NDAA: Pre-Emptive Prosecution Coming to a Town Near You

By Charlotte Silver, Al Jazeera English

20 February 13

n the US, due process - one of the defining features of a democratic judicial process - continues to be badly bludgeoned: Obama fights tooth and nail to push through NDAA, which would allow indefinite detention of US citizens, and the definition of terrorism has expanded its unwieldy scope, casting a widening net that ensures more and more people are captured in its snare.

The US has pursued "domestic terrorism" by practicing pre-emptive prosecution, that is, going after individuals who have committed no crime but are alleged to possess an ideology that might dispose them to commit acts of "terrorism". Maintaining that it can -and should - be in the business of divining intent, the government decimates crucial elements of the US justice system.

Thus, in cases where terrorism is charged, prosecutors need not prove guilt beyond a reasonable doubt. Rather, only the defendant's potential for committing a crime need be established in order to convict.

Consider the case of Tareq Abufayyad, a young Palestinian man and recent college graduate who was detained at San Francisco International Airport when he was on his way to unite with his family, all of them naturalised citizens of the US. Tareq was deemed inadmissible merely on the grounds that he had the potential to become a Hamas-operative.

FBI Agent Robert Miranda, the lead investigator into the government's case against the Holy Land Foundation, argued before the Immigration Judge presiding over Tareq's case that, because he was a well-educated man from Gaza, a strong-hold of Hamas, Tareq would be "attractive to Hamas" as a future recruit.

It's not hard to understand why David Cole, a professor of law at Georgetown University, concluded pre-emptive prosecution as an "inevitably speculative endeavour".

Project Salam, an organisation devoted to monitoring and documenting the US Justice Department's prosecution of terrorism cases, points out that the logic of pre-emptive prosecution - enthusiastically embraced after 9/11 - was derived in significant part from Dick Cheney's infamous "One Percent Doctrine". Ron Suskind explained Cheney's reasoning:

"Even if there's just a 1 percent chance of the unimaginable coming due, act as if it is a certainty…. Justified or not, fact-based or not, 'our response' is what matters."

Commenting on the impact Cheney's policy had on the role of evidence in judicial proceedings, Suskind writes:

"As to 'evidence', the bar was set so low that the word itself almost didn't apply."

Terrorism statutes

For the past 12 years, this wanton policy has been wielded primarily against Muslims in a frenzy of cases brought against US citizens and others in immigration, civil and criminal courts, with anguished and predictable devastation wrought on individuals and their families.

"If they are sufficiently 'Muslim', they are sufficiently 'predisposed'," writes Steve Downs, civil liberties lawyer and founder of Project Salam, in Victims of America's Dirty Wars.

In a telephone conversation with me, however, Downs noted that this policy has recently been extended to apply to those who hold other "ideologies", namely leftists and anarchists. Downs pointed to a handful of cases, including the "Cleveland 5", "RNC 8" and "Nato 3" that suggest the direction in which the policy of preemptive prosecution is going.

In the wake of 9/11, many states - including Illinois, New York, New Jersey and Oklahoma - passed terrorism statutes that included their own variations on the definition of terrorism. However, because it is the federal government that primarily handles cases of terrorism, states have rarely employed these laws.

Last year, for the first time, Illinois deployed its own statute against terrorism. Illinois' terrorism law states:

"A person commits the offence of terrorism, when with the intent to intimidate or coerce a significant portion of a civilian population; he or she knowingly commits a terrorist act."

The language used is vague, opaque and clearly lends itself to a chillingly broad landscape of prosecutorial action. But most significant, the statute does not require that an unlawful act be committed in order for a charge of terrorism to be brought against an individual in an Illinois court.

Indeed, civil rights lawyer Michael Deutsch believes, "The law could theoretically be used against labour strikes, acts of civil disobedience, demonstrations, and so on." In other words, acts that should be protected under the First Amendment are not exempted from the definition of terrorism.

We have already seen how the domestic front of the "War on Terror" has effectively turned lawful acts, like contributing to charities in the Middle East, into illegal "material support" of Foreign Terrorist Organisations. Staggering attacks on democracy and liberty continue as a growing list of activities that are framed as terrorism.

The only time the Illinois statute has been used was against a group of Occupy activists.

On May 16, 2012, days before the NATO summit was scheduled to take place in Chicago, the local police raided an apartment and arrested nine Occupy activists who had come together from around the country to protest the convention.

Over the next few days, all but three were released. Those who remained behind bars were: Brian Church, 22, and Brent Betterly, 24, from Florida, and Jared Chase, 27, from New Hampshire.

On May 19, they were indicted under the state's anti-terrorism statute and charged with conspiracy to commit terrorism and possession of explosives.

After announcing the charges, the State's Attorney, Anita Alvarez, released a document to the press that introduced the three young men as "self-proclaimed anarchists" and "members of the "'Black Bloc' group", and sketched out the plans they had been "conspiring" against the city of Chicago.

What the press release did not mention is that the group had been infiltrated and coached by two undercover police officers named "Gloves" and "Mo".

Definition of terrorism

Utilising one of the classic tactics perfected in time-honoured counter-intelligence operations used to intimidate, threaten and entrap people engaged with political groups out of favour with the government (from the Black Panthers, environmental protection groups, and Communists to protesters of the Vietnam war and others), the cops convinced the young men to concoct Molotov cocktails and, as soon as they did, phoned into police headquarters - triggering the raid.

After the charges were announced, Deutsch, the lawyer representing the three men, told the press that the case was "even worse than entrapment".

On the phone, Deutsch explained to me that this case fits within "the whole policy of pre-emptive prosecution, of creating the crime and then solving it".

Entrapment is consistently employed in these cases. However, where the presence of entrapment may have seen a case thrown out in the past, the logic of pre-emptive prosecution arms the state with the ability to justify its actions and successfully circumvent that defence, as noted by Project Salam:

"When the defendant claims as a defence to have been entrapped in a crime manufactured by the government, the government counters with the claim that the defendant was 'predisposed' to commit the crime, which would negate the entrapment defence."

On January 25, the Nato 3's lawyers filed a motion in the Circuit Court of Cook County, Illinois, challenging the constitutionality of the state's terrorism law. If the court agrees with them, the defendants will be charged with possession of explosives but will no longer face a 40-year prison sentence for terrorism.

While the Illinois court should find the law unconstitutional, the truth remains that the nebulous but potent charge of terrorism has been used to systematically curtail justice. In the words of Glenn Greenwald:

"It's just a manipulative slogan legitimising all forms of American violence against Muslims and delegitimising any acts meaningfully impeding US will."

As a New York Court of Appeals decision admitted last December, there is no real definition of terrorism beyond our "collective understanding" of it. But in the term's meaninglessness lies its limitless power to undermine justice everywhere.

Charlotte Silver is a journalist based in San Francisco and the West Bank. She is a graduate of Stanford University.

Follow her on Twitter: @CharEsilver