The law should apply equally to everyone. The 14thAmendment guarantees to all Americans the “equal protection of the laws”. But when we go to war this guarantee is often violated. War means designating an “enemy” to be defeated using every available means including the law. We call this “lawfare” when the law, instead of providing equal protection, is bent to become a weapon of war against a certain targeted “enemy”.
The Japanese internment during World War II is perhaps the clearest example of “lawfare”. 110,000 Japanese Americans, 60% of whom were US citizens, were forced to abandon their homes and businesses on the west coast of America and became internees in concentration camps for years. Although the Supreme Court (in Korematsu v. US, 323 US 214 (1944)) was deeply concerned that this internment of mostly American citizens, some with as little as one-sixteenth Japanese blood, was a racist, discriminatory order which violated the 14thAmendment, the Solicitor General assured the Supreme Court that a classified report by the Department of Defense said that the west coast Japanese represented a security threat to the US. Without having seen the classified report, the Supreme Court upheld the internment order stating that during a national security crisis, the Court should give appropriate deference to the executive branch’s handling of the crisis. Years later, historians found the report and discovered that the overall consensus of security experts was to the contrary; the Japanese-Americans were nota security threat. Apparently, the Solicitor General felt compelled to lie. Truth is generally the first casualty of war…and of lawfare.
After World War II, FBI Director J. Edgar Hoover targeted certain groups, especially black militants and civil right activists, as “enemies” and declared lawfare on them, using fake charges, wrongful convictions, disruptive lies, and even targeted assassinations in a Counter Intelligence Program known as COINTELPRO. Eventually COINTELPRO was exposed, and a congressional committee found that the FBI had essentially waged war on its own citizens in violation of constitutional guarantees. The FBI was prohibited from engaging in such conduct in the future.
COINTELPRO officially ended in 1971 soon after it was exposed. But in the same year, the Nixon Administration started a “War on Drugs”, ostensibly to attack drug addiction, but in fact to continue the lawfare against African-Americans as Administration officials later acknowledged. Thousands of African Americans were targeted and convicted of drug offenses, and the prison population swelled to such a disproportionate extent with black prisoners that we now talk about the mass incarceration of people of color. Michelle Alexander wrote a searing exposé of this in her book, The New Jim Crow. We are still living with the mass incarceration of a whole generation of young men of color, and the devastation that this targeting brought on black communities.
After 9/11, the Bush Administration announced a new war – a “War on Terror”, ostensibly aimed at identifying and convicting a tiny group of “terrorists” that supposedly were loose in the US. The FBI focused on Muslims as the new “enemy”, and the restrictions imposed on the FBI after COINTELPRO were quietly removed. Vice President Dick Cheney reportedly said that if there was even a 1% chance that someone mightengage in terrorism, the government must respond as though it was a certainty. In practice, this meant that it would be better to convict 99 innocent Muslims than to let one potentially guilty Muslim go free. The prisons quickly began to fill up with hundreds of innocent Muslims, who were entrapped or railroaded in the lawfare of the War on Terror.
Many convicted Muslims were sentenced to long years in prison for doing essentially nothing. But in a few cases, courts imposed life sentences (and effective life sentences — sentences longer than the defendant’s life expectancy) on Muslims where either no crimewas committed, or crimes that would normally require minimal or no jail time. These cruel life sentences expose the vicious racial and political bias that underlies lawfare prosecutions. Here are nine of the worst cases of injustice in the War on Terror when the severity of the sentence is considered:
1) The Holy Land Foundation Case (Ghassan Elashi; Shukri Abu-Baker [1]),
On 9/11, the Holy Land Foundation was the largest Islamic charity in the US, focusing much of its charitable efforts on building schools and hospitals in Palestine, and distributing food and medicine to the impoverished people there. The directors of the Holy Land Foundation asked the US government for guidance on avoiding any violation of terrorism funding laws, and were told not to give money to organizations that were on the US list of designated terrorist organizations. The directors scrupulously followed this advice, and distributed charity through local “zakat” committees which were not on the US list, and which were the same organizations used by the US government itself to give aid. Nonetheless, the directors were arrested and charged with material support for terrorism. (For an extensive description of the case, see the 2018 book Injustice: The Story of the Holy Land Five by Miko Peled.)
At trial, the prosecution claimed that some of the zakat committees were “controlled by” Hamas (which is on the US Designated Terrorist Organization [DTO] list.) This claim relied in large part on the testimony of an anonymousand disguisedIsraeli agent who could not be effectively cross-examined because nobody was allowed to know who he was. He actually claimed he could “smell Hamas.” The unfairness of this is obvious. Moreover, since the zakat committees were not on the DTO list, and were used by the US government, how were the directors of the charity to know not to use them? The US government conceded that no Foundation money had actually gone to Hamas but argued that simply building schools and hospitals in Palestine for the impoverished people supported terrorism. How? It “raised the prestige” of Hamas and so constituted material support for terrorism. Two of the directors, Ghassan Elashi and Shukri Abu-Baker, were sentenced to 65 years — effectively life sentences for two middle-aged defendants — for trying to ease the suffering of innocent civilians under Israeli occupation.
After 9/11, the Bush Administration illegally closed most Islamic charities operating in the US as a pretext to prevent the possible transfer of charitable funds overseas to finance terrorism. A number of their directors were charged with pretext crimes including Dr. Rafil Dhafir and Kifah Jayyousi. Although Dhafir and Jayyousi received unfair sentences of 22 and 12 years, respectively, no other charity directors were given effective life sentences like Elashi and Abu-Baker. The sentences appear to be extra punishment for being Palestinian, and as support for Israeli repression of Palestine.
2) Aafia Siddiqui
In March 2003, Pakistani citizen Dr. Aafia Siddiqui (a graduate of MIT, and a PhD in neuroscience from Brandeis University), and her three young children were kidnapped off the streets of Karachi, Pakistan by Pakistani Intelligence (ISI), apparently at the request of the US government. They were “disappeared” for 5 years. We now believe they were held at one or more American black sites, likely near Bagram Air Force base in Afghanistan, and that Aafia was tortured there.
Five years later, in 2008, Aafia and possibly her oldest son Ahmed were found wandering in Ghazni, Afghanistan, and were detained by Ghazni police. (The US government has since refused to release its classified information about where Aafia and her children were imprisoned, under what conditions, and how they were released.)
US soldiers were given permission by the Afghan government to interview Aafia at the Ghazni police station, but they were denied permission to take her into US custody. When the US soldiers arrived at police station, they confronting Aafia, and then shot her twice in the stomach, almost killing her. Then, against orders, they forcibly took Aafia to the US where she was charged with the attempted murder of the soldiers who shot her.
At her 2010 federal trial in New York City, six US soldiers testified that Aafia picked up a rifle that a soldier had inexplicably placed next to her, and fired two bullets at the American soldiers, which missed the soldiers and went into the wall behind them. The prosecution identified two holes in the wall behind the soldiers as being made by the bullets. However, an FBI team who made a complete forensic examination of the room after the shooting, did not find any bullets in the holes. Aafia’s fingerprints were not on any rifle, no shells, rifle bullets, or powder residue from the rifle were found anywhere in the room. Moreover, a photograph, taken beforethe incident, showed the same two holes in the wall behind the soldiers. The testimony of the soldiers was completely refuted by the forensic evidence which proved that Aafia never shot the gun. Yet, given the fear of terrorism surrounding the case, Aafia was convicted anyway. She was sentenced to 86 years – effectively a life sentence – for a crime she could not have committed, and in which nobody was injured except Aafia.[2]
After 9/11, many Pakistani citizens were forcibly “disappeared” by the Pakistani government and many were either killed or sold to the Americans as “terrorists” — often ending up at Guantanamo. Enforced disappearances facilitate torture and murder because no accountability is required of the participating governments. Dr. Siddiqui and her children were victims of enforced disappearance, and should have received assistance and protection, not phony charges to cover up the government’s own crimes. (For more information see: the Aafia Movement .
3) The Fort Dix Case (Mohammed Shnewer; Dritan Duka; Eljivir Duka; and Shain Duka[3])
After 9/11, the FBI began an investigation as to whether a young man, Mohammed Shnewer, might be interested in violent jihad. An FBI informant spent months trying to persuade Shnewer to plan an attack on Ft. Dix in New Jersey, but finally concluded that Shnewer would not act. It was all just talk.
About the same time, the Duka brothers took a family vacation in the Poconos, with their friend Mohammed Shnewer. They made a video of their pillow fights, horseback riding and shooting guns at a public shooting range and later took the video to a store to be copied. The clerk saw images of young Muslims with guns, and reported the Dukas to the FBI. Another FBI informant was assigned to entrap the Duka brothers into planning a violent jihad attack. After months of trying, the informant concluded that the Dukas were not going to do anything either – they were just young men peacefully engaged in their family roofing business, with wives and young children to raise.
Instead of dropping the two failed entrapments, the government decided to combine them into one conspiracy. The FBI informant convinced the Duka brothers that he could arrange for them to buy guns very cheaply so they would not have to wait in line at the shooting range to rent guns. When the guns arrived, the FBI arrested both Shnewer and the Dukas and charged them with plotting an attack on Ft. Dix with the guns. Shnewer was astonished, and said correctly that he knew nothing about the guns. The Dukas, also astonished, said they knew nothing about an attack on Ft. Dix. (Even the FBI informant acknowledged that the Duka brothers knew nothing about an attack on Ft. Dix.) But Shnewer and the Dukas were convicted of a conspiracy that never happened, and were sentenced to life in prison for a criminal plot they had never heard of and thus had no intention to commit.
Conspiracy law is one of the FBI’s best tools to manufacture crimes out of thin air. If the FBI’s “informant” can bring two or more targets together for a conversation about some potential crime which the FBI proposes, and the targets can be pushed to take some small step toward advancing the crime (like buying guns), the FBI will have manufactured an entrapment. Many individuals have been entrapped in this way. (See Inventing Terrorists: The Lawfare of Preemptive Prosecution). But the Ft. Dix case is just one of only a handful of manufactured entrapment conspiracies in which defendants were sentenced to life in prison.[4]
4) Ahmed Abu Ali
While Ahmed Abu Ali. a brilliant young man from Virginia, was attending the Islamic University of Medina in Saudi Arabia on a scholarship, the US government asked the Saudis to question him. The Saudis complied, arresting him while he was in the middle of taking his final exam. Abu Ali, who was just 22-years-old at the time, was held indefinitely without charges and tortured for approximately twenty months. Saudi authorities beat him until he confessed to a bizarre plot to assassinate President Bush and other offenses. Abu Ali was then returned to the US and charged based entirely on his tortured confession. A medical expert on torture physically examined Abu Alion the extensive evidence showing that he had been tortured, but the judge sided with the prosecution’s “expert”, a dermatologist who did not examine Abu Ali, but nonetheless stated that the scars on his back from the beatings could just be normal “skin discolorations”. Abu Ali was convicted based on his own tortured evidence and was sentenced to life imprisonment. (He was originally sentenced to 30 years, but when he appealed his conviction, the 4thCircuit Court of Appeals held that 30 years was not enough, and he was then resentenced to life!)
It has long been a bedrock principle of American jurisprudence that tortured evidence can never be used in a criminal prosecution. Official reports from the American government listed Saudi Arabia as a country that engages in torture, but because Saudi Arabia was an ally of the US, it was a convenient place for the FBI to have suspects tortured when the FBI wanted information. The conviction of Abu Ali, based on evidence that was clearly obtained by torture in Saudi Arabia, is a remarkably cruel, cynical, shameful deceit. That someone could be sentenced to life for such a manufactured crime compounds the shocking nature of the case. The conviction underscores America’s ambiguous relationship with torture. In public, the US government piously declares that it does not torture, while in case after case it instigates torture in private and then looks away, pretending that it just doesn’t see.
5) Ali Al-Timimi
Ali Al-Timimi was a young religious instructor at a Mosque in Virginia. On September 16, 2001, a few weeks after 9/11, a Mosque group that engaged in paintball games and paramilitary exercise, met to discuss the current political situation. No recording was made of the meeting, but several participants later remembered Al-Timimi stating that in his opinion it was permissible for Muslims to fight abroad in Afghanistan to oppose a possible US invasion in response to the 9/11 attack. The group decided to continue their training without any plan to do anything specific, but some members later went to Afghanistan to support the Taliban. Al-Timimi did not participate in these trainings with the paintball group and did not travel abroad. His participation was essentially limited to responding to religious questions during a single conversation after 9/11, giving his opinion that under Islamic law, jihad in support of the Taliban was permitted. (A non-Islamic analogy would be activists asking a lawyer if it were permissible for them to carry weapons to a demonstration, and the lawyer responding that since it was an open- carry state, firearms would be permitted. Would the lawyer be guilty of supporting terrorism for giving that advice?)
Al-Timimi was arrested and charged with Material Support for Terrorism. The government argued that as a religious instructor, Al-Timimi’s opinion amounted to a fatwa, (an Islamic decree), notwithstanding that as a simple religious instructor Al-Timimi had no power to issue a fatwa. He was convicted and sentenced to life imprisonment. Receiving a sentence of life in prison simply for giving a religious/legal opinion, seems grossly excessive in a country like America that guarantees free speech. The life sentence is clearly a punishment for Al-Timimi’s political/religious beliefs rather than for any crime he committed. Many other targets in the War on Terror have been sentenced to jail for their political beliefs,including Yassin Aref, Sami Al-Arian, Tarik Mahana, and Ehsanul “Shifa” Sadequee. But Al-Timimi is one of the few to be given a life sentence solely because of his expressed political/religious beliefs.[5]
* * *
What do these life sentences tell us about ourselves? In none of these so-called “crimes” was anyone killed or injured (except Aafia who was shot), nor was any property damaged, nor was any other injury inflicted. Most defendants had no prior history of violence, nor did any of them have a specific plan to injure anyone before the FBI got involved. Every day rapists, murderers, bank robbers, and other criminals, are sentenced to far less than life, even though victims were murdered or maimed, property was destroyed and communities terrorized. Why then were these Muslim defendants given life sentences when they injured no one?
The life sentences reflect our own overblown fears of Islamic terrorism, not the severity of the crimes. The defendants have become the surrogate “enemy” in a “war on terror” who are punished severely because they, as Muslims, represent that of which we are terrified. In fact, Islamic terrorism represents only a tiny threat to the American public. People have a greater chance of being killed by their furniture falling on them, or by being shot by a policeman, than in an Islamic terrorist incident. Giving life sentences to Muslims who did not injure anyone does not deter terrorism. It simply breeds a sense of injustice and alienation that could actually lead to moreterrorism.
At present some 40 Muslim prisoners who are held at Guantanamo are in an even worse position. They may never have a chance to prove their innocence because they were tortured and the US is afraid that trials would expose the torture which is illegal. The cases have become paralyzed because the US prefers to cover-up its crimes rather than admit to them. Apparently, the US would prefer to simply hold these prisoners until they die, in what amounts to life sentences without due process or any process at all, rather than face its own criminal conduct in a trial process.
The US system of justice, once admired around the world, is now in such a state of disrepute from its own injustices in the War on Terror that other Western countries cannot always cooperate with the US law enforcement, because of the US refusal to acknowledge and end its addiction to torture, prolonged solitary confinement and the death penalty. We have still not come to terms with other injustices from earlier wars, including mass incarceration from the still on-going War on Drugs, and from the COINTELPRO era, including life sentences to targets still in prison like Mumia Abu Jamal (38 years so far), and Leonard Peltier (43 years so far).
In the end, the only point of waging war is to win the peace. After defeating the Japanese in World War II, we formally apologized to the Japanese-Americans whose rights were violated by internment and made token reparations (albeit 40 years later, and only when demanded by victims!). But how do we apologize and compensate people of color and Muslims for the violation of their rights when we still are unable as a country to admit our own racism and Islamophobia? How do we finally win the peace and declare lawfare against our own citizens to be over? Start first with the worst examples of lawfare like the cases profiled here, and finally do justice to them. If we cannot see the injustice in these cases, then we are still blinded by the “enemy bias” that made lawfare possible. But if we can learn to deal with the worst and most obvious cases, then perhaps we will be ready eventually to declare amnesty for all those others still jailed by lawfare, and provide reparations to the victims, and make the structural changes necessary to finally guarantee equal justice for all. Only then will the war be over.
Steve Downs is a defense attorney and board chairman of the National Coalition to Protect Civil Freedoms.
Notes.
[1] Three other defendants in this case were sentenced to 15 and 20 years.
[2] Two of Aafia’s young children, both born in the US, were later returned to her sister who is raising them in Pakistan. The third child, Suliman, aged 6 months at the time of the abduction, is presumed to have died during the kidnapping.
[3] A fifth defendant, Serdar Tatar, was sentenced to 33 years.
[4] Other such sting “conspiracies” where the targets received life sentences although nothing happened include the “JFK Plot” where 3 Muslim men (Abdul Kadir, Russell DeFreitas and Kareem Ibrahim were sentenced to life, when they were entrapped by an informant into a plot to blow up fuel lines at the JFK airport in 2007. Mohanad Hammadi received life in prison for a similar sting operation in Kentucky.
[5] Another life sentence, similar to Al-Timimi, was the “Landmarks Sting”, a pre-9/11 FBI sting targeting the “Blind Sheikh”, Omar Abdel Rahman who died in 2017. An FBI informant created a sting- conspiracy with members of the Sheikh’s mosque to blow up specific NYC landmarks. The government claimed that Rahman’s fiery public speeches supporting jihad in general, amounted to Rahman directing the conspiracy, although Rahman was told almost nothing specific about the actual plot.
