By Linda Schade The US Justice Department and the Federal Bureau of Investigation (FBI) have committed a wide range of human rights violations in post 9-11 terrorism prosecutions, according to a report released yesterday by Human Rights Watch and Columbia Law School’s Human Rights Institute.
International and U.S. law require impartial investigations and judges, fairness and due process and humane treatment of those convicted. However, in an examination of 27 federal cases, the report entitled Illusions of Justice: Human Rights Abuses in US Terrorism Prosecutions found – among other disturbing findings – a pattern of discriminatory and overly aggressive investigations and prosecutions including the use of informants, targeting ‘suspects’ based on religious and political beliefs, and entrapping and sometimes coercing otherwise law-abiding people who would not have engaged in criminal activity without informant manipulation.
Traditional practice requires that a suspect be offered an opportunity to commit a crime such as when an undercover agent propositions a client, when posing as a sex worker. However HRW found that in many FBI sting operations, agents ‘carefully laid out an ideological basis for a proposed terrorist attack, and then provided investigative targets with a range of options and the weapons necessary to carry out the attack’ thus fabricating completely the target’s interest in terrorist conduct.
Quoting former FBI agent Mike German from the report, “When the FBI undercover agent or informant is the only purported link to a real terrorist group, supplies the motive, designs the plot and provides all the weapons, one has to question whether they are combating terrorism or creating it.” Add in the tendency to target mentally or financially vulnerable individuals and equip agents with large sums of money to wave around and you’ve got yourself a fresh statistic to bolster your budget and justify your agency’s existence.
It is permissible under U.S. law to raise ‘entrapment’ as a defense IF it can be shown that the government induced the defendant to commit the act and if he can show he was not ‘pre-disposed.’ It is easy to see how racism, heightened post-9-11 fears and anti-Islamic sentiment would make such a character defense difficult if not impossible. Illusions of Justice found a range of other human rights violations including the use of confessions obtained under torture, abusive use of years of solitary confinement BEFORE trial and after conviction, and ‘use of overly broad material support charges, punishing behavior that did not demonstrate intent to support terrorism’.
HRW reports that the largest share of convictions in terrorism-related cases since September 11 have been based on material support charges. One disturbing and high profile example of using material support charges to prosecute based on political belief is the case of Dr. Sami Al-Arian, a professor of engineering at the University of Southern Florida. The prosecution’s case hinged on phone conversations Dr.Al-Arian had with the Palestinian Islamic Jihad (PIJ) prior to its designation as an Federally-designated Terrorism Organization; ‘prosecutors then relied heavily on evidence of Al-Arian’s political views to convince the jury to convict him without establishing a link to any specific act of violence (p. 6 Executive Summary)’.
There is no doubt about the chilling effect that these abuses have on the Muslim-American community and their Constitutional right to dissent. Have a problem with your houses of worship being infiltrated by hostile racist law enforcement? You must be a terrorist. Have an opinion about the Israel/Palestine nightmare? You are – somehow – a serious threat to U.S. national security. But don’t worry! In case you have no political opinions, you still have a chance to be among the FBI chosen ones. HRW found that in some cases agents find their marks by hanging around outside mosques and throwing out inflammatory statements at passers-by until someone engages.
‘Random’ is the word that comes to mind and one example cited is the so-called Newburgh Four which is an entrapment case so tragic that DDF published a comic book about it as an educational resource aspiring to save others from the same fate. HRW has made a persuasive case that terror prosecutions based on religious and political profiling are rife and that the consequences for the accused, for human rights – and for dissent – in the United States are highly troubling.
Throughout the report’s detailed recommendations to the President, Congress, FBI, DOJ on down, HRW urges that investigations must not be made ‘on the basis of religious behavior, political opinion, or other activity protected by the right to freedom of expression under international law’. And then there’s that pesky First Amendment. DDF joins HRW’s urgent call for reform. In this writer’s view, in light of the evidence, perhaps all post-9-11 terror cases should be reviewed – and sentencing reconsidered – given the kinds of unlawful manipulation, bias, over-prosecution and sentencing that now define U.S. security practice.