The Rights of the People (54 page)

“Anytime you hit Kennedy, it is the most hurtful thing to the United States,” Defreitas was recorded as saying. “To hit John F. Kennedy, wow.… It’s like you can kill the man twice.” He remembered idle and angry thoughts echoing in his mind while seeing planes on the runway: “If I could get a rocket, then I could do a hit. By myself, I am thinking about these things.”
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Delusions? Perhaps. But since 9/11 revealed a failure to envision such attacks, even delusions seem real.

Two categories of laws have come in handy for preventive prosecutions aimed at stopping would-be terrorists and other criminals long before they do harm. One is the “conspiracy” to commit a future crime; the other, “material support” to an organization designated unilaterally by the Secretary of State as terrorist.
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Conspiracy can be used only if there’s more than one suspect.
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If there’s just one culpable individual preparing with an undercover agent or informant, there’s no conspiracy, and federal prosecutors have brought charges under the “material support” statute, even where the “support” is abortive, fictitious, or hypothetical. If numerous suspects are involved, the two violations can be layered on top of each other: conspiracy to provide material support.

The trouble is, both these laws have snared people with little more than tenuous desires to join a cause, so far from the actual act that their schemes look ludicrous and prosecutions look merciless. If you can be jailed for agreeing to provide material support to al-Qaeda when you’ve never been in touch with al-Qaeda (and just thought you had), or when you try and fail to reach Afghanistan, or when you attempt to sell a missile you don’t have to nobody other than an FBI undercover agent,
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how dangerous can you be? Doesn’t organized terrorism require a level of rational thinking and planning? “Conspiracy” can be nebulous, and “material support” is defined so broadly and vaguely that some lawyers doubted its constitutionality until the Supreme Court upheld it in 2010, rejecting the vagueness argument. The federal law states:

Any noncitizen in the United States or elsewhere can be tried in a military commission for this crime, under the law as revised in 2009 by the Democratic Congress and signed by President Obama. A U.S. citizen can be tried in civilian court.

The least specific offenses—“training” and “expert advice or assistance”—could preclude any contact with groups listed as “terrorist,” even beneficial activities, such as training and advice on building democracy following civil wars. When a Justice Department official explained the law at a meeting in Washington of nonprofit agencies that provide humanitarian aid abroad, the representatives were shaking their heads and rolling their eyes in despair. The official even warned them to check out everyone they did business with, such as painters and plumbers they hired in foreign countries, to be sure they weren’t affiliated with “terrorist” organizations. He would not rule out prosecution for slipups. Although no such cases have surfaced, experience suggests the danger in granting government such powers. In 2010 the Supreme Court upheld the law against a constitutional challenge by nonprofit groups claiming a violation of their First Amendment right to free speech and association.

They wanted to provide training in peaceful conflict resolution and international law to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), separatist groups in Turkey and Sri Lanka, respectively, and to help them appeal for relief from the United Nations and other international bodies. Both the PKK and the LTTE had done violence to civilians and had been listed by the State Department as terrorist organizations. A majority of six justices in
Holder v. Humanitarian Law Project
argued that even advice on nonviolent methodology could enhance the organizations’ standing and further their activities, which included the tactic of terrorism.

“Such support frees up other resources within the organization that may be put to violent ends,” wrote Chief Justice Roberts in an opinion that read more like a policy paper than a constitutional analysis. “It also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.” The skills the American organizations wanted to impart could be used by the PKK “as
part of a broader strategy to promote terrorism,” he said. “The PKK could, for example, pursue peaceful negotiation as a means of buying time to recover from short-term setbacks, lulling opponents into complacency, and ultimately preparing for renewed attacks.”

Having made the case, however, Roberts then urged judicial deference to the other branches. “Congress and the Executive are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not,” he declared.

As we have seen, curbing Americans’ speech and association during wartime has been a dishonorable tradition from the early days of the republic. This case continued the pattern. Although the decision affected only a few people and organizations, and focused narrowly on the specific training that they had proposed, the ruling illuminated the war mentality that had penetrated the country, and showed how embedded it remained nearly a decade after the 9/11 attacks.

The Court did draw some limits around its findings. It held out the possibility that future applications of the material-support statute could violate free speech, without saying what they might be. It found no First Amendment violation in this instance, because the law does not bar individuals from saying “anything they wish on any topic,” as Chief Justice Roberts wrote. It criminalizes neither “independent advocacy” nor outright membership in such organizations, he said, unless the listed group directs or coordinates with the advocate.
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Yet the ruling precludes the peacebuilding that many American humanitarian groups attempt. It has been common for nongovernmental organizations based in the United States to work in countries torn by civil wars, usually as the conflicts show signs of ending, to promote democratization and civil society. This will now be legally risky, perhaps impossible, unless prosecutors look the other way and human rights advocates ignore the law, as both sides have mostly done in the past. The State Department has typically been slow to remove certain movements from the “terrorist” list after violence has subsided. The Nepali Maoists remained designated long after they had ceased fighting and had become the largest party in a freely elected government; being on the list hampered even American diplomats who needed to deal with Nepal’s Maoist prime minister. Nelson Mandela’s African National Congress was designated because of the violence to which it finally resorted in its struggle against apartheid in South Africa, notwithstanding Mandela’s inspirational leadership in healing racial wounds.

Congress could fix the problem if it were so inclined. As the Court observed, to prove a violation under the existing statute, prosecutors must show only that the trainer or adviser knew that the organization appeared on the terrorist list, “without requiring the Government to prove that plaintiffs had a specific intent to further the unlawful ends of those organizations.” If that requirement to show specific intent were added to the law, pro-democracy and conflict-resolution work could presumably go ahead.

The solution has a pitfall, however: To assess intentions, investigators would have to examine the content of speech, often very private speech. They have already done so in numerous cases to determine whether suspects have intended to support groups that engage in terrorism.

Suspicions about the Portland Seven were generated largely by inflammatory statements that one of the group, Jeffrey Battle, thought he was making in private, and which the government cited to characterize the men’s intentions. It made you think that every kid in America should be Mirandized: Anything you say anytime, anywhere, can and will be used against you in a court of law. Sami Omar al-Hussayen, a Saudi, was tried for designing Web sites allegedly to recruit terrorists. The jury found him not guilty, but he agreed to deportation. Strident support of the Palestinian cause brought unwanted attention to a Florida computer science professor, Sami al-Arian, who was accused of giving material support to Palestine Islamic Jihad; the jury acquitted him on most of the charges and deadlocked on the rest.

Once speech is followed by action, federal authorities have been eager to move, as when young Muslim Americans have gone off to camps in Pakistan or Afghanistan. The FBI hasn’t been charmed by their claims of charitable impulses or religious awakenings or even second thoughts, although their true objectives often seem murky and confused.

Some young people seek adversity as a challenge to test themselves or to find themselves. Some feel like outsiders in the United States, which they believe devalues their heritage. Some mix dogmatic ideology or divine purpose into a quest for identity that can take them into fierce pride, even violence, as they attach to a cause larger than themselves. So it has been for whites who join supremacist militias, African-Americans who espouse black separatism, American Jews who confront Arabs in the West Bank, and American Muslims who venture into the wars being waged on behalf of Islam.

These are not parallel behaviors, but they come from similar roots of disaffection. Militant black movements in the United States have been
largely nonviolent, notwithstanding some of the rhetoric. American immigrants to Israel usually find fulfillment being Jewish in a Jewish state without attacking Palestinians, despite a scattering of zealots who define religious virtue by doing so. Similarly, only a tiny percentage of Muslims in America have been drawn to militant callings for jihad—meaning not just the inner struggle for purity that the word conveys, but also the outer struggle of arms. It is no accident that some of them, including most of the Portland Seven who tried to reach Afghanistan, are also African-American converts to Islam, carrying a double stigma and a dual mission.

If those who gravitate to terrorist movements begin as souls adrift, they may naturally seem lost and harmless. To prosecute them preventively before terrorism is committed can look faintly ridiculous, especially when they’re so directionless that no self-respecting al-Qaeda cell would trust them. That does not mean that they cannot shoot a gun or plant a bomb, however, and vulnerable personalities seem drawn to the sense of purpose and belonging that a movement provides. So they have naturally become targets of the government’s post-9/11 preventive efforts.

In the spring of 2001, a few months before al-Qaeda struck and the Taliban suddenly became the active enemy,
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seven Yemeni-Americans from Lackawanna, New York, went to Afghanistan for six or seven weeks in search of something religious, something political, perhaps something violent. Then all but one came quietly home, raising intense suspicions that they had been molded into a sleeper cell. They had allegedly been recruited by a man who had trained in al-Qaeda camps and fought with Muslims in Bosnia.

Their motivations remained obscure, but according to the attorney Kenneth Ballen, who has researched terrorism, they may have been inspired partly by a sermon given by a confused soul with heroic dreams, Jumah al-Dossari. Recruited by a Saudi fighter from Bosnia, he reportedly told them, “Muslims are dying, and we’re not doing anything about it. We must stand up for our brothers. We must stand up and defend Islam.” Leaders of the mosque where he spoke, offended by his radical preaching, told him to get out of town. Unfortunately, some of his young listeners got out as well, ending up in Afghanistan.
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Weapons training excited some, and they received instruction in firearms, rocket-propelled grenades, land mines, plastic explosives, and camouflage. Sahim Alwan, who told
The New York Times
that he had been driven there by “a lot of curiosity,” soon realized he was in too deep, and decided to leave. At first he wasn’t allowed to go. Then he became determined to do so after hearing talk of martyrdom and threats to America
from none other than Osama bin Laden, who was also curious and invited him for two private conversations. The al-Qaeda leader asked him how Muslims in the United States felt about suicide missions. “We don’t even think about it,” Alwan quoted himself as saying. Bin Laden smiled.

The FBI, tipped off by an anonymous letter reporting the arrival of terrorists to recruit young men in Lackawanna, zeroed in on the six who had returned, using FISA warrants to monitor them closely and interpreting every e-mail about weddings, meals, and soccer games as code. The CIA saw the group as the “most dangerous” cell in the country, and so the president, vice president, CIA chief, and FBI director were regularly briefed.
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President Bush even considered a proposal by Vice President Cheney to have the military swarm into the Buffalo suburb, arrest the men, and hold them as enemy combatants. The idea, pressed by Cheney’s counsel David Addington, took its authority from a memo by John Yoo of the Justice Department arguing that in wartime, such action was barred by neither the Constitution nor the Posse Comitatus Act of 1878, which usually prohibits the military from domestic law enforcement.

Bush turned down the suggestion after hearing objections from FBI Director Robert Mueller; Michael Chertoff, the head of the Justice Department’s criminal division; and Condoleezza Rice, the national security adviser.
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The FBI then made the arrests in September 2002 and, under the threat of being declared enemy combatants, the men pleaded guilty and were sentenced to about ten years. The recruiter, Kamal Derwish, was killed when a missile from a CIA drone hit his car in the Yemeni desert.