To view terrorism as a war or as a crime — on this, much turns.
Seen through the military lens, the 9/11 terror attacks demanded a military response: first against Afghanistan and then, preventively, against Saddam Hussein’s Iraq. Later, the threat of terror has licensed drone strikes against “al-Qaeda and associates” as an act of elastically defined self-defense — such is the legal rationale provided by Harold Koh, an esteemed human rights jurist and the Obama State Department’s top lawyer from 2009 to 2012.
The bulk of Beltway opinion — the Democratic Party very much included — continues to support a militarized response to terrorism. This is despite the catastrophe of the Iraq invasion, a stalemate in Afghanistan, and the failure, by any standard, of military tribunals in trying terror suspects. (The Guantanamo courts have fully adjudicated only six cases in fourteen years, even though speed is the war court’s main selling point.)
Left-of-center people, meanwhile, have favored a criminal law and policing response to terrorism. Domestic federal courts have tried and convicted dozens of terror suspects without procedural friction (or much media attention) since the autumn of 2001.
But if the military response has been disastrous, the policing approach to terrorism has also come at a cost. Terrorism has become at the same time more vaguely and selectively defined. Police surveillance of Muslims has spread at the federal and local level. FBI-concocted terror plots have not only ensnared hapless losers, but normalized the use of informants.
The corrosive effect of these and other counter-terrorism efforts is the subject of Wadie E. Said’s new book, Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions. Though barely in his forties, Said has already established a distinguished legal career as both a prolific scholar and a criminal defense attorney representing those accused of providing “material support” for terrorism.
New York City–based attorney Chase Madar recently spoke with Said about the separate legal system constructed for American Muslims, the domestic legal tactics used in the “war on terror,” and whether the word “terrorism” is overused.
Do we now have a separate legal system for Muslims?
It certainly appears that individuals charged with terrorism tend to be disproportionately Muslim, with the government’s concept of who falls into that category being rather expansive.
When I helped defend one of the defendants in the Sami al-Arian prosecution, we faced allegations that the men were actively part of the North American wing of the Palestinian Islamic Jihad, a designated foreign terrorist organization (FTO), and the charges in that case ranged from a RICO conspiracy (the statute used against organized crime groups) to conspiracy to commit murder abroad and material support for the FTO.
However, when you looked at the charges, the most you could say was that some of the defendants had spoken or taken positions that approximated the view of the FTO; the rest of the charges simply aimed to criminalize legitimate humanitarian aid that was sent to the West Bank and Gaza.
The law didn’t require the government to prove a link to any violent activity, just that the charitable donations were related to the FTO. But even that proved difficult for the prosecution, as the government repeatedly overstated the already-tenuous link to the FTO, and in the end received a jury verdict that resulted in no convictions.
My client, Hatem Fariz, and Sami al-Arian both pled guilty to lesser charges, but that was more the result of the risk a retrial presented, as neither man was a real terrorist mastermind or even supporter. The other defendants, Sameeh Hammoudeh and Ghassan Ballout, were acquitted of all charges.
The wind really went out of the government’s sails when Sameeh Hammoudeh’s father took the stand and painstakingly went through each instance of money sent to the West Bank, and described the recipients, thereby totally dispelling any link to terrorism. The government wasn’t expecting anything like that, as I think that part of the idea was that you charged some of these Arab Muslims with terrorism and a conviction would be ensured.
This is far from the only case, and you do see what looks like a lower threshold for criminal prosecution and conviction in other “material support for terror” cases — like the Holy Land Five, who are serving federal sentences for raising money for charities with very tenuous, six-degrees-of-separation links to listed terrorist organizations in the West Bank and Gaza Strip, and for Javed Iqbal, a guy serving a six-year federal sentence because he helped install a few cable boxes in Staten Island with access to Hezbollah’s TV channel.
What are some examples of the “war on terror” shaping the criminal justice system? Wasn’t American law enforcement already amped up by the “war on crime” and the “war on drugs” before the autumn of 2001?
In a sense, yes, but terrorism prosecutions have changed the landscape quite dramatically. We now have new laws, new investigatory tactics, relaxed evidentiary rules, a special sentencing enhancement, and even a separate prison experience for people convicted of terrorism crimes.
The problem of course resides in the fact that many of the convictions are for supporting FTOs in ways that we don’t think of as necessarily related to terrorism, and that informants have played an outsized role in convicting individuals who had no previous ties to any dangerous groups, but just happened to be targeted and pressured because they were Muslim.
Certain of these prosecutions call into question basic rights we associate with the criminal process in the United States. Take the Omar Abu Ali case. Here was a US citizen tortured in Saudi Arabia by the secret police, reportedly at the behest of the American government. He was held for weeks incommunicado and without access to counsel.
But the US district court admitted his confession to terrorism charges because it felt he gave it “voluntarily.” It’s an incredibly dangerous precedent to have in US law. While there isn’t a rash of cases like this, where an American citizen is tortured abroad and then has the statements he made there admitted here in a criminal prosecution, this is the dominant pattern, precedents that are being stockpiled for later.
Another big issue is snitches, informants. In the ordinary criminal context, this is something that a lot of people were beginning to criticize — academics, the popular press. Even Congress felt the need to regulate law enforcement’s use of informants, so this was a tactic coming under some scrutiny.
But terrorism has supplied the perfect “gateway drug” to expand and re-legitimize informants and undercover policing in varied contexts, none of which have anything to do with terrorism. Now the Small Business Administration uses undercover police, so does the Supreme Court. I don’t know whether we have any of this without the “terrorism moment” that we’ve had now for a decade and a half.
Federal agencies like the DEA are now emboldened to set up things like stash house stings — where informants tell criminal targets that they know of a house or apartment that contain large amounts of money and drugs. The targets then go, usually heavily armed, to the address in question, only to find even more heavily armed federal agents waiting to arrest them there. I don’t think you’d have this kind of out-and-out sting stuff without terrorism to cover for it.
Now, New York City has just recently agreed to new regulations on political spying, which is a very positive development in light of how pervasive and overreaching its surveillance of Muslims was, but what I fear is that any new crisis or attack could see the same sweeping tactics return. After all, political spying was also entirely fruitless, with an NYPD official admitting in a sworn deposition that the city’s surveillance of its Muslim communities did not lead to one successful prosecution.
The main point is these precedents are now out there to be used when the government wants to — they’re racking up precedents to deploy later.
What’s the federal law against “material support for terrorism,” and why is it a bad thing?
There is a federal criminal statute, passed by Congress in 1996 as part of a larger criminal and anti-terrorism bill, that bans the provision of material support to designated foreign terrorist organizations (FTOs). The secretary of state is responsible for the list, and if you provide this support to an FTO, you can be imprisoned for up to twenty years.
Originally, the law was passed to combat the supposedly pressing problem of terrorist groups raising money for their operations under the cover of humanitarian activity, but I have never seen evidence that that was such a problem as to justify such a novel and draconian statute.
In any event, material support no longer means just money, but can also come in the form of speech; in 2010, the Supreme Court said that criminalizing the provision of material support in the form of speech does not offend the First Amendment. So if you wanted to help an FTO move away from violence by teaching it how to lobby individual American officials and legislators, you could be charged, convicted, and imprisoned under the law.
All this needs to be said before you might grapple with the idea that the law deems supporting a group’s humanitarian activities, even if undisputedly legitimate, is in furtherance of an FTO’s illegal aims.
A few years ago at a conference, I met the federal prosecutor who tried and convicted the Holy Land 5, American Muslims who had raised money for charities that had been linked to officially designated terror groups in Palestine. And I asked the prosecutor if he thought the same prosecutorial theory he used could also have convicted Rep. Peter King (R-NY), who had raised money for NORAID, a charity related to the Irish Republican Army. And the prosecutor thought for a minute, then said yes, he thought it would.
Later that day, defense attorney Josh Dratel told me that he thought other ethnic groups like Irish- and Jewish-Americans, could get away with charitable giving and other “material support” donations that Muslim Americans can’t, and not for any legal reason but because these groups are more assimilated into the US and have more political power. What’s the tribal politics at work here apart from the law?
There is definitely selective prosecution. And in the Sami Al-Arian trial I worked on, I made a selective prosecution argument, but it went nowhere in court.
But selectivity and double standards are real. You see this when two groups provide the same type of material support, but the government goes after only one because the other group is more politically popular.
The most perverse example of this occurred in the trial of the directors of the Holy Land Foundation for Relief and Development, formerly the country’s largest Muslim charity.
In that case, the government did not dispute that the money sent to the West Bank and Gaza was for humanitarian purposes or that the groups receiving the aid were part of an FTO (Hamas). Instead, the government argued that the group recipients were affiliated with Hamas in the eyes of the population there, and that the material support — the charitable donations — bolstered the legitimacy of the group in the eyes of the community over there.
The defendants were ultimately all convicted and given sentences ranging from fifteen to sixty-five years in federal prison, based in part on the testimony of anonymous Israeli security agents. One of those agents was even allowed to testify as an expert, meaning he was allowed to give opinions on the evidence of links between the groups receiving aid and Hamas, which was precisely the controversy at the heart of the case.
What you see in material support law is that the government wants people to get out of the business of standing in solidarity with foreign peoples, even if it’s just a humanitarian thing. Government want to have the ability if need be to declare some group terrorists and ban all activity with them.
I think the answer is to not construe material support so broadly. Material support has metastasized into a monster, allowing government to go into a situation and ruin people’s lives. We already have the Neutrality Act. You can’t foment war on a freelance basis. And so I question the need for material support law in the great majority of circumstances.
Let’s just say there’s a problem with groups raising money under humanitarian cover (not “speech” and “legitimacy” and all the nebulous things that have been done). Then yes, but you have to be scrupulous and apply it across the board. You have to be fair and not over-include certain groups, like Muslims, while ignoring others.
What do you make of all the terror plots the FBI has first created, and then foiled, using paid informants?
Basically, the FBI has created a new type of cottage industry whereby they arrange for some very sketchy characters, that is, individuals who have been indicted for various crimes, oftentimes without proper immigration status, to serve as informants in Muslim communities across America. Generally they do not have any preexisting suspicion that any one individual is a threat, but rather they go to mosques and community centers to entice young men with offers of payment to carry out a violent attack.
The operative theory is that these individuals are in danger of being “radicalized” because of their religion. Of course, the FBI controls the whole thing and busts the plot before anything can go wrong.
On the one hand, because the defendants in these cases are usually Muslim youth, they tend to be convicted because it’s very hard to argue they were entrapped in such circumstances, so strong is the association of Muslims with terrorism in this country. However, it is of great concern that the FBI spends so much time and so many resources essentially breaking up plots that its agents and informants create.
Look at the conclusion of Apuzzo and Goldman’s book Enemies Within: Inside the NYPD’s Secret Spying Unit and bin Laden’s Final Plot Against America (a very good book by the way — they did an amazing job). At the end of their book they say, “The NYPD are bumbling amateur — we need the FBI to do the job.”
This gives the FBI legitimacy they don’t deserve, as they’ve engaged in very provocative tactics to ensnare people who never would have constituted a threat but for the agency’s involvement, largely on the basis of their religion. In the end, the NYPD just makes it easier for the FBI to look good by comparison.
There’s a lot of debate now about whether or not it’s right to apply the term “terrorism” to violent crimes that seem to have a political purpose, whether the assault on Planned Parenthood in Colorado Springs, the killing spree in San Bernardino, or the conquest of a bird sanctuary in Eastern Oregon. Is the t-word overused or under-used?
For some reason the “terrorism” label seems to bring with it a special level of condemnable evil, so people want to deploy it for the purpose of indicating what sorts of acts they consider to be particularly reprehensible. I worry that calling something “terrorism” has lost a great deal of meaning and speaks to a kind of dispute over a hierarchy of suffering.
So while victims of certain types of unjustified violence argue that the term should be used more, I fear that the term has become slightly devoid of meaning, as the debate over “one man’s terrorist is another’s freedom fighter” continues without resolution in sight. I am not sure that greater use of the term resolves that issue.
Most of the discourse on Muslim radicalization in the US omits any mention of US foreign policy. Becoming a terrorist is just a matter of bad theology, not a response, however wrong, to anything going on in the outside world. Even liberal critiques of radicalization theory, like the Brennan Center’s 2011 report on the subject, generally refuse to mention the whole spectrum of US interventions in the Muslim world as a stimulant — not an excuse for, but a stimulant — for acts of terror in the US.
And this is even though both Faisal Shahzad and Najibullah Zazi explicitly cited drone strikes on their native Pakistan and Afghanistan, respectively, in the courtroom when asked why they attempted terrorist violence in the US. What do you make of this?
Say you were to do a study of postwar America of every single situation in which a non-state group, part of an insurgency or rebellion, is going after targets with their occupier or oppressor. In every single case, the occupying power refuses to give any credence to anything the non-state actor does. You see this over and over again.
You saw this with Irish prisoners against the British. The Irish detainees asked to be treated as prisoners of war, whereas the British authorities felt they were nothing more than common criminals. They refused to credit their message and cause in any way. Once an authority starts accepting that a message has legitimacy, its ability to defend its repressive tactics against people struggling for liberation starts to dissipate.
Terrorism is a word that triggers an intellectual shutdown of people’s critical faculties. You just say the word “terrorism,” and highly intelligent people in academia, in government, are taken in by that logic.
For example: there’s a sentencing enhancement for terrorism. At one talk I gave, a law professor suggested a parallel to child pornography, which also has a sentencing enhancement. But the two are different. There’s a political motivation for terrorism that’s totally absent in child porn.
People want to compare terrorism to other taboos, but that doesn’t really help anything. The problem is, you can’t look at terrorism as political violence without being accused of justifying it.