Wadie E. Said, Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions. New York and Oxford: Oxford University Press, 2015.
Jadaliyya (J): What made you write this book?
Wadie E. Said (WES): After working on United States v. al-Arian, reported to be the largest terrorism prosecution in US history, I felt that several of the issues we had litigated remained unresolved from a legal perspective, as well as that of fundamental fairness. A criminal prosecution is not the best forum to continue to argue, for example, that your client is being selectively targeted by the government on account of his race, religion, or political views, once the court has ruled against you. However, the more I looked into the history and legal basis for what the government was arguing, the more I became convinced that it was basically trying to institute a kind of “terrorist exception” to the normal rules of criminal practice.
As I researched further, I realized that this basic posture permeated every aspect of criminal prosecutions of those individuals the government charged with terrorism-related crimes. Additionally, the government had articulated a need for preventive prosecutions that stopped terrorism before it could occur. That in turn necessarily required viewing any danger as highly inchoate and the FBI stepping in much earlier than it usually would in an ordinary criminal prosecution. Viewing a threat so broadly naturally lends itself to mistakes and government overreaction. So what I originally envisioned as a kind of academic interest that might generate an article or two suddenly became a multipart series of articles on a wide range of topics that easily lent themselves to a book-length treatment.
I felt that pursuing this scholarly track was particularly important in light of the fact that the criminal model has been repeatedly and uncritically touted as the far preferable alternative to the military commission model advocated by the Department of Defense. My opinion was, and remains, that such a position must be challenged, particularly in light of what we know so far about the criminal model and what I perceive to be a false choice between it and military commissions, which have been subjected to far more scrutiny.
J: What particular topics, issues, and literatures does the book address?
WES: The book, which is the first study of its kind, takes up the major topics raised in criminal terrorism prosecutions in US federal court. It is primarily an academic legal study, although it is written with a general audience in mind, and is intended to appeal to both specialists and people without any legal background. Proceeding in a linear fashion, it begins at the investigatory phase, and then goes on to consider the main statutory basis for a prosecution, issues of evidence, and then finally sentencing and confinement. Specifically, the book starts with a detailed look at the phenomenon of using informants to bring prosecutions, based not on any individualized suspicion of a particular defendant, but rather on Muslims’ supposed general proclivity for being “radicalized,” which is a convoluted, speculative, and borderline nonsensical theory created to mask what looks like impermissible religious profiling.
The main statute for bringing these prosecutions, the criminal ban on providing material support to designated foreign terrorist organizations, does not require any link to an act of violence, and even goes so far as to criminalize material support in the form of speech. The FBI can deviate from the required Miranda warnings in a terrorism investigation if it feels that a suspect has evidence about an impending attack and also if it thinks that intelligence value can be derived from further interrogation. All these decisions are made at the FBI’s discretion, without a need for court approval. During trial, courts have disregarded or downplayed crucial rules on the admission of evidence to allow the introduction of highly provocative types of proof, such as videotaped interviews with Osama Bin Laden, when the charges against a defendant were not related to al-Qaeda. Even after a conviction, a terrorism defendant can be subjected to much longer sentence than his actual crime warrants, on the basis of a special sentencing “enhancement,” which goes against the Supreme Court’s sentencing jurisprudence over the past several years, as it allows a judge to make determinations not found by a jury or admitted in a guilty plea.
Finally, the book looks at the creation of special prison units for terrorism defendants, where their communications with the outside world are much more circumscribed than those of ordinary federal prisoners. This is true even when they have been classified as minimum security prisoners who do not constitute a threat to the welfare of the prison staff or other inmates.
J: How does this book connect to and/or depart from your previous work?
WES: This book essentially builds on my work over the last decade covering these issues in great depth via a series of law review articles. I have written extensively about the use of informants, the material support law, and sentencing enhancement, for example. The book gave me a chance to put together all these issues and draw the appropriate links behind the government’s practices at all phases of a terrorism trial. At its essence, the government seems to be arguing that because a defendant has been charged with terrorism-related crimes, the normal rules of criminal law and procedure should not apply, as the threat to national security justifies an exception. Of course, when defendants are being charged based partly on their opinions, and are subject to a law requiring no link to any violence, with their religious or ethnic background representing a strong consideration as to why the government targeted them, I think we have to investigate these practices more thoroughly. This book is my attempt to do so.
J: Who do you hope will read this book, and what sort of impact would you like it to have?
WES: I hope this book is read by the general public, but also by academics and lawyers of all stripes, as well as activists and concerned citizens who should consider the impact of these practices as they bleed into other types of criminal prosecutions. For example, the use of informants and undercover police has expanded widely in many contexts, reaching Occupy activists and the Black Lives Matter movement. By adopting a preventive model of prosecution and using a material support law that sees support in the form of speech as a crime, the government is articulating a model that might subject domestic social movements to the criminal process on an expansive basis. This is something we need to be concerned with.
I am less interested in hoping to convince government actors to change their practices, as I am not sure reasoned argument and debate will have that effect. My main goals are to provide the basis for solid legal arguments to counter what I consider overreaching government practices, as well as to demonstrate how the terrorism prosecution phenomenon fits into the framework of other social movements, so that people can perhaps mobilize against these practices on the local and national level. In the international context, I would hope that readers see the harms in having other countries adopt the practices and rulings terrorism prosecutions have engendered in the American arena.
J: How does your book contribute to or diverge from previous scholarship on crimes of terror?
WES: As I mentioned, this is the first book of its kind. There have been studies and reports on terrorism prosecutions by human rights organizations, but no academic studies that discuss these developments—specifically the pervasive role of terrorist exceptionalism in the criminal process—to the degree that I have in this book. There have also been several academic studies of some phenomena, such as the material support ban, but again, those have been limited to one or other discrete issue. The book attempts to draw the link between all these phenomena in a clear and comprehensive manner, in light of the lack of previous scholarship. I felt the need for this book was rather acute, given the large amount of attention—scholarly and otherwise—paid to the admittedly important other “war on terror” topics such as military commissions, indefinite detention, drone warfare, mass surveillance, etc.
Excerpts from Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions
However, the focus of this book is on the distorting effect the terrorism prosecution has had on American criminal law and procedure and how that distortion has disproportionately affected the Muslim community in the United States. To examine properly the institution of the terrorism prosecution, we must understand two critical points that make terrorism prosecutions different from most ordinary criminal cases. First, the emphasis is on preventing acts of terrorism before they occur, according to the Department of Justice (DOJ). In the wake of the attacks of 11 September 2001, the DOJ explicitly adopted this preventive mindset, which has continued to guide terrorism investigations and prosecutions since then.[1] This approach contrasts directly with the pre-9/11 approach, which centered on punishing individuals implicated in politically motivated violent acts that had already occurred. That is not to say that the pre-9/11 cases did not offer much by way of legal innovation, but a prerequisite for prosecution was an act of violence and a link to the United States.[2] A focus on prevention ensures that violence need not occur before the government can charge someone with terrorism-related crimes. Many of the prosecutions examined in this volume across the various chapters should be read with this preventive posture in mind, as it raises real questions about an individual’s dangerousness if the government has to rely on a suspect’s political or religious activity and/or statements to bring terrorism charges before any violence has taken place. Overall, the nature of the terrorism threat—which the government has identified as chiefly a Muslim threat—has been greatly exaggerated, something to which the preventive paradigm has contributed significantly, as between 2001 and 2010 some “94.2 percent of the all the terrorism-related convictions [recorded by the DOJ] have been either preventive prosecution cases or cases that involved elements of preventive prosecution.”[3] Indeed, in many if not most instances, the government played a central role in creating the threat, a fact that raises questions not merely about an individual defendant’s dangerousness but also about the national security-driven need for the erosion of rights courts repeatedly have approved.
The second major innovation concerns the use of 18 U.S.C. § 2339B, the criminal ban on providing material support to a designated foreign terrorism organization (FTO). While the statute’s origins, structure, and litigation history serve as the subject of an entire chapter, it is important to bear in mind that the material support ban constitutes the government’s chief statutory tool underpinning many of the cases discussed in this volume. When Congress passed the law in 1996, it focused on the supposed problem of terrorist groups raising money for violence under the cover of humanitarian activity. Whether or not that concern was exaggerated at the time, the concept of material support centered squarely on tangible contributions of money, weapons, and equipment that aid directly in an FTO’s violent mission. As envisioned, the statute allowed for the prosecution of individuals contributing to an FTO’s efforts several steps removed from violent activity, thereby broadening the concept of terrorism and whom it taints by association. Specifically, even individuals motivated by purely charitable or altruistic concerns were not spared the law’s predations, and several were sentenced to long prison terms. The years since the passage of the ban have seen the courts further widen the concept of material support, to the point where, in 2010, the Supreme Court declared constitutional the statute’s criminalization of the provision of material support in the form of protected speech.[4] So not only is the terrorism prosecution’s aim preventive, with all the attendant difficulty of knowing when an attack is truly thwarted or a dangerous individual actually deterred, but it also relies principally on the concept of material support, a nebulous notion that has the effect of criminalizing association and political/religious affiliation as terroristic.
These innovations have shifted the terms of the debate on terrorism and political violence quite dramatically. The criminal terrorism prosecution, with its primary focus on the Muslim population and its purported potential to churn out radicalized terrorists, has done away with talk of legitimate or justified political violence. Its investigatory techniques and doctrinal developments do not allow for any type of arguments on the nature of a political struggle. Once a group is branded as terrorist, all associations with it carry that label as well, and courts have been quick to adopt the government’s broad view criminalizing such links. Gone are the days when courts would consider the nature of a violent political struggle between a nonstate actor and a nation-state in construing the concept of terrorism.[5] The concept of material support relegates the debate over the contested topic of a universal definition of terrorism and the justice of a particular cause to the sidelines, allowing the government to burrow away, criminalizing more and more tangential links to its increasingly broad concept of terrorism.
Taken in tandem with the preventive mindset of law enforcement and the proactive use of informants and provocateurs, which has seen the government create the threat it subsequently thwarts and prosecutes, the material support ban goes further and allows the government to criminalize charity, solidarity, religious practice, and speech. As opposed to run-of-the-mill criminal cases, terrorism prosecutions are often the product of the government, which creates the plot, relying on a concept of material support liability that is highly inchoate and clashes directly with protected First Amendment rights. This is not to deny the very real criticisms of the modern American criminal justice system, with its myriad injustices rooted in racial and socioeconomic grounds. However, it is clear that people commit ordinary drug, fraud, and other clearly defined crimes and engage in illegal violence with frequency in the United States; the same cannot be said in the terrorism context. Contrast the tens of thousands of standard crimes prosecuted every year with the around five hundred or so terrorism prosecutions that have occurred since 11 September 2001. One estimate of the data is that only one percent of those prosecutions represented an actual security threat, that is, targeted an individual willing to carry out an attack without government involvement.[6] Another more recent study concludes that the real number is three percent.[7] Whichever is correct does not affect the analysis here since the point is that the exaggerated nature of the threat has allowed the government to change the very essence of the criminal prosecution under the rubric of terrorist exceptionalism.
NOTES
[1] Wadie E. Said, “Humanitarian Law Project and the Supreme Court’s Construction of Terrorism,” 2011 BYU L. Rev. 1455, 1479 (2011)
[2] See Wadie E. Said, “The Material Support Prosecution and Foreign Policy,” 86 Ind. L.J. 543, 555 (2011).
[3] Stephen Downs & Kathy Manley, Project Salam, Inventing Terrorists: The Lawfare of Preemptive Prosecutions (May 2014), at 2.
[4] Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S. Ct. 2705 (2010).
[5] In the period between 1980 and 1990, federal courts denied several extradition requests by the British government for individuals suspected of direct involvement in violent attacks against British forces in Northern Ireland, as political offenses that could not serve as the basis for extradition. See Said, supra note 20, at 574–75 n.191 (discussing examples and noting courts’ different approach to British attempts to extradite Irish Republican Army members with Israeli efforts to extradite Palestinians suspected of politically motivated attacks).
[6] Joshua Holland, “Only One Percent of ‘Terrorists’ Caught by the FBI Are Real: ‘The Terror Factory’ Author Trevor Aaronson Exposes the Bureau’s Undercover Sting Operations for the Farce They Are,” Salon.com (10 July 2013).
[7] Jesse J. Norris & Hanna Grol-Prokopczyk, “Estimating the Prevalence of Entrapment in Post-9/11 Terrorism Cases,” J. Crim. L. & Criminology (forthcoming 2015).
[Excerpted from Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions, by permission of the author. © Oxford University Press 2015. For more information, or to purchase this book, click here.]