“I’m saying it again, those Dukas, they didn’t tell me nothing,” he said in a recent phone call with The Intercept. When asked how the FBI responded to his view of the Dukas, Omar replied: “They said it was none of my business. I just wear the wire and record.”
As Omar struggled to link the Duka brothers to the plot he’d developed with Shnewer, the FBI decided to introduce another informant into the case.
Besnik Bakalli, a 29-year-old undocumented immigrant from Albania, was sitting in a Philadelphia jail awaiting deportation when the FBI approached him about becoming an informant. Agents showed him pictures of the Duka brothers and told him to meet them at a Dunkin’ Donuts in Cherry Hill, where the Dukas often went after Friday prayers at the nearby Palmyra mosque.
When the Dukas walked into the Dunkin’ Donuts on a Friday in July 2006, Besnik was talking on the phone loudly in Albanian. The naturally gregarious Dukas overheard him and introduced themselves, ultimately befriending the informant. The FBI’s plan to quietly integrate their second informant into the lives of the Duka brothers was unfolding successfully.
Over the course of the next ten months, Bakalli saw the Duka family often. Over dinner with the brothers, Lata and Firik, he portrayed himself as a down-on-his-luck fellow Albanian, recently divorced and in dire emotional and financial straits. “He told us a former friend of his tried to rape his sister,” Shain says. “He got out of prison, heard the news, and got in an altercation, which killed this individual. After this, he said his life was in jeopardy. He came to America illegally and now is in a foreign land, alone and homesick. This was Besnik’s story to the family.”
The family took pity on Bakalli and took him in as one of their own. Firik Duka, whose roofing business continued to grow, hired him to work a few shifts at job sites around New Jersey and Philadelphia. Lata even tried to help Bakalli find a wife with whom to settle down.
Bakalli told the Dukas that he wanted to become a better Muslim, and the brothers agreed to help him. “This is when all the questions began to roll in,” Shain says. “What is jihad? Do we have to perform jihad? Me and my brothers did not take these questions as out of the ordinary. At that time all you heard on TV was jihad, terrorism, Islam this, Islam that. We thought he was just new and trying to understand, no red flags were raised!”
As they had both penetrated the same group of friends, Omar and Bakalli occasionally bumped into one another. Neither knew the other was an informant. “I hated the guy — didn’t like the look of him at all,” Omar told The Intercept.
The boys trusted Omar and Bakalli. Omar bonded with the Dukas over cars, a topic the brothers obsessed over. Surveillance transcripts reveal conversations with both informants that ranged from food to family to work.
World events, particularly those that affected Muslims, also came up. The men often discussed their opposition to U.S. involvement in the wars in Iraq and Afghanistan, then at their peak. They talked about the perceived targeting of Muslim-Americans by law enforcement and debated what role, if any, Muslims living in the U.S. had in assisting other Muslims resisting American aggression. They often couched their discussions of these topics in religious terms.
Shnewer and Omar spent much of their time together watching jihadi videos and listening to radical lectures on tape, often playing them in the Dukas’ presence. The Dukas also watched these videos, sometimes responding positively. Tony got particularly riled up by a lecture called Constants of the Path of Jihad by Anwar el-Awlaki, a Yemeni-American who would later be killed in a U.S. drone attack. He played the audio for his brothers and Bakalli, and in what would later be characterized as evidence of his radical beliefs, was recorded saying, “This is the real truth, straight up, no holds barred!”
Yet the brothers never talked about an actual plan to commit an act of terrorism. Discussing the various forms of jihad, Eljvir asserted, on questioning from Bakalli, that the daily struggle against personal vices like greed and lust is the greatest form of jihad.
In a conversation on September 22, 2006, Omar told Eljvir that he and Shnewer had been working on a “plan,” without providing specific details. Eljvir told them they should seek out a fatwa, or an Islamic legal opinion. While the prosecution would attempt to frame this comment as Eljvir seeking religious authorization for the Fort Dix plot, Omar undermined this claim at trial, conceding under cross-examination that Eljvir was unaware of plans pertaining to Fort Dix.
In other conversations, Bakalli continually pressed the Dukas to “do something,” and shamed them for not taking some kind of action to defend Muslims. During one heated conversation with Bakalli, Tony was recorded saying that he was “going to start something,” and that “you can do a lot of damage, man, seven people.” This statement would later be held as a damning self-indictment of the brothers’ intentions, but again, it never translated into real follow-up action or planning.
Despite their best efforts, Omar’s and Bakalli’s attempts to get the Dukas to put radical ideas into action didn’t gain traction. A month after Tony’s angry statements, Bakalli tried to get him to firm up plans to “do something.” At this point, Tony essentially recanted his incendiary words:
“We can’t … we … the biggest Jihad for us here in America is to spread Islam … That’s the most important thing. That is war, believe me. That is Jihad. Jihad is not just, like we say, to go fight. No people misunderstand it. … The first Jihad is with yourself, when the devil tells you, do this, you try, you fight with the devil. No, no, no. I won’t do it. Then the second Jihad is with your family. To work. To teach Islam to your children. Then you should spread Islam in, to tell others, this is Islam.”
Bakalli pressed, but Tony held firm. “Our biggest obligation for us is our family, especially for me with children,” he said.
In early 2007, the Dukas were joined by Bakalli, Shnewer and Omar on another “boys weekend” in the Poconos. The informants were promised horseback riding, hikes in the woods, “an epic game of paintball” and a shooting range. While playing paintball with Tony, Omar likened the game to military training. “This is like an army exactly,” he said, according to court testimony.
This second Poconos weekend, now infiltrated by two government informants, came and went without any discussion of a plot against military personnel. Instead, the brothers and their friends mostly spent hours watching videos of Eddie Murphy and Dave Chappelle stand-up comedy, in between horse riding and paint-balling.
At this point, roughly a year into the case, despite hundreds of hours of surveillance and the employment of two paid informants, the Dukas still had not been induced to commit any criminal act. The stakes were raised and an illegal gun deal was set up.
The Dukas loved guns; their Albanian heritage extolled firearms as a virtue of masculinity. “In Albania everybody has a gun in the house,” says Firik. “It’s normal for any man to have one there.”
Omar knew about the brothers’ enthusiasm, and he also knew that without proper immigration documents they couldn’t legally buy firearms in the U.S. It was a sore spot for the Duka brothers, all of whom had tried to apply or were in the process of applying for asylum status. In the Poconos, unlike other visitors who owned personal firearms, the Dukas had to wait in line for rentals at the shooting range.
In March 2007, Omar approached Tony with an offer: a friend in Baltimore with a gun shop was looking to make some under-the-counter sales of guns valued at the discounted price of $500 apiece. This offer was too good to pass up, and after being assured that this guy was “legit,” Tony agreed to take look at what Omar’s friend had in stock.
The boys knew the transaction wouldn’t be legal. “Being an illegal alien did prevent us from purchasing our own guns legally,” Shain says. “At the time, me and my family were in the immigration process. We even hired a lawyer, and we were going to do papers properly when that was done. We always believed that these guns could be transferred legally to my name once we received our papers.”
In a separate conversation that same month, Omar spoke with Shnewer without the Dukas present.
Mahmoud Omar: By the way, I want to ask you a question, I want you to tell me seriously. Eljvir and Tony, do they know, for example why we’re getting the handguns or … ?
Mohamad Shnewer: Yeah, of course.
Mahmoud Omar: Don’t tell me you didn’t tell them, Mohamad.
Mohamad Shnewer: Yeah, they know.
Mahmoud Omar: That we, for example, are training in anticipation for something like this in the future?
Mohamad Shnewer: Yeah!
On March 28, 2007, Omar provided Tony with a list of available weapons from his fictional Baltimore source. This list had in fact been created by the FBI. Inexplicably, in addition to AK-47s, handguns and M16 rifles, it also included heavy weapons like a rocket-propelled grenade launcher — used to destroy tanks and other armored vehicles — as well as an M-60 machine gun. Burim, who was 15 at the time, remembers Tony coming home and wondering how Omar’s guy could be “legit” if he was selling RPGs and M-60s, which are heavily regulated in the United States.
On April 6, 2007, Tony went back to Omar and told him that he was interested in the AK-47s, the M-16s and the handguns, but not the heavy weapons. In a recorded conversation, he expressed concerns:
Tony Duka: Is there something I need to know?
Mahmoud Omar: Like what?
Tony Duka: Who … that list, there was some stuff on that list that was heavy shit … the RPG …. Yeah, with rockets. That’s why if you know something I don’t know, ah, please tell me man.
Omar assured Tony that his friend in Baltimore was trustworthy.
On May 7, 2007, Tony and Shain met Omar at his apartment, which had been paid for that month by the FBI. As the brothers inspected the firearms they planned to purchase, audio recordings reveal Tony commenting, “Now we don’t have to wait in line to shoot in Poconos.”
Minutes later, police burst into the apartment and wrestled Tony, Shain and Omar to the floor. “I had no idea what was going on when it happened,” Shain wrote from prison. “I assumed we were being arrested because of the guns, which I knew we were buying from Mahmoud illegally.”
The men were put into police cars and eventually taken away to a Philadelphia detention center.
While Shain and Tony were being arrested at Omar’s apartment, Burim and Eljvir were driving home after taking Tony’s five kids to a Mister Softee for ice cream. As they pulled up to Tony’s apartment, they noticed police cruisers and SWAT vans surrounding the building. Burim got out of the car to ask an agent what was going on, and both he and his brother were handcuffed.
Eljvir was transferred to the same detention center as Shain and Tony. The teenage Burim was not arrested, but left handcuffed under a tree while officers searched Tony’s apartment. Burim recalls an armed agent telling him, “Don’t grow up to be like your brothers.” He later added, “You should think about finding yourself a new religion.”
Tony, Shain and Eljvir spent the night wondering how they were going to get out of what they assumed would be gun charges.
The next morning, the brothers, along with Tatar and Shnewer, who had been seized in separate raids, were driven in a black-tinted police van past throngs of reporters and cameramen to the federal courthouse in Camden, New Jersey.
Inside, they were presented with a criminal complaint accusing them of conspiracy to murder U.S. military personnel. “I was confused at first, but for the most part I breathed easy when I saw that,” Shain says. “I figured they mixed us up with someone else and we’d be out of here as soon as we cleared things up.”
As Shain remembers, the boys were taken to a holding cell and instructed to read through the complaint in its entirety. Shain read aloud to the group. The complaint consisted almost entirely of Mohamad Shnewer’s private conversations with Mahmoud Omar. “After reading it we all turned to Shnewer,” Shain says. “Is this really true!? You went to a military base, you said this and that!? Who the hell is Confidential Witness #1?! Mahmoud Omar was an informant? Unbelievable! We were all pissed at Shnewer.”
It became clear to the brothers that Shnewer, in his conversations with Omar, had committed them to taking part in a “plot” to attack Fort Dix without their knowledge.
The five men were charged with conspiracy to attack military personnel, as well as with weapons offenses for the guns they had attempted to purchase from Mahmoud Omar.
At a press conference announcing the indictments, U.S. Attorney Chris Christie praised law enforcement for stopping an impending threat, painting a dark portrait of the alleged plotters. “Believe me, too,” he said. “These people were ready for martyrdom. They spoke about martyrdom extensively in the tapes. They said they were to do this in the service of Allah.”
The Dukas were arrested in the spring of 2007, but not brought to court until the fall of 2008. In the interim, the brothers were held in pretrial solitary confinement at the Philadelphia Federal Detention Center. “The prison guards would ransack our cells and throw our Quran on the floor, but leave the rest of stuff alone,” Shain recalls. “We quickly realized that they were actually being serious about this.”
In opening arguments for the trial, presented in October 2008, the prosecutors’ case relied heavily on the two key informants. Omar was eventually paid $238,000 for his efforts, while Bakalli, who earned a minimum of $1,500 a week for his involvement, seems to have received additional benefits. He was facing deportation to Albania, where he had been involved in a shooting, and testified that in exchange for his cooperation with the FBI, he was allowed to remain in the U.S. The Albanian government also pardoned him.
Before proceedings commenced, New Jersey District Judge Robert B. Kugler granted a motion by prosecutors to keep the names of the jury anonymous, agreeing with the government that the trial represented an exceptional case requiring protection of the jurors’ identities.
At trial, Assistant U.S. Attorney William Fitzpatrick argued that the Duka brothers had been inspired by jihadist ideology. “Their motive was to defend Islam,” he told the jury. “Their inspiration was al Qaeda and Osama bin Laden. Their intent was to attack the U.S.”
The government set out to prove that between January 2006 and May 2007, each of the Duka brothers had entered into a conspiracy to murder members of the U.S. military. Prosecutors wouldn’t necessarily find a formal, written or oral agreement spelling out the details of the understanding. They just needed to demonstrate, based on the brothers’ “state of mind,” that the Dukas had knowingly and willfully entered into an agreement, and that at least one of the brothers had performed an overt act to further the agreement.
As was written in the jury instructions:
“Often the state of mind with which a person acts at any given time cannot be proved directly, because one cannot read another person’s mind and tell what he or she is thinking. However a defendant’s state of mind can be proved indirectly from the surrounding circumstances. Thus, to determine a particular defendant’s state of mind at a particular time, you may consider evidence about what the defendant said, what he did and failed to do, how he acted, and all the other facts and circumstances shown by the evidence that may prove what was in that defendant’s mind at that time.”
Since the Dukas were never recorded agreeing to take part in Shnewer’s and Omar’s plot to attack Fort Dix, the government had to prove they were still involved in other, more indirect ways.
For example, the court allowed into evidence the recording of Tony Duka saying he was “going to start something.” In future recordings, he seemed to repudiate this statement, saying, “the biggest Jihad for us here in America is to spread Islam.” But, as mere hearsay, the judge did not allow this statement or others to be presented to the jury unless the defendants were allowed to be cross-examined, meaning Tony would have had to give up his right not to testify. Even though the brothers wanted to take the stand, their lawyers urged them not to do so.
Prosecutors for previous U.S. terrorism cases have sought to establish participation in a conspiracy by displaying videos or websites found on a defendant’s computer that show frightening Islamist propaganda. Mahmoud Omar, during the time he spent with the Dukas’ co-defendant Mohamad Shnewer, asked Shnewer to download many of these videos, which the Dukas sometimes also watched. The prosecution played these videos to the court over the course of several days.
Shain described one juror’s reaction to a lengthy video pulled from Shnewer’s computer of U.S. soldiers being killed in battle by insurgent snipers: “Juror No. 3 got up from her seat before exiting for the break, gave us all a stare of death, turned around and slammed the binder of transcripts.” Juror No. 3, whose name remained concealed, would later tell the Philadelphia Inquirer that it was difficult for her to watch the video because her own son was a marine who had served two tours of duty in Iraq. “I thought I was seeing my son getting hit,” she told the paper.
The prosecutors claimed these videos, along with the Anwar al-Awlaki tapes, which the Duka brothers listened to in the presence of government informant Mahmoud Omar, served as inspiration and guidance for the Fort Dix operation.
To demonstrate this connection, the prosecution called Evan Kohlmann to the stand as an expert witness on Islamic terrorism and the use of digital media to promote terrorism. Kohlmann, who in 2014 was featured in a Human Rights Watch report on dubious terrorism prosecutions, testified that the defendants had been watching “some of al Qaeda’s best work,” and that their consumption of the videos suggested “a clear, considered, and present danger to the community.”
Yet Kohlmann’s analysis has come under considerable scrutiny in recent years. Fawaz Gerges, a professor of international relations at the London School of Economics, told New York magazine, which profiled the self-styled terrorism expert, that Kohlmann was in the “guilty verdict industry.” In an email to The Intercept, Gerges explained that prosecutors consider Kohlmann a “hired hand,” willing to say “whatever it takes” in front of a jury to help secure convictions.
During his testimony, Kohlmann portrayed the acquisition of guns from Mahmoud Omar, in addition to the heated statements the Dukas made about American foreign policy, as evidence of jihadist activity. As for the dearth of evidence substantiating an actual plot, Kohlmann told the jury, “It doesn’t take a lot of sophistication to kill people. Ultimately, it comes down to intent.”
On December 22, 2008, after six days of deliberation, the jury found the Duka brothers and their two friends guilty of conspiracy to kill members of the U.S. military at Fort Dix.
In determining sentences for federal crimes, judges take into account as a starting point the guidelines issued by the U.S. Sentencing Commission. The guidelines have “adjustments” that can be enacted at the judge’s discretion, which can fundamentally change the duration of a sentence. Among these, the terrorism adjustment has the most drastic effect of lengthening sentences.
The Dukas had been found guilty of one count of conspiracy to commit murder and three counts of illegal firearm possession. On those charges alone, they might have faced sentences of up to 24.5 years. But the prosecution requested that Judge Kugler apply the terrorism adjustment, which would dramatically increase that time.
On January 26, 2009, Judge Kugler received a handwritten letter from Mohamad Shnewer, who was awaiting sentencing in solitary confinement at the Philadelphia Federal Detention Center. In his letter, Shnewer described “boastful” discussions with the government informant and confessed to making “lies and allegations” about the Duka brothers’ knowledge of the Fort Dix plot. They were “clueless” about this plan, he wrote.
In April 2009, the Dukas, Tatar and Shnewer were brought before Judge Kugler for sentencing. Shain stood before the court and spoke out against the verdict. “A lot of money has been spent. Millions have been spent on this case. As if money has brought the truth of the matter,” Shain said. “We have stressed over and over again that they’ll lock you up for nothing, they’ll build a case on you. Today we have become victims of what we stressed so very often.”
Delivering Shain’s sentence, the culmination of a terrorism case that had lasted over two years, Judge Kugler said, “It’s not my place or desire at this time to review all the evidence … Suffice to say this defendant was in the middle of this plot. I’m realistic, I remember that they weren’t being taped 24 hours a day seven days a week.”
Brushing off the lack of direct evidence, Kugler added: “That there isn’t more explicit evidence does not concern me and obviously didn’t concern the jury either … I cannot deter this defendant, because of his belief system, from further crimes.”
Shain and Tony were sentenced to life in prison, plus 30 years. Eljvir, who was not convicted of the firearms offenses, received life in prison.
In a public statement made after the Dukas’ sentencing, acting U.S. Attorney Ralph Marra said, “The hatred and contempt these young men hold for America and the rule of law was made abundantly clear.” The life sentences were appropriate, he argued, to “protect the public from them and their deeply held, radical beliefs.”
since the convictions, the lives of the Dukas and Chris Christie, the U.S. attorney who prosecuted the brothers’ case, have taken vastly different trajectories. Christie won his race for governor, and is now a likely contender for the Republican presidential nomination.
Christie often cited the Duka case as a highlight of his career. In a 2012 speech to the American-Israel Public Affairs Committee (AIPAC), Christie recalled his success in the “uncovering of a plot to kill American servicemen and women,” telling a packed audience at the New York Hilton Hotel that he helped send to prison a group of “Muslim men practicing with semi-automatic weapons and screaming about jihad against the infidels.” Today, both the Republican Governors Association and the New Jersey Republican Party list the Fort Dix case as “one of Christie’s finest moments” under his biography.
Meanwhile, the Duka family is struggling. Tony’s five children are growing up without a father. Lata and Firik are faced with raising their grandchildren on their own. Burim, the youngest Duka brother, now 24, and the only one to escape entanglement in the case, dropped out of school to become the family’s primary breadwinner. The Dukas believe they have remained under surveillance. Firik says the FBI once came to the house and threatened to take Burim away. “We lost so much, and today we are barely surviving,” he says. “We live with broken hearts.”
While Shain is imprisoned at a high-security facility in Kentucky, Tony and Eljvir are being held at the infamous ADX Supermax prison in Florence, Colorado, which houses some of the nation’s most dangerous criminals and has famously been described as “a clean version of hell.” Tony and Eljvir have both spent portions of their sentences in solitary confinement, and Eljvir remains in isolation. Despite being locked up in the same prison for years, the two have never seen one another. Without the terrorism adjustment, they might have been released as middle-aged men. With it, they will likely die in prison.
Having exhausted all appeals, the brothers are filing a 2255, or writ of habeas corpus, which is a motion to set aside a sentence on the grounds that it was imposed in violation of federal law. Their appeal hinges on the argument of ineffective performance by their public defenders, but such appeals are rarely successful.
Far away from home, Shain, Tony and Eljvir’s periodic phone calls across the country are their only remaining link with their families. They say they find strength in God and knowledge of their innocence. Eljvir ends every call home with, “God willing, we will be reunited soon, not only in the next life, but this one too.”
Years later, the brothers still look back with incredulity at the events that led to their present situation. The needy friends exposed as government informants, the high-profile arrests and terrorism charges, and finally the life sentences that permanently altered the course of their lives. “We had plans for the future, we were expanding our business just weeks before, our families were growing,” Shain says. “Now, suddenly, we have been buried alive.”
More than seven years after the trial, the person who was arguably the most critical in securing the convictions still agonizes over his role in the case. In a recent interview with The Intercept, Mahmoud Omar, the informant, maintains that while Mohamad Shnewer was involved in the Fort Dix plot, the Dukas, whom he describes as “good people,” were innocent.
“I still don’t know why the Dukas are in jail,” he says.
Sheelagh McNeill contributed research to this report.
Photo Illustration: Connie Yu; Fort Dix: Mel Evans/AP
