Thought Crimes, Profiling, and Unequal Treatment Under the Law

Citizens’ Hearing Held in DC On Loss of Civil Freedoms

While the news media discussed controversial “homegrown terrorism” hearings on Capitol Hill planned by Congressional Representative Peter King (R-NY), another public hearing on related subjects – albeit from a different angle – took place largely unnoticed.

On January 29, 2011, a newly formed coalition of civil rights and social justice organizations – the National Coalition to Protect Civil Freedoms – held a citizen’s hearing to discuss the erosion of civil rights and due process in the current “war on terror”. Fittingly, the hearing took place at the Martin Luther King, Jr. Memorial Library in Washington D.C.

Titled “The Loss of Civil Freedoms in America: A Response by Muslim and Civil Rights Organizations”, the three hour hearing included three panel discussions featuring law professors, civil liberties activists, attorneys who worked on high profile terrorism cases, and family members of Muslim men convicted of terrorism crimes.

Over 100 audience members, about half who were Muslim, attended the event which was not widely publicized at area masajid.

Each panel involved two or three “citizen representatives” who made brief statements, and two or three “expert witnesses” who sat on a different table and gave opening remarks and then took questions from the citizen representatives. The format is used at congressional hearings.

The first panel, “Prosecuting Thought Crimes and Manufactured Charges”, included constitutional law professor and past-President of the National Lawyers Guild Peter Erlinder; Reem Salahi, an attorney who worked on wrongful detention cases in New York; Kathy Manely, one of the attorneys for New York Imam Yasin Aref who was entrapped by the FBI and convicted of terrorism charges; and Sara Flounders, an anti-war activist and co-Director of the International Action Center. There were two expert witnesses – professor and civil rights attorney Sahar Aziz and attorney Steve Downs.

A prime concern of this first panel was the concept of “material support” – a legal term the government uses to define participation in terrorism in ways other than acts of violence. Most post-9/11 terrorism convictions involving Muslim men in the United States were on material support charges.

“The laws of material support need to be reformed because they are so broad and vague,” said Sahar Aziz. As a matter of law, the government cannot investigate citizens for acting on their first amendment rights, but the material support law “makes many first amendment rights criminal” said Aziz, who served as a policy advisor for the Department of Homeland Security. When Aziz and other legal experts file complaints with the government about the material support laws, they are “widely dismissed with boilerplate responses,” said Aziz.
Attorney Steve Downs said its easier to convict Muslims using ill-founded legal techniques because of the idea of “collective guilt”, which he said is a way to “create exceptions to the ideal of equal protection under the law.” Asked by a panel member if its possible to challenge the use of the label “terrorism”, Downs said the label is key to the way the government communicates.

“George Washington was a terrorist to the British. It’s a classic problem that you label someone so you don’t have to listen to them … people don’t [bomb others] for no reason, they have a reason … [but using labels] squashes political dialogue,” said Downs, who also recommended his own terminology, opting to refer to what is commonly called “pre-emptive prosecution” as “predatory prosecutions”. Downs’ client – Imam Yasin Aref – was entrapped by an informant in New York who later entrapped four others in New York in a case now known as the “Newburgh 4”. Downs said the government has manipulated the law over the last decade so its virtually impossible to go to trial on equal footing. For example, the government is legally exempted from identifying exculpatory evidence found in its surveillance material – evidence which could show a defendant is actually not guilty of the charges against them.

Sahar Aziz added that sometimes people are targeted for arrest and conviction simply because an FBI agent or federal prosecutor is seeking notoriety or a promotion. She called these “micro-incentives”.

The second panel was titled “Profiling and the Erosion of Civil Freedoms”, with expert testimony provided by Stanford educated lawyer and Bill of Rights Defense Committee Executive Director Shahid Buttar, and Mike German, policy counsel for the American Civil Liberties Union (ACLU) and a former FBI agent specialized in domestic terrorism investigations. CAIR Executive Director Nihad Awad chaired the panel of citizen representatives.

New York Congressman Peter King’s upcoming hearings on “homegrown terrorism” came up repeatedly during the afternoon, and Awad urged attendees to show up at the Capitol Hill sessions in large numbers. “Guilt by association is a shortcut to security … I would [also] like to know what radicalized Timothy McVeigh [the Oklahoma City bomber] to kill so many people in 1995, what radicalized a man who flew his airplane into the IRS building in Texas, [Jared] Loughner who shot so many people in Arizona … to devote an entire hearing to [target] the Muslim community just for cheap political gains should be rejected by all Americans,” said Awad as part of his opening statement. Congressman King claims his hearings will explore the causes of radicalization within the American Muslim community. The hearings will take place this February.

As part of the discussion on profiling, Shahid Buttar reminded attendees of the Muslim Mapping program proposed by law enforcement in California to identify parts of the state where there are large numbers of Muslims, and how such efforts were also undertaken by federal agencies like the FBI. The Muslim Mapping program was disbanded, but data on regions of the country with large Muslim populations continues to be collected by the federal government.  In a special investigation late last year, the Washington Post reported that security and anti-terrorism funding was allocated to local governments in part based on the number of Muslims they had in their jurisdictions.

Another federal initiative which encourages profiling is the SAR program – “Suspicious Activity Reporting”. Buttar listed some examples of what the government considers “suspicious activity” including taking notes, donating to charities, drawing diagrams, espousing extreme views, and photography. The FBI also recommended to its agents that falafel stands might be good targets for investigation, said Buttar.

When asked by a panelist if the SAR program can be challenged, ACLU attorney Mike German said the government has made that near impossible. “It’s very difficult to get any data … we cannot see the effect of profiling if the information [and data] is not being released,” he said.

The final panel was titled “Unequal Treatment and Victim Families Testimonies”. Expert testimony was provided by Padriss Kabriaei, an attorney with the Center of Constitutional Rights who represents several Guantanamo Bay inmates challenging their detentions in US courts, and four family members impacted by “war on terrorism” trials. The panel was moderated by Imam Shaker Elsayed from Dar Al-Hijrah.

Attorney Kabriaei began the discussion talking about the unusually harsh measures put on Muslims detained for non-violent crimes, especially the extreme isolation they are made to endure. Key to this harsh treatment are SAMS – “Special Administrative Measures” – incarceration policies made individually for inmates and authorized with a signature from the Attorney General of the United States. “There is no opportunity to challenge the application of SAMS,” admitted Kabriaei.

The family member testimonials were eye-opening even for family members themselves, as some of them did not know what other detainees were undergoing.

Faisal Hashmi, the brother of Fahad Hashmi who was convicted of material support charges for storing some rain coats and other gear for someone who was later identified as a terrorist and is now serving a 15 year sentence, described some aspects of his brother’s prison life. Twenty-three hours per days Fahad Hashmi, 31, is in isolation in a c ell by himself. He is not permitted to speak out loud in his own cell, and cannot pull a shower curtain when he washes because a video camera needs to see him at all times. Faisal said when the defense complained about these harsh conditions, the judge said they are “administrative, not punitive”.

Other family members who testified included Noor Elashi, daughter of Ghassan Elashi who is serving a 65-year sentence after being convicted in the Holy Land Foundation trial; Mariam Abu-Ali, sister of Ahmed Abu-Ali who was tortured into a confession in Saudi Arabia and then convicted of plotting to assassinate President George W. Bush and is now serving a life sentence in Colorado’s Supermax prison; and Lejla Duka, the 13-year old daughter of Dritan Duka from the Fort Dix 5 case who is also serving a life sentence in the Supermax prison.

The forum closed with a call to action and a call to educate fellow Americans. Attorney Shahid Buttar said what can be achieved at the local level – counties and cities – cannot be imagined at the federal level. He urged attendees to engage with local government and local law enforcement so at least they don’t support the federal government’s unconstitutional and over reaching misuse of the law.

There was a solidarity among attendees – most were already aware of the issues discussed and had followed trials over the past several years – and this was on display during an impromptu announcement by Alicia McWilliams, the aunt of defendant David Williams from the Newburgh-4 case.

Between the first and second panels, she rose and walked to the front of the room. Raising her voice to get everyone’s attention, she announced her effort to get 5,000 letters signed to present to the judge, asking him to dismiss the case.

“Don’t let fear stop you from putting your name [on this letter]. Us family members … we come out here and fight hard, I hit the streets, I hit the trains, I am out there supporting my nephew with fliers, petitions, by any means necessary, I’m out there doing it , I don’t have time for fear. All I have is that’s my family member … and love is what keeps me going. We are one family now, we are all fighting for justice. It doesn’t matter what religion you are. This is an American issue, its a people issue, we are the people, we make America.   OK? One family now?”

She raised her fist and smiled before taking her seat.