Taking Liberties: The War on Terror and the Erosion of American Democracy (7 page)

The material witness statute
²¹
was designed to ensure that key witnesses who are about to flee the jurisdiction will be available to testify at a trial. But in the heat of the hunt for terrorists in the fall of 2001, that statute was pressed into service and used as a pretext in this and dozens
of other cases to lock people up on the basis of hunches, biases, and flimsy evidence. Jose Padilla, the alleged “dirty bomber” apprehended at O’Hare airport, had been arrested as a material witness before he was declared to be an enemy combatant and then finally prosecuted and convicted of the crime of conspiracy to provide support to terrorists. One early target of the newly expansive use of material witness laws, the unluckily named Osama Awadallah, was ostensibly being held—under brutal conditions
²²
—so that he could testify before a grand jury and tell them what he knew about terrorism. The District Court agreed with Awadallah’s argument that the statute was never intended to allow locking up people at length so that they could testify before grand juries, which can meet for many months on end. But New York’s Second Circuit Court of Appeals disagreed, allowing the material witness statute to be used expansively (although stopping short of authorizing pretextual detentions), and the Supreme Court declined to review that decision.
²³
Of approximately seventy people detained as material witnesses in terrorism cases, over half were never called to testify at all.
²⁴
The cooptation of this statute as a preventive detention tool is typical of the improvisatory mind-set of the fall of 2001—addressing what was viewed as an emergency situation by adapting laws intended for other purposes without seeking actual legislative changes. Congress did not design the material witness statute as a preventive detention dragnet, but it has been used in that manner and Congress has not reacted to disavow this executive branch retrofitting of the law. The Attorney General had resorted to this form of self-help because Congress had refused to authorize the arrest or detention of United States citizens without probable cause. During the Patriot Act debates, Congress had been willing to allow preventive detention only of
non
citizens for a maximum of one week before the government would be required to show probable cause for an arrest.
²⁵

The agents who stretched the material witness statute to capture Abdullah al-Kidd also stretched some facts. The affidavit the government filed to apply for a material witness arrest warrant said, “Kidd is scheduled to take a one-way, first class flight (costing approximately $5,000) to Saudi Arabia on Sunday March 16, 2003, at approximately 6:00 EST. … It is believed that if al-Kidd travels to Saudi Arabia, the United States Government will be unable to secure his presence at trial via subpoena.”
²⁶
But what was said to have been a suspiciously expensive one-way airline ticket was actually a round-trip coach ticket that cost one-third as much—$1,700. And the affidavit did not mention that Abdullah al-Kidd was a native-born American citizen, that he had a wife and two children living in the United States,
that he had voluntarily cooperated with the FBI on a number of previous occasions when agents had asked to interview him (he even offered to teach classes to help the agents understand Islam), and that no one had ever told him that his travel abroad might present a problem because his testimony might be needed. There is no need to incarcerate a potential witness if that witness is willing to testify and the material witness statute itself only applies to people who are unavailable. At a court appearance in Virginia the day after his arrest, Abdullah told the judge that he would have cooperated and turned himself in if he had been told that a warrant was being issued—but that didn’t happen. He then asked the court if his testimony in Idaho could be expedited so he could get on with his life—but that didn’t happen either.

Abudullah al-Kidd may never have testified at Sami’s trial, but he is still hoping, years later, that he will be able to testify at the trial of a lawsuit he brought against Attorney General John Ashcroft. The suit alleges that Ashcroft was one of the chief architects of the policy of pretextual misuse of the material witness statute to detain people if no other grounds could be established. He argues that Ashcroft’s policies unconstitutionally created an end run around necessary Fourth Amendment protections. His lawyer, Lee Gelernt of the ACLU, says, “Deciding to sue the federal government in a 9/11 case takes a lot of courage and I have seen that in Abdullah over the past five years. I have also seen how much he not only wants to vindicate his own rights, but to ensure that no other person in the future is subjected to what he endured.”

The Bush and then Obama Justice Departments responded that the Attorney General should be immune from any lawsuit on this subject. The full Ninth Circuit Court of Appeals (which sits in California but covers other states including Idaho), just about evenly divided, voted to deny Ashcroft’s request for dismissal and to allow the case to proceed.
²⁷
The Obama Administration then asked the Supreme Court to review that decision, insisting that the case should be dismissed. Like their Bush-era predecessors, the Obama lawyers are demanding discretion to decide when and for what purposes to use the material witness statute and do not want anyone to hold them accountable for their decisions. “One aspect of this long litigation that has been frustrating is the degree to which the positions of the Bush and Obama Administrations are virtually identical,” says Gelernt. The Supreme Court agreed to take the case
²⁸
and heard argument on March 2, 2011. The Court has not yet reached a decision as this book goes to press. If the cases discussed in
chapter 11
give any indication of
the Court’s attitude, it will be surprising indeed if a majority of the Justices agrees to let al-Kidd’s lawsuit proceed rather than finding the Attorney General immune.

The Material Support and Material Witness Dragnets

The prosecutors’ view in Sami’s case was that they knew better than the First Amendment; in Abdullah’s case, they thought they knew better than the Fourth Amendment. Both Sami and Abdullah were caught in dragnet statutes broad enough to allow their use for preventive detention—to lock up people whom the government does not have enough evidence to prosecute but who are regarded as suspicious primarily on the basis of their associations
²⁹
and their religion. This should be unconstitutional, but the courts, as will be described in the next chapter, have upheld broad interpretations of the material support laws, just as the Second Circuit upheld a broad interpretation of the material witness law. This is why Sami had to rely on a jury—as did many others, including Americans, who were accused of material support. The elastic material support laws, although they had rarely been used pre-9/11, quickly became one of the most popular tools for prosecutors in terrorism cases.
³⁰
The Patriot Act’s expansion of material support laws was part of a repurposing of the criminal law to prevent terrorism, rather than to punish acts that have occurred. This attempt to shift the criminal law to a “prevention paradigm”
³¹
has created innumerable due process problems. Prediction is a far more unreliable basis for punishment
³²
than proof that someone has actually committed a terrorist act, or attempted or conspired to aid terrorists (all of which are crimes under pre–Patriot Act law). But an expansion that may seem plausible in the abstract may look different seen up close. The conviction rate on the kind of material support charge brought against Sami is surprisingly low, suggesting that other juries may share the skepticism of John Steger and his colleagues about these attempts to condemn people for remote or speculative connections with terrorism.
³³
According to one study, only about a third of material support charges under these statutes resulted in convictions, although about half of the cases in which those charges were brought resulted in a conviction on another charge.
³⁴
Although material support charges were the top charges in 162 federal prosecutions brought between 2001 and 2006, they were the top charge in convictions in only eight cases during that period.
³⁵

Sami’s case reflects another popular approach prosecutors use when they suspect noncitizens but lack sufficient evidence to bring a terrorism-related
charge: using immigration law in the same opportunistic manner prosecutors used tax law against Al Capone.
³⁶
The number of immigration prosecutions has skyrocketed since 9/11 under both Bush and Obama.
³⁷
But studies show that the number of prosecutions considered to be terrorism prosecutions has steadily declined each year since 2002.
³⁸
Perhaps prosecutors have gradually realized that bringing a large number of prosecutions will not make us any safer if the wrong people are being prosecuted.
³⁹
Some would like to attribute the fact that there has been no major terrorist attack recently to the success of our post-9/11 enforcement strategies, like aggressive use of broad material support laws. A September 2009 report of the Transactional Records Access Clearinghouse (TRAC), which studies criminal prosecution data, responded:

[T]he picture that emerges from TRAC’s examination of extensive government records—agencies continuing to waste their time on investigations that go nowhere, prosecutions that ultimately result in minimal sentences—strongly suggests that this may not be the case. Whatever the ultimate judgment on the broader question, there can be little doubt that the unfocused, wandering and erratic federal effort, revealed by TRAC’s careful review of hundreds of thousands of records, could be significantly improved.
⁴⁰

The 9/11 Commission staff noted another obvious problem with the breadth of the material support dragnet—the strong potential for religious profiling in prosecutions that are not based on hard evidence.
⁴¹
The idea that vague laws invite discriminatory treatment of Muslims finds confirmation in the experience of Sami al-Hussayen. It seems that federal agents were apt to view innocuous facts as damning because the conclusion that Sami was another Osama bin Laden conformed to a stereotype of Saudi Muslims, and the facts were interpreted to fit that conclusion.

The same can certainly be said of the material witness laws—they invite discriminatory as well as pretextual use. Yet Obama Administration lawyers continued to argue against Abdullah al-Kidd’s lawsuit because they too evidently wanted the option of employing this kind of preventive detention. They trust themselves to avoid religious profiling and to avoid First Amendment–hostile prosecutions like Sami’s. And so they argue to keep these weapons loaded.

2.
“Foreign Terrorist Organizations,” Humanitarians, and the First Amendment

We’ve come to love our fears more than our freedoms.
—Rep. Dennis Kucinich (2010)
The vague language of the [material support] law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.
—Former President Jimmy Carter (2010)

The Iranian Democrat

Roya Rahmani is the pseudonym of an Iranian refugee who is terrified that her family and friends in Iran will suffer retaliation if her actual identity were to become known. Iran treated her as a criminal for supporting an Iranian pro-democracy movement—and so has the United States of America.
¹

Roya was seventeen years old when the Shah of Iran was deposed, thanks in part to the work of a group known as the PMOI (People’s Mujahedin Organization of Iran—also sometimes called the MEK), whose members Roya regarded as heroes. Like her compatriots, she hoped that life in Iran would get better. Instead, within a few years, the new regime shut down the universities, the newspapers, and all channels of political protest. Roya had expected to study at a university like other members of her family, but that was no longer a possibility. So she decided to support the PMOI, which continued to protest the repressive measures of the Ayatollahs. Her determination to fight for democracy did not waver even when people delivering the PMOI’s newspaper began to suffer attacks and when supporters were jailed, tortured, and even executed. The choice, she says, was “to surrender to the religious theocracy or to fight, as we had against the Shah.” “I was inspired by their heroism,” she says, “and I thought, give me freedom or give me death.” She was also impressed by the fact that even as the government’s crackdown became increasingly brutal,
the PMOI remained committed to a peaceful struggle for regime change. She attended rallies and worked to educate other Iranians. But then her brother was arrested and executed. And then she herself was arrested and jailed—for the crime of “waging war on God.” “I still get shivers through my body when I think about those years,” she says. For three and a half years in jail, she suffered psychological and physical brutality, having the soles of her feet and legs flogged until she could not walk. She heard the screams of other prisoners and had difficulty sleeping in cells so crowded that it was not even possible to sit down. Women, she says, were regarded as “fair game.”