They wanted to provide training in peaceful conflict resolution and international law to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), separatist groups in Turkey and Sri Lanka, respectively, and to help them appeal for relief from the United Nations and other international bodies. Both the PKK and the LTTE had done violence to civilians and had been listed by the State Department as terrorist organizations. A majority of six justices in Holder v. Humanitarian Law Project argued that even advice on nonviolent methodology could enhance the organizations’ standing and further their activities, which included the tactic of terrorism.
“Such support frees up other resources within the organization that may be put to violent ends,” wrote Chief Justice Roberts in an opinion that read more like a policy paper than a constitutional analysis. “It also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.” The skills the American organizations wanted to impart could be used by the PKK “as part of a broader strategy to promote terrorism,” he said. “The PKK could, for example, pursue peaceful negotiation as a means of buying time to recover from short-term setbacks, lulling opponents into complacency, and ultimately preparing for renewed attacks.”
Having made the case, however, Roberts then urged judicial deference to the other branches. “Congress and the Executive are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not,” he declared.
As we have seen, curbing Americans’ speech and association during wartime has been a dishonorable tradition from the early days of the republic. This case continued the pattern. Although the decision affected only a few people and organizations, and focused narrowly on the specific training that they had proposed, the ruling illuminated the war mentality that had penetrated the country, and showed how embedded it remained nearly a decade after the 9/11 attacks.
The Court did draw some limits around its findings. It held out the possibility that future applications of the material-support statute could violate free speech, without saying what they might be. It found no First Amendment violation in this instance, because the law does not bar individuals from saying “anything they wish on any topic,” as Chief Justice Roberts wrote. It criminalizes neither “independent advocacy” nor outright membership in such organizations, he said, unless the listed group directs or coordinates with the advocate.65
Yet the ruling precludes the peacebuilding that many American humanitarian groups attempt. It has been common for nongovernmental organizations based in the United States to work in countries torn by civil wars, usually as the conflicts show signs of ending, to promote democratization and civil society. This will now be legally risky, perhaps impossible, unless prosecutors look the other way and human rights advocates ignore the law, as both sides have mostly done in the past. The State Department has typically been slow to remove certain movements from the “terrorist” list after violence has subsided. The Nepali Maoists remained designated long after they had ceased fighting and had become the largest party in a freely elected government; being on the list hampered even American diplomats who needed to deal with Nepal’s Maoist prime minister. Nelson Mandela’s African National Congress was designated because of the violence to which it finally resorted in its struggle against apartheid in South Africa, notwithstanding Mandela’s inspirational leadership in healing racial wounds.
Congress could fix the problem if it were so inclined. As the Court observed, to prove a violation under the existing statute, prosecutors must show only that the trainer or adviser knew that the organization appeared on the terrorist list, “without requiring the Government to prove that plaintiffs had a specific intent to further the unlawful ends of those organizations.” If that requirement to show specific intent were added to the law, pro-democracy and conflict-resolution work could presumably go ahead.
The solution has a pitfall, however: To assess intentions, investigators would have to examine the content of speech, often very private speech. They have already done so in numerous cases to determine whether suspects have intended to support groups that engage in terrorism.
Suspicions about the Portland Seven were generated largely by inflammatory statements that one of the group, Jeffrey Battle, thought he was making in private, and which the government cited to characterize the men’s intentions. It made you think that every kid in America should be Mirandized: Anything you say anytime, anywhere, can and will be used against you in a court of law. Sami Omar al-Hussayen, a Saudi, was tried for designing Web sites allegedly to recruit terrorists. The jury found him not guilty, but he agreed to deportation. Strident support of the Palestinian cause brought unwanted attention to a Florida computer science professor, Sami al-Arian, who was accused of giving material support to Palestine Islamic Jihad; the jury acquitted him on most of the charges and deadlocked on the rest.
Once speech is followed by action, federal authorities have been eager to move, as when young Muslim Americans have gone off to camps in Pakistan or Afghanistan. The FBI hasn’t been charmed by their claims of charitable impulses or religious awakenings or even second thoughts, although their true objectives often seem murky and confused.
Some young people seek adversity as a challenge to test themselves or to find themselves. Some feel like outsiders in the United States, which they believe devalues their heritage. Some mix dogmatic ideology or divine purpose into a quest for identity that can take them into fierce pride, even violence, as they attach to a cause larger than themselves. So it has been for whites who join supremacist militias, African-Americans who espouse black separatism, American Jews who confront Arabs in the West Bank, and American Muslims who venture into the wars being waged on behalf of Islam.
These are not parallel behaviors, but they come from similar roots of disaffection. Militant black movements in the United States have been largely nonviolent, notwithstanding some of the rhetoric. American immigrants to Israel usually find fulfillment being Jewish in a Jewish state without attacking Palestinians, despite a scattering of zealots who define religious virtue by doing so. Similarly, only a tiny percentage of Muslims in America have been drawn to militant callings for jihad—meaning not just the inner struggle for purity that the word conveys, but also the outer struggle of arms. It is no accident that some of them, including most of the Portland Seven who tried to reach Afghanistan, are also African-American converts to Islam, carrying a double stigma and a dual mission.
If those who gravitate to terrorist movements begin as souls adrift, they may naturally seem lost and harmless. To prosecute them preventively before terrorism is committed can look faintly ridiculous, especially when they’re so directionless that no self-respecting al-Qaeda cell would trust them. That does not mean that they cannot shoot a gun or plant a bomb, however, and vulnerable personalities seem drawn to the sense of purpose and belonging that a movement provides. So they have naturally become targets of the government’s post-9/11 preventive efforts.
In the spring of 2001, a few months before al-Qaeda struck and the Taliban suddenly became the active enemy,66 seven Yemeni-Americans from Lackawanna, New York, went to Afghanistan for six or seven weeks in search of something religious, something political, perhaps something violent. Then all but one came quietly home, raising intense suspicions that they had been molded into a sleeper cell. They had allegedly been recruited by a man who had trained in al-Qaeda camps and fought with Muslims in Bosnia.
Their motivations remained obscure, but according to the attorney Kenneth Ballen, who has researched terrorism, they may have been inspired partly by a sermon given by a confused soul with heroic dreams, Jumah al-Dossari. Recruited by a Saudi fighter from Bosnia, he reportedly told them, “Muslims are dying, and we’re not doing anything about it. We must stand up for our broth
ers. We must stand up and defend Islam.” Leaders of the mosque where he spoke, offended by his radical preaching, told him to get out of town. Unfortunately, some of his young listeners got out as well, ending up in Afghanistan.67
Weapons training excited some, and they received instruction in firearms, rocket-propelled grenades, land mines, plastic explosives, and camouflage. Sahim Alwan, who told The New York Times that he had been driven there by “a lot of curiosity,” soon realized he was in too deep, and decided to leave. At first he wasn’t allowed to go. Then he became determined to do so after hearing talk of martyrdom and threats to America from none other than Osama bin Laden, who was also curious and invited him for two private conversations. The al-Qaeda leader asked him how Muslims in the United States felt about suicide missions. “We don’t even think about it,” Alwan quoted himself as saying. Bin Laden smiled.
The FBI, tipped off by an anonymous letter reporting the arrival of terrorists to recruit young men in Lackawanna, zeroed in on the six who had returned, using FISA warrants to monitor them closely and interpreting every e-mail about weddings, meals, and soccer games as code. The CIA saw the group as the “most dangerous” cell in the country, and so the president, vice president, CIA chief, and FBI director were regularly briefed.68 President Bush even considered a proposal by Vice President Cheney to have the military swarm into the Buffalo suburb, arrest the men, and hold them as enemy combatants. The idea, pressed by Cheney’s counsel David Addington, took its authority from a memo by John Yoo of the Justice Department arguing that in wartime, such action was barred by neither the Constitution nor the Posse Comitatus Act of 1878, which usually prohibits the military from domestic law enforcement.
Bush turned down the suggestion after hearing objections from FBI Director Robert Mueller; Michael Chertoff, the head of the Justice Department’s criminal division; and Condoleezza Rice, the national security adviser.69 The FBI then made the arrests in September 2002 and, under the threat of being declared enemy combatants, the men pleaded guilty and were sentenced to about ten years. The recruiter, Kamal Derwish, was killed when a missile from a CIA drone hit his car in the Yemeni desert.
Matthew Purdy of The New York Times put the question nicely: “Were they a cell in a deep sleep, or had their trip to Afghanistan been a bad dream?”70
Dreams and nightmares occupy us now. After the terrorist attacks of 9/11, we accused ourselves of lacking imagination. Most of us had never pictured a few suicidal men armed with box cutters seizing jetliners and bringing down the tallest buildings in New York. We had never fantasized so darkly, and since then we have been encouraged to do so. Through our heads dance the specters of cities stricken by chemical, biological, or nuclear weapons. We imagine. We are wise to imagine, for the threats are not fantasies.
Aggressive investigation is legitimate and necessary, but it creates two hazards: the danger of error in a particular case, and the danger to the country’s larger culture of liberty. As it happens, the framers left us a system both practical and principled, a set of guarantees that protect our rights and simultaneously provide the best possible accuracy in criminal justice. We don’t have to choose, because there is no contradiction. Observing the rights leads to reliability in the process.
While we stay alert by imagining the worst scenarios of terrorism, we might also imagine the sacrifice of our liberties on the altar of security. We face both threats—the risk of being attacked and “the risk of being less free,” in Hamilton’s words. The first step toward preventing either tragedy is vigilance.
EPILOGUE
The High Court of History
We are the people of July 4th—not September 11th.
—Thomas L. Friedman
IN SEARCH OF a shocking metaphor, critics of American policies after 9/11 reached for a Soviet analogy. Harold Pinter, the Nobel Prize—winning playwright, lamented the millions of Americans “imprisoned in the vast gulag of prisons which extends across the U.S.” The University of California Press in 2004 published American Gulag, a book on immigration prisons by Mark Dow. Amnesty International disregarded the cautionary advice of a former Soviet political prisoner, Pavel Litvinov, and in June 2005 called the American prison at Guantánamo Bay “the gulag of our times.”
Later that month, Senator Richard Durbin of Illinois quoted an FBI agent’s memo on seeing Guantánamo prisoners chained in fetal positions and subjected to extreme temperatures. “If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control,” Durbin told the Senate, “you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime—Pol Pot or others—that had no concern for human beings.” After a week of stormy protest, Durbin apologized, saying, “I have come to understand that was a very poor choice of words.”
By the following fall, however, the words had been widely adopted in the wake of The Washington Post’s disclosure that the CIA was operating a global network of clandestine prisons. “Secret, ad hoc prisons that carry a whiff of the old Soviet-style gulags are not the solution,” said USA Today.1 “U.S. MUST DISMANTLE ITS SECRET CIA GULAG,” declared a headline on a Minneapolis Star Tribune editorial.2 In The Oregonian, an editorial called the prisons “America’s gulag.”3 “Gulag,” the Russian acronym for the Chief Administration of Corrective Labor Camps, was made famous by Aleksandr Solzhenitsyn’s trilogy, The Gulag Archipelago.
It would be easier to dismiss these parallels if the Soviet Union still existed as the antithesis of America. The contrasts were profound and obvious then: a dictatorship that filtered ideas, enforced political obedience, and grew from a long authoritarian history—compared with a freewheeling democracy that relished irreverent speech, decentralized its government, and threw its doors open to the world. Russia was a useful foil for America’s virtues, enabling not just our fear but also our pride. We were different, as we could see vividly every day.
Now we can only remember how different we were, and consider how to stay that way. The line between dictatorship and democracy looks so bold and bright. The culture of freedom looks so permanent, the system of protections so unshakable. Americans might be forgiven their complacency, as if it were divinely ordained that the United States should forever guard the liberties of its people.
Yet from time to time the shadows of autocracy flicker across our shining enterprise, casting doubt. Even judges and legal scholars take note and reach for that analogy. After the American citizen Jose Padilla was imprisoned as an enemy combatant, the Yale law professor Bruce Ackerman declared, “Three years of not even being told what the charge against you is, is worthy of Stalin.”4 When Florida police looking for drugs adopted a practice of doing sweeps of buses and trains, checking everyone’s ID and asking to search luggage, a state court said the tactic “evoked images of other days, under other flags,” then thundered: “This is not Hitler’s Berlin, nor Stalin’s Moscow, nor is it white supremacist South Africa.” Nonetheless, the police methods were later upheld by the Supreme Court.5
So when thinking about the Soviet system as a model of what we do not want to become, it is worth asking ourselves what to watch out for.
Major Lev Kopelev of the Soviet Red Army spoke German, the language of the enemy. Captain James Yee of the United States Army spoke Arabic, the language of the enemy. Kopelev tried to stop fellow soldiers from raping and robbing. Yee tried to stop fellow soldiers from abusing and humiliating. Kopelev was arrested on April 5, 1945. Yee was arrested on September 10, 2003.
What happened to each officer in the end, however, marks the distinction between dictatorship and democracy, one that lies less in the impulses and attitudes of people in authority, which can be all too similar in both systems, than in structural bulwarks against the abuse of power. The Soviet Union had no such barricades. Those in the United States are in place, but they wobble at times.
The Soviet major and the American captain both held significant posts. As the Red
Army swept westward toward the close of World War II, Kopelev propagandized German troops with leaflets and loudspeaker broadcasts. He also reported and halted rapes of civilians and looting by his comrades, for which he was charged with showing “pity for the enemy” and being “friendly with spies.”6
Early in the American war on terrorism, Yee served as the Muslim chaplain at the Guantánamo Bay camp holding nearly seven hundred Muslim prisoners. He attempted to stop guards’ violence against inmates and desecration of their Korans. For that, he was accused of having “associated with known terrorist sympathizers.”7
Both the Soviet and American officers were orthodox patriots. Kopelev, a steadfast Communist Party member who revered Stalin, had received a commendation shortly before his arrest. Yee, a West Point graduate in a military family, and a Bush voter in 2000, received the highest possible performance evaluation two days before being taken into custody.8 Kopelev was convicted and spent nine years in the Gulag, where he met Solzhenitsyn. Yee was publicly smeared, spent seventy-six days shackled in solitary confinement, and was ultimately driven out of the army. Both men’s innocent, humane actions, seen by superiors through the lens of wartime fervor, were refracted into behavior that looked suspicious, then subversive, and finally treasonous.
It is not quite enough to say that the American system worked in Yee’s case. Checks and balances were somewhat effective—army prosecutors didn’t have evidence and had to drop the serious charges. But vindictively, they began to try him for possessing pornography and for adultery, an offense for which hardly anyone in uniform is ever prosecuted unless it is accompanied by other criminal charges, such as rape. In full view of his parents, his wife, and his four-year-old daughter, the army put on a female officer who testified to their affair, provoking Yee’s sobbing wife to confront the officer outside the courtroom and shout, “You happy now? Destroying a family?”9
The Rights of the People Page 42