The Rights of the People

by David K. Shipler

  So, America’s sixth major departure from its constitutional principles leaves a formidable tool in the hands of the executive branch.

  Rights advocates had hoped that the entire commission system would be scrapped after Obama took office. They wanted all terrorism suspects tried in civilian courts, an admirable goal not easily achieved, since a lot of evidence had been extracted by torture under Bush. Coerced and therefore unreliable, such testimony or confession would not be admissible in either civilian courts or the revised military commissions. A graphic illustration came in 2010 when a federal judge excluded a key government witness from testifying in the civilian trial of Ahmed Khalfan Ghailani, a Tanzanian accused of conspiring in 1998 to bomb the American embassies in Tanzania and Kenya, killing 224 people. Ghailani claimed that he had named the witness—the man who allegedly sold him the explosives—under abusive interrogation that included torture. These “coerced statements,” Judge Lewis A. Kaplan ruled, had been extracted by violating the Fifth Amendment. Without that witness, the jury saw sufficient evidence to convict Ghailani of only 1 of 286 charges: conspiracy to destroy government buildings and property. Nevertheless, the judge gave him a life sentence.

  Where untainted evidence was unavailable, Obama settled for indefinite detention without charge or trial, spurring two rights organizations to muster 120 former legislators, judges, prosecutors, diplomats, military officers, and government officials to urge the use of federal courts instead of such a “sweeping and radical departure from an American constitutional tradition that has served us effectively for over two centuries.”48

  At first, the Obama administration decided to try five alleged 9/11 plotters in federal court in lower Manhattan, citing the courts’ effectiveness in previous terrorism cases as a means of discovering facts, determining guilt, and setting punishment if warranted.49 Then, in the face of fierce opposition in congress the administration shifted to military commissions. It was a severe capitulation, for the criminal justice system had already worked, albeit unevenly.

  CONSPIRATORS AND WANNABES

  Judging by the major terrorism cases prosecuted from 2001 through 2010, nothing on the scale of 9/11 appears to have been seriously planned, and al-Qaeda seemed uninvolved in most of the fledgling conspiracies, except indirectly as an inspiration, often via the Internet. Perhaps the government was skillful at thwarting plots at very early stages. Perhaps the authorities cast their nets so widely that they scooped up suspicious deviants before they evolved from marginal threats into full-fledged terrorists. Perhaps that is why most of the alleged crimes failed to match the bloated rhetoric that accompanied each arrest. Down in the details of the case, it turned out that wholesale slaughter had not been imminent, and no rampage of Islamic militance had been heroically repelled at the gates.

  Instead, a few bored young men had gone off to training camps, had played paintball to practice battlefield skills, had concocted schemes with government informants, had tried and failed to get into Afghanistan, had broached the sale of a missile to an undercover agent, and had talked delusionally about attacking the Sears Tower in Chicago and John F. Kennedy Airport in New York—embryonic plans without the means of being carried out. Occasionally a plot seemed real, most notably two intercepted bombs flown from Yemen; the attempted car-bombing in Times Square; the would-be airplane bomber from Nigeria, trained by an al-Qaeda offshoot in Yemen; and a Manhattan coffee vendor, Najibullah Zazi, who pleaded guilty to taking explosives training in Pakistan, then accumulating chemicals bought from hair salons to combine into potent bombs.

  The bloodiest domestic incident through 2009 bore no sign of having been organized by al-Qaeda or any other movement. It was the assault on soldiers at Fort Hood, Texas, by an army psychiatrist, Major Nidal Malik Hasan, who killed thirteen in what seemed an individual act sparked, possibly, by a religious radicalization whose indicators had been overlooked by intelligence and army personnel.

  Otherwise, most dire threats were posed by sad-sack wannabes who didn’t seem capable of lighting the right end of a fuse. They might have tried, however, and federal authorities weren’t about to wait and see. A band of immigrants from Albania, Turkey, and Jordan, convicted of plotting to attack the Fort Dix army base in New Jersey, had gone as far as to videotape themselves shouting about jihad and training with automatic weapons in the Poconos. They were undone when they took the tape to be transferred to a DVD; a store clerk alerted the police, who called the FBI, which then infiltrated the group with two informants. Their “plan,” to get onto the base as pizza deliverymen, envisioned a shootout followed by a miraculous escape.

  In other cases, the government stretched the statutes to criminalize behavior that might have been ignored before September 11. Using asset-forfeiture laws, the Justice Department shut down a few Islamic charities by seizing funds, and prosecuted individuals for funneling contributions to Hamas and other groups on the government’s terrorist list—contributions that ostensibly had gone for the organizations’ humanitarian programs.

  The zone of free speech shrank somewhat, bringing unwelcome FBI interest in comments that might ordinarily have been heard as extreme but benign, as acerbic political statements or ideological preaching, but not as threatening. Several people used rhetoric that may or may not have incited fellow Muslims to violence, and federal authorities persuaded courts that such exhortations lay outside the First Amendment’s protections. The most dramatic case ended with a life sentence for Ali al-Timimi, a cancer researcher who had earned a reputation as an erudite lecturer on Islam. Five days after September 11, he had spoken about jihad, as holy war, at a small dinner of young Muslims, some of whom then went to training camps of Pakistan’s Lashkar-e-Taiba (Army of the Pious), which had conducted attacks on the Indian presence in disputed Kashmir.50

  Beneath the public trials and beyond America’s international frontiers, the drone attacks near the Pakistani-Afghan border, along with clandestine kidnappings, captures, and “renditions,” apparently disrupted al-Qaeda’s capacity to organize. While terrorism exploded in other parts of the world, and the wars in Iraq and Afghanistan drew jihadi fighters like moths to the flame, American soil stayed mostly free of attacks in the seven and a half years from September 11, 2001, through the end of Bush’s tenure. He and his subordinates used that fact to justify their extralegal measures.

  Therefore, the relatively innocuous cases that juries saw may have distorted some larger, hidden reality that never got to court. Some defendants seemed more misguided than dangerous. Some of the conspiracies exposed in public trials looked synthetic, staged by FBI undercover agents or facilitated by unsavory criminals who worked as informants on the FBI’s payroll. In 2009, for instance, agents posing as al-Qaeda operatives performed two separate capers in Illinois and Texas on two men who had been targeted after their online and written statements favoring terrorism had been picked up by surveillance. The FBI led the men to think they were planting car bombs—one near a federal courthouse in Springfield, the other beneath an office building in Dallas—but the explosives were fake, and when the men punched numbers into their cell phones to trigger the detonators, there were no booms, just busts.51

  To some jurors, more discerning than those who convicted the Detroit “sleeper cell,” evidence in certain prosecutions appeared thin and speculative. It took three trials and three juries for the government to win its case against a Miami group in the impoverished neighborhood of Liberty City. In his long robe and cap, the leader, Narseal Batiste, seemed more of a poseur than a terrorist. He called men “brother” and recruited a following to a quasi-religious cult that met in a warehouse, with more than religion in mind.

  Most were Haitian-Americans or Haitian immigrants. They were either approached, infiltrated, or manipulated by an Arabic-speaking FBI informant pretending to be a representative of al-Qaeda. Around him they wove a web of grandiose fantasies, and he recorded their blustering. He led them in a pledge of allegiance to al-Qaeda and bin Laden. He taped Bat
iste boasting that they would start a “full ground war” against the United States by destroying Chicago’s 110-story Sears Tower and bombing FBI offices in five cities. “I want to fight some jihad,” Batiste was heard saying at one point, to “kill all the devils we can.”52

  A senior FBI official called the plot “more aspirational than operational,” a phrase then frequently applied to other conspiracies.53 It contained plenty of words but no weapons, no explosives, and no actual contact with the real al-Qaeda, making the charge of agreeing to provide material support to the organization “a manufactured crime,” in the view of Batiste’s attorney.54 The Chicago police superintendent, Philip J. Cline, said that there was “never any imminent danger to the Sears Tower or to the city of Chicago.”55 Attorney General Alberto Gonzales saw a larger pattern, declaring ominously, “The convergence of globalization and technology has created a new brand of terrorism. Homegrown terrorists may prove to be as dangerous as groups like al-Qaeda.”56

  To prove conspiracy, prosecutors have to show that the defendants not only talk among themselves but take at least one overt action, which can be as simple as picking up the phone or walking across the street to a meeting. The actions in this case were numerous. The defendants photographed government buildings and a synagogue as potential targets, the government charged. They asked the “al-Qaeda representative” to train their “soldiers” and requested that he provide them with boots, binoculars, uniforms, radios, vehicles, bulletproof vests, automatic weapons, and $50,000 in cash. Batiste, who testified in all three trials, insisted that the money was to be used for his construction business and community-improvement projects. He seemed to think he was fooling al-Qaeda when, in fact, the FBI was fooling him—a play within a play.

  The first jury acquitted one of the seven defendants and could not agree on the other six. A year later, the second jury deadlocked too, forcing a second mistrial. In the third year, the third jury finally found unanimity, acquitting one and convicting the remaining five, including Batiste. He received thirteen and a half years, the others, four to eight.57

  Sting operations, infiltrations, and informants have been responsible for a good many counterterrorism prosecutions, raising the possibility of entrapment. That happens when a crime is proposed either by a law enforcement officer working undercover or by a citizen informant—usually a criminal looking for leniency—who pretends to be one of the boys while wearing a wire or a tiny video camera. Informants are often ill-trained and sloppy. By contrast, sworn officers who infiltrate violent movements are supposedly trained to pose as willing participants but not as initiators—a careful balance to protect themselves from discovery and the legal case from collapse. “You have to let it happen in front of you and just be there as a collector of evidence,” explained Mike German, the former FBI agent and lawyer, who infiltrated white supremacist groups in California and Washington. “Ninety-nine times out of a hundred, your average FBI agent is going to be more honorable than an informant,” who may blur the line between observing and initiating. But arguing entrapment is a hard defense, because a lawyer must show that his client had no predisposition to commit the crime; if there is such predisposition, it is not entrapment when government agents merely provide the opportunity.

  In 2006, in exchange for cash and a reduced sentence, a twice-convicted narcotics trafficker went to work as a government informant. He became intricately involved in wild talk by a circle of Muslim men from Guyana and Trinidad whose conspiracy amounted to a year’s bragging, posturing, and failed efforts to assemble a plot to blow up jet-fuel tanks and pipelines at Kennedy Airport. Whether they would ever have acquired the skills and the explosives remained a question: Law enforcement, monitoring them attentively, closed them down before they advanced beyond the talking stage. Officials then celebrated the disclosure of the plot with a discordant combination of glee, alarm, and reassurance.

  “The public was never at risk,” U.S. Attorney Roslynn R. Mauskopf conceded even after she raised the specter of a fiery demise for the airport and adjacent neighborhoods of Queens. “Had the plot been carried out,” she declared, “it could have resulted in unfathomable damage, deaths, and destruction.” Police Commissioner Raymond W. Kelly chimed in ominously, “Once again, would-be terrorists have put New York City in their crosshairs.” Finally, the assistant director of the FBI’s New York office, Mark J. Mershon, distilled the case into its essential ambiguity: “The ambitions were horrific, the capacities were very limited, but they kept trying. Their signature was their persistence.”58

  The group was a loose assortment of men who barely knew one another, allegedly led by Russell Defreitas, who seemed incapable of leading much of anything. He was a sixty-three-year-old former cargo handler who had been incensed at seeing missile parts readied for shipment through Kennedy to Israel—to kill Muslims, he told the informant, who recorded about three hundred hours of conversation with him. Briefly homeless and sleeping in subway trains, Defreitas had no contact with most of his family, practically no money, no training, and no experience in subterfuge and terrorism. He was semiliterate, his lawyers said, and had a low I.Q. But he had a few contacts in Guyana and was so trusting that he put the informant in touch with them.

  The informant recorded his own phone calls with conspirators there, and he flew down with Defreitas several times for meetings in Guyana, where various men boasted and fantasized about wanting to blow up U.S. helicopters at the airport in Georgetown, to smuggle mujahideen from Asia into the United States, and to fly into Kennedy to execute their attack. One claimed to have a close friendship with a leader of Jamaat Al Muslimeen, a Trinidanian Muslim group that had nearly succeeded in a 1990 coup attempt by attacking the parliament building and taking the prime minister and cabinet members hostage. Contact with the movement was facilitated by a former member of Guyana’s parliament named Abdul Kadir, which made the plot look serious enough for the FBI to buy plane tickets to Trinidad for Defreitas, the informant, and a third man. But their trip failed to interest the group in the Kennedy operation.59

  The informant seemed such a constant presence in the brainstorming and networking that one wonders if the conversations and travel and meetings would have happened without him. In his vehicle, the FBI installed video and audio equipment that recorded Defreitas in a surveillance tour as they drove around the airport, pointing out fuel tanks and escape routes and commenting on security. Defreitas claimed that underground pipelines would erupt in an explosion and damage much of Queens, a threat dismissed as unlikely by experts who noted that the pipes were cut off by safety valves and lacked the oxygen necessary for combustion.

  “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.”60 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.61 Conspiracy can be used only if there’s more than one suspect.62 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 l
ook 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,63 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:

  The term “material support or resources” means currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.64

  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.