoint to his assertions with their own experts. And, as I hope you’ve been able to take away from this post, Dr. Levitt’s opinions are hardly wholly representative on just about every topic he covered. His entire testimony was highly prejudicial, giving jurors an unfounded, unfair view of a variety of issues central to the matter of Dzhokhar Tsarnaev’s guilt or innocence.
That is simply not how justice is supposed to work.
Aslan, Reza. No god But God: The Origins, Evolution, and Future of Islam. New York: Random House, 2006.
Global Terrorism Database. University of Maryland. Web. 17 Oct. 2015.
LII / Legal Information Institute. Cornell University Law School. Web. 17 Oct. 2015.
Laub, Zachary. “Background Briefing: Why is Russia’s North Caucasus Region So Unstable?” PBS.org. 7 Feb. 2014.
“Migrants and Refugees.” Last Week Tonight With John Oliver. HBO. 28 Sept. 2015.
Silber, Mitchell D. and Arvin Bhatt. “Radicalization in the West: The Homegrown Threat.” The New York City Police Department, 2007.
United States v. Dzhokhar A. Tsarnaev. No. 13-10200-GAO. “Testimony of Matthew Levitt, PhD.” 23-24 March 2015. Transcript.