Eighteen months ago, a Texas Department of Public Safety trooper making a routine traffic stop of two men driving on a highway northeast of Houston noticed both were chewing on a wad of green leaves. His subsequent search of the car launched a yearlong investigation involving local, state and national law enforcement agencies that has so far resulted in more than a half-dozen arrests in the Houston area.
In response, Muslim civil rights groups are questioning whether the Austin-based state agency has crossed a line by unfairly portraying the defendants as terrorists.
The oval-shaped leaves were khat, according to police reports, a plant grown and used primarily by residents of countries in or around the Horn of Africa, particularly Somalia, Ethiopia and Yemen. It is used there openly and socially, mostly chewed or made into tea.
Although the chemicals in the plant are illegal in the United States, drug officials said prosecutions here are uncommon. In reports and court filings, however, the DPS, which is leading the investigation, has suggested the current operation is of high importance because proceeds from khat sales have been linked to terrorist groups.
“Texas is a regional center for the trafficking of the illegal drug known as khat, a chewable narcotic plant grown in the Horn of Africa whose sale abroad is suspected to benefit Africa-based terrorist organizations such as al-Shabaab,” the agency’s Public Safety Threat Overview 2013 declared.
There is wide disagreement over how strong the link is, however, or even if there is one at all.
The DPS threat assessment claim is based in part on congressional testimony given more than a decade ago by a then-FBI assistant director, who briefly mentioned khat in a longer report about drug trafficking and terrorism, stating “it is likely” khat proceeds “pass through the hands of suspected (Islamic militants) and other persons with possible ties to terrorist groups.” That same FBI official, Steven McCraw, is now the DPS director.
The United Nations has issued several reports on a suspected link between khat proceeds and terrorists, warlords and pirates in Somalia and Kenya, where the plant is legal and a valuable cash crop. Those reports typically note the same groups seek to profit off many other legal businesses, through taxation or extortion.
In England, where khat is currently legal (it is scheduled to become illegal next year), lawmakers recently asked drug researchers to review issues surrounding the plant and make recommendations. In its report, issued this past January, the Independent Advisory Council on the Misuse of Drugs stated it couldn’t establish any link between khat and international terrorism.
“ACMD has not been provided with any evidence of Al Shabaab or any other terrorist groups’ involvement in khat export/sale, despite repeated requests for this information from a number of national and international official sources, including various Government bodies,” it concluded.
The evidence directly connecting the 18-month-and-counting Houston khat investigation to terrorism funding is also unclear. DPS spokesman Tom Vinger said he couldn’t comment other than pointing to the agency’s most recent threat assessment. He said the investigation hasn’t yet yielded any terrorism-related criminal charges.
But an attorney representing four of the defendants said the Harris County prosecutor didn’t mince words with him. “Almost the very first words out of his mouth were, ‘You know your clients are terrorists, right?’” defense attorney Mark Correro recalled. A spokesman for the district attorney’s office said the prosecutor was unavailable for an interview.
Islamic civil rights groups, meanwhile, have begun looking into the DPS khat investigation. While the Council on American-Islamic Relations condemns illegal drug use, “Initial vague references to terrorism usually don’t pan out in court,” said Ibrahim Hooper, national spokesman for the civil liberties advocacy group. “But the damage is done to Muslims.”
‘Not just a witch hunt’
Nationwide, the Drug Enforcement Administration seized about 138,500 pounds of khat in 2012, about 15,000 fewer pounds than the year before. Locally, drug officials say khat cases have been scarce and a low priority. A spokeswoman for the DEA’s Houston office said she knew of none recently.
“It’s very, very rare for us to see,” added David Patino, a spokesman for U.S. Customs and Border Protection’s Houston office, which also covers Dallas, San Antonio and Austin. Over the past two years, Patino said his office has confiscated less than 2 pounds of khat.
Many of the details surrounding the recent DPS investigations and khat arrests are hidden; the agency has requested that court documents be sealed because of the ongoing investigation.
Correro declined to make his clients available for an interview, but he said all are Ethiopians who are in the country legally, work as cab drivers or in construction and use khat socially. The amount of the plant confiscated from each ranged from a few ounces to 5 pounds, he said.
The DPS says its investigation has yielded much bigger results than those described in public records. Vinger said the operation has led to the seizure of 1,000 pounds of khat. Maj. George Rhyne, who oversees the DPS unit heading up the khat team, said more than 800 pounds of that total were confiscated elsewhere and “likely destined for delivery to the Houston area.”
“Not all drug seizures are immediately tied to arrests, especially in long-term, ongoing investigations,” Vinger added in an email.
A person who has viewed the sealed court documents said one way the DPS appeared to be linking the local khat cases to terrorism was through money transfers from some of the investigation’s targets to a lengthy list of overseas destinations including Ethiopia, but also China, Egypt and Pakistan, among others.
Hooper, of the Council on American-Islamic Relations, who hadn’t seen the document, said the tie sounded weak. “It’s a bit vague — sending money to a Muslim country that has been associated with terrorism.”
A U.S. Justice Department spokesman said he couldn’t find any khat cases that had yielded terrorism charges. Past arrests have included money laundering charges based on transfers “to Somalia or other countries where khat originates from,” Andrew Ames of the department’s National Security Division wrote in an email. But “I am not aware of a case that alleges where that money goes.”
“Our concern is always when you start hearing references to terrorism,” said Mustafaa Carroll, executive director of the Islamic council’s Texas branch, who said he has interviewed several of the Houston defendants after the khat cases were brought to his attention. “Our concern is that it’s not just a witch hunt.”
What’s legal, what isn’t
Law enforcement has had uneven success so far in prosecuting the recent khat cases. In June, the Harris County district attorney’s office charged Abdulmalik Mohammed Ahmed and his two sons, Kadir Hussein and Ridwan Hussein, with possessing less than a pound of cathinone, one of khat’s active ingredients, based on confiscations from their home.
Last month, however, all charges against the men were dismissed. “No controlled substance identified,” the Oct. 11 court filings read. “A lab determined what investigators believed was khat found in their possessions, was not,” added Jeff McShan, the Harris County district attorney’s office spokesman.
Two other cases — those against the men in the original traffic stop — are being delayed as attorneys wrangle over whether the stop and seizure of approximately 4 pounds of the plant was legal. (Their attorney, Walter Fontenot, didn’t return calls.) Five more cases are pending.
A big hurdle to khat prosecutions is the federal law prohibiting its use.
Unlike opium poppies or marijuana, the plant itself — which is not named in federal drug laws — isn’t illegal. Rather, the two stimulant chemicals in khat are prohibited. Cathinone is the more potent, with users describing its effects as similar to amphetamine. Cathine is considered comparable to caffeine.
Cathinone has been listed as a Schedule I drug since 1993, the DEA’s “most dangerous” classification of drugs considered to have no medical benefit and a high risk of dependence, such as heroin. Criminal penalties for possession and distribution can be severe. Cathine is a Schedule IV substance — which are mostly prescription drugs with relatively low risks associated with them, such as Ambien, the sleep medication.
At least one federal appeals court has cited the complicated listing as a reason to dismiss charges. “The term ‘cathinone’ is sufficiently obscure that persons of ordinary intelligence reading the controlled substances schedules probably would not discern that possession of khat containing cathinone and/or cathine constitutes possession of a controlled substance,” the 6th U.S. Circuit Court of Appeals wrote in a 2005 decision based on a case out of Detroit.
Other courts have disagreed, concluding that while it would be “helpful” for federal laws to identify khat itself as illegal, ordinary citizens should know its possession might be criminal.
Khat prosecutions face other unique tests. The plant’s stimulants quickly lose their potency and can disappear entirely in a matter of days. At that point, “ingesting them would have the same effect as chewing leaves off an oak tree,” federal judges wrote in a July 2013 Indiana khat case.
In other words, “it can lose a lot of its illegality in two or three days,” said Sid Moore, an Atlanta lawyer who said he has helped litigate about 70 khat-related cases nationwide.
For those arrested for possessing khat — and for police, as well — that means the severity of the alleged crime is a mystery pending lab test results. Combined with the traditional confinement of the plant’s use to small immigrant communities, such complications have resulted in infrequent prosecutions in Texas.
In June 2000, Mustaf Guled and Abdi Rafat were each charged with felony counts of possessing cathinone, court records show. Six months later, however, Guled was found not guilty; Rafat’s case was dismissed the same day. Houston attorney Steven Lieberman, who represented the men, said the judge ruled in his clients’ favor after a chemist testified he could only find trace amounts of illegal stimulants in the seized plants.
McShan, the district attorney spokesman, said apart from the pending cases, prosecutors there knew of no other khat prosecutions in recent memory. Shannon Edmonds, a spokesman for the Texas District and County Attorney’s Association, said he hadn’t heard of any others, either.