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Law360, New York (April 27, 2020, 7:20 PM EDT ) U.S. District Judge Jed Rakoff on Monday declined to let a convicted global arms trafficker out of prison in light of the COVID-19 pandemic, citing the risk of recidivism if he were released and limited data that shows the low risk of contracting the coronavirus at the Illinois prison where he is currently incarcerated.
During a morning hearing conducted via conference call, Judge Rakoff refused to order the release of Syrian arms dealer Monzer al Kassar, who was convicted at trial of arms offenses and sentenced in 2009 to 30 years in prison, without prejudice. However, Judge Rakoff reiterated his previous view that he has the authority to waive the requirement in light of the coronavirus that a defendant first exhaust their administrative remedies with the Federal Bureau of Prisons before seeking compassionate release from the court.
Judge Rakoff said at the outset, he couldn't have imagined having pity for al Kassar given the overwhelming evidence at trial that he was a major contributor to worldwide violence and terrorism, but the judge said he was sympathetic to the risks al Kassar may face at this time.
While acknowledging the health problems the 74-year-old al Kassar faces, including diabetes, hyperlipidemia and hypertension, which his attorney says put him at a heightened risk of consequences from the virus, Judge Rakoff said it was quite plausible al Kassar would be tempted to resume his old profession if he were released.
"While his existing health problems are significant, they are being dealt with," Judge Rakoff said. "The limited data the court has before it suggests that risk of contracting COVID-19 in his current facility is very low."
Judge Rakoff noted that, according to the government, al Kassar is receiving substantial medical care while in prison and that there are no recorded cases of COVID-19 at his facility. Moreover, al Kassar is a danger to the community, Judge Rakoff said, who has major connections in the arms dealing world. There's no reason to believe he would be unable to take up his old gig if he were released back to his home in Syria, the judge reasoned.
However, Judge Rakoff said al Kassar could reapply for compassionate release if that situation at his current facility — USP Marion in Marion, Illinois — changes.
Al Kassar's attorney, Kathy Manley, argued that al Kassar has several serious medical conditions, and has served more than 10 years in prison, and the fact that he's receiving treatment for his health problems doesn't matter because of the risk to his life if he were to contract COVID-19.
"The fact that there's been no reported cases yet in Marion, Illinois ... first of all we don't know if there [are] cases there because there's been an extreme lack of testing by BOP," Manley said. "Over the last few days, rates of infection in BOP facilities have been going up greatly."
Assistant U.S. Attorney Jason Richman told Judge Rakoff that al Kassar hasn't presented "extraordinary and compelling" reasons that would justify his early release.
"As of now there are no reported COVID-19 cases in the facility," Richman said. "And the facility has taken extreme care and hopefully gotten out in front of the spread of coronavirus."
Richman also said al Kassar, who traveled around the world to transport weapons to presumed terrorist organizations, remains an extreme risk to the community.
"There is absolutely no reason to believe he would not resume the business he did for years and years and years given the opportunity," Richman said.
According to the government, al Kassar was snared in a U.S. Drug Enforcement Administration dragnet in which he believed he was supplying weapons, including surface-to-air missiles, to the Revolutionary Armed Forces of Colombia, or FARC. The Colombian rebel group is listed as a terrorist organization by the U.S., though it officially disbanded after a 2016 peace deal.
Prosecutors say al Kassar was "one of the largest and most dangerous arms traffickers in the world," who supplied weapons and military equipment to groups in countries including Nicaragua, Brazil, Cyprus, Bosnia, Croatia, Somalia, Iran and Iraq.
The government is represented by Jason A. Richman of the U.S. Attorney's office for the Southern District of New York.
Al Kassar is represented by Kathy Manley.
The case is U.S. v. al Kassar et al., case number 1:07-cr-00354, in the U.S. District Court for the Southern District of New York.
--Editing by Amy Rowe.
For a reprint of this article, please contact reprints@law360.com.
