Department of Pre-Crime

February 29, 2008

By Eric Umansky

News: Why are citizens being locked up for "un-American" thoughts?

Illustration by Brian Stauffer

When Attorney General Alberto Gonzales held a press conference in the summer of 2006 announcing the arrests of seven young men for plotting to bomb Chicago's Sears Tower, he sounded defensive, his voice lingering a beat on each thing the men allegedly did. "Individuals here in America made plans to hurt Americans," he claimed. "They did request materials; they did request equipment; they did request funding." Gonzales admitted that the American and Haitian-born men posed "no immediate threat." But, he warned, "homegrown terrorists may prove to be as dangerous as groups like Al Qaeda. Our philosophy here is that we try to identify plots in the earliest stages possible, because we don't know what we don't know about a terrorism plot." It's dangerous, Gonzales added, to make a "case by case" evaluation that "well, 'this is a really dangerous group'; 'this is not a really dangerous group.'"

From the beginning, the allegations seemed bizarre. Allegedly led by Narseal Batiste, an underemployed construction worker, the plotters were an oddball group who dubbed themselves Seas of David. Preaching an eclectic mix of Christianity, Judaism, and Islam, the seven men were known around their neighborhood of Liberty City, Miami, for practicing martial arts and wearing Stars of David. Mostly unemployed and with few resources, they seemed an unlikely bunch to blow up a landmark 1,200 miles away.

The more details that emerged about the case, the fishier it looked. The charges had come about because of a 23-year-old Yemeni clerk named Abbas al-Saidi, who'd been a police informant since he was 16. The fbi helped bail him out when he was in jail facing charges of assaulting his girlfriend. A year later, Saidi returned the favor, telling the feds he'd met a young man—Narseal Batiste—who boasted of wanting to create an Islamic state in America.

The fbi hired Saidi to cozy up to Batiste and his followers, and sent in another informant (also charged with domestic abuse), Elie Assad, to pose as an Al Qaeda financier named "Mohammed." Nearly everything Gonzales said the plotters "did" happened at the urging of the two informants, who reportedly earned about $120,000 from the feds for their help. (Assad, originally from Lebanon, was also granted political asylum.)

After Assad boasted of his Al Qaeda connections, Batiste talked of wanting to play a part, but only if Assad helped him first. Batiste gave the fake financier a long list of desired equipment, including "boots—knee high. Automatic hand pistols. Black security uniforms. Squad cars. suv truck—black color." (Not on the wish list: explosives.) Batiste also said he wanted $50,000, explaining in one taped conversation, "I'm exhausted financially. We have nothing." Batiste's lawyers would later argue that his promises of jihad were merely an attempt to scam "Mohammed" out of the money.

A few of the Seas of David men did recon the fbi field office in Miami. But the mission had been conceived by Assad, the van and a digital camera both provided by Assad—that is, the fbi.

When Assad failed to deliver the cash and with the Seas of David growing increasingly skeptical about his claims, he tried to assuage them by swearing them into Al Qaeda, which he did—in a warehouse rented and wired for video by the fbi.

The oath became the government's piéce de rèsistance. Charging the men with multiple counts of attempting to provide material support and secondary charges of conspiracy—which could bring them each 70 years in prison—prosecutors began their closing statements by playing the tape of the Seas of David swearing allegiance to Al Qaeda. When the video ended, Jacqueline Arango, an assistant United States attorney, told the jury, "Ladies and gentlemen, that is material support."

After deliberating for nine days last December, the jury acquitted one man who'd separated himself from the group and moved to Atlanta. But it deadlocked on the others, and a mistrial was declared. A new trial is scheduled for this spring. Until then the six men are in prison, and they and their lawyers are under a gag order. (The same applies to the acquitted man, Lyglenson Lemorin, who's in detention awaiting possible deportation to Haiti even though he's lived here legally for nearly 20 years. Citing privacy laws, the government will not explain why he is being kicked out.)

"I think it may hang again," juror Delorise Thompkins told the Miami Herald. "You're going to find someone always afraid of terrorist groups, but then when you see the evidence, there's not a lot there—no plans, no papers, no pictures, no nothing connecting them to Osama bin Laden." The jury's ambivalence is understandable. The plots were little more than talk encouraged by informants; the central evidence in the case—the taped oath—was a staged fbi production. But then, whether the men were a threat or the plot real doesn't matter when it comes to the charge of material support.

Material-support laws are not like other laws. Central to what the Department of Justice has described as an approach of "strategic overinclusiveness," they have underpinned many of the government's most controversial criminal terrorism cases, from the so-called Lackawanna Six—young men from upstate New York who trained at, and later fled from, a militant camp in Afghanistan—to José Padilla, the man once accused of being a "dirty bomber."

Indeed, look at the heavily criticized "foiled plot" cases over the past few years—the ones with an informant at the center offering encouragement and often much more—and you'll find material support charges underlying nearly all of them. Material-support statutes have been cited to deny thousands of immigrants—some on the run from actual terrorists (see file of "Kumar the Fisherman," above)—entrance into the country and are offered by the Pentagon as justification for detaining hundreds of people at Guantanamo, many of whom have provided little more "support" than being, for example, conscripted to cook for the Taliban.

There's a reason material support has become such a popular charge, a reason it's central to many of the government's most questionable cases: The laws are a prosecutor's dream. They don't require evidence of a plot or even of a desire to help terrorists. They give the government a shot at convictions traditional criminal laws could never provide. "The administration adopted the preventive paradigm, i.e. 'We've got to stop people before they've done something wrong,'" says David Cole, a Georgetown University law professor who's the author of several books about the effect of anti-terror laws on the justice system. "There's tremendous pressure to expand grounds of criminal activity, to prosecute people who might represent a threat. The material-support provisions have been the principal vehicle for pushing that envelope."

The question is whether that approach has made us any safer. "The government does not understand how terrorist groups operate," says Michael German, a former counterterrorism agent at the fbi and now counsel for the aclu. "When I was undercover, there were plenty of people who may have been sympathetic to a group but were very clear they didn't want to break the law or get involved in violence. And we didn't go after them." Blurring that distinction by opening the door for prosecutions of people who do little more than express sympathies for a group, argues German, "that's where the material-support provisions go off the rails. The terrorist's goal is to convince everybody he identifies as his community that they are being oppressed. And when the government's response tends to create injustice, the government's fulfilling that prophecy."

The core concept behind the criminal material-support laws—there are two—seems, at first glance, to be straightforward. The first law, passed in 1994 after the first World Trade Center bombing, bans almost any support of terrorist activity. The second law, passed in 1996 in the wake of the Oklahoma City bombing, criminalizes knowingly giving support, financial or otherwise, to groups designated as foreign terrorist organizations, even if the money is supposedly earmarked to support peaceful activities—say, a hospital for Hamas.

Think of the laws as "aiding and abetting"—only on steroids. It has always been illegal to support criminal activity. If a man drives a getaway car for bank robbers, then he can be charged for the robbery, too. Prosecutors have simply had to show that there was an intent to further the crime and some meaningful connection between the help and the crime itself.

What the material-support laws did was roll back those requirements. A taxi driver hired for a short drive by a Hezbollah politician—a driver who had no intention of engaging in terrorist activity—would, so long as he knew the politician was with Hezbollah, be guilty of providing material support. That's because the laws that define "material support" contain a long list of often nebulous activities, such as providing "property, tangible or intangible" or "service," and are applied whether or not those activities truly helped advance the cause of a terrorist group, and regardless of the suspect's intentions. The laws make little distinction between the taxi driver and, say, an arms merchant who sells detonators to Hezbollah. The Patriot Act extended the concept further, making it illegal to attempt or conspire to provide material support. Before, prosecutors had to prove you gave support. Now they just have to show you wanted to.

That change, along with other newly exploited vagueness in the existing material-support laws, opened up a whole new path for prosecutors. In the Padilla case and others, the government has argued successfully that a suspect is guilty of attempting to provide material support even if the plot he allegedly supported was purely a government concoction or, just as curious, even if the government hadn't said what group or plot the accused might have been supporting.

Prosecutors have only had to show that the accused expressed interest in helping—as the government puts it—the "global jihad movement." "Under our system you have to show a defendant has done something specific," says Peter Margulies, a national security scholar at Roger Williams law school in Rhode Island. "These charges are really a departure from the usual way of our doing justice."

That departure increases the chance of a screwup. "Fear—a not unreasonable one—of catastrophic harm" provides a great deal of incentive to bring charges against those you suspect might harbor ill will to the United States, says Margulies. "But political violence is a low-incident crime. There just aren't a lot of people making a living as terrorists. When you have a real imbalance like that and you put that together with vague charges, it's a recipe for mistakes. You have to really worry about false positives, about getting things wrong."

The idea for the material-support laws first came in the early 1980s, when, after the bombing of the Marine barracks in Beirut and a string of high-profile kidnappings of Americans abroad, the Reagan administration decided that U.S. law wasn't up to the task of prosecuting people who supported terrorists. Presidents have long had the power to impose embargoes against countries. Shouldn't they be able to do the same against terrorist groups?

Following this logic, the White House proposed to criminalize any training, support, or services to any foreign group designated a national security threat by the secretary of state. The sweeping proposal, which envisioned essentially no oversight, was denounced by both the left and right. A Washington Post editorial opined that the legislation might be used against the anti-communist Contras in Nicaragua. "Use your imagination," it warned. If "a President Mondale were to appoint a Jesse Jackson secretary of state, is it not possible that the Nicaraguan rebels might be designated terrorists?"

Congress enacted the first material-support law—limited to immigration issues—in 1990. It allowed the government to bar any aliens who supported a "terrorist organization" or "activity." Both terms were ill defined, and the first time they were tested, on the L.A. Eight, led to one of the most tortured cases to ever wind its way through the legal system (see their file, above).

It took the 1993 World Trade Center bombing for Congress to put the material-support concept into the federal criminal code. Michael Kraft, a recently retired State Department counterterrorism official, helped draft the law. "The reason for the laws overall was that there wasn't a good way to intercede on fundraising for nonstate actors," he says. "Part of the effort was also to create a deterrence effect. There was a feeling that there was a romanticization of terrorism. European intellectuals occasionally celebrated Red Brigades and Palestinian terrorism. So there was an effort to stigmatize the crime."

The law targeted any support of terrorist activity. But sending money to the ira for an orphanage, for example, wouldn't be illegal. And to law enforcement, that meant the law didn't go far enough. "Every once in a while we'd see a note on a check saying 'Mujahideen,'" jokes Jeff Breinholt, who heads the Department of Justice's terrorist financing unit. "But usually they didn't do that." So in early 1995 the Clinton administration introduced a bill banning the donation of any money, no matter its purpose, to groups designated as foreign terrorist organizations. The idea makes some sense: Should you be allowed to give to the Tamil Tigers' social-services arm? Even if you could be sure the money was going only to build a school, it frees up money for the Sri Lankan guerrilla group to spend elsewhere.

Two months later, when Timothy McVeigh blew up the Murrah Federal Building in Oklahoma City, Congress not only embraced Clinton's proposal, it greatly expanded it. Apart from an exemption for "medicine and religious materials," the new law, part of the 1996 Antiterrorism and Effective Death Penalty Act, criminalized all knowing support to terrorist-designated organizations—whatever the purpose of that support might be.

From the beginning, civil libertarians criticized the statute's potential for overreach. And federal courts have since ruled that some types of banned support are too vaguely defined—rulings that have largely stemmed from a suit in which a human rights organization sued to teach humanitarian law to a Kurdish group designated as a terrorist organization. (The Supreme Court has yet to weigh in.) In an even more farcical case, brought in 2006, a small-time satellite TV operator in Brooklyn allegedly offered to sell a government informant a satellite dish with access to al-Manar, better known as Hezbollah TV. In turn, the government charged the man, Javed Iqbal, with multiple counts of material support and announced he could face up to 110 years in prison. (The trial is set for June.)

And while most Americans would agree that Hezbollah is a terrorist organization, the process for designating groups as such has also drawn scrutiny. The State Department currently lists 42 groups as foreign terrorist organizations. Defendants can't challenge these designations (though the groups themselves can), and while federal judges can overrule the designations, the standards for doing so are high. Federal appeals court Judge Alex Kozinski, a prominent conservative jurist, recently railed against the "patent unconstitutionality" of a process that envisions jail time "for giving money to an organization that no one other than some obscure mandarin in the bowels of the State Department had determined to be a terrorist organization."

While criticism aimed at material-support laws has mostly focused on the scope of the 1996 law regarding providing financial support to groups, the Bush administration has quietly developed an alternate tactic: supercharging the 1994 terrorist activity provision. This new interpretation, writes Robert Chesney, a professor at Wake Forest law school and a leading scholar on material support, "has quietly emerged as perhaps the single most important charge in post-9/11 terrorism prosecutions."

What the administration realized is that the 1994 law could be interpreted to criminalize support of a terrorist conspiracy even when the conspiracy consists not of a concrete plot but rather of, as prosecutors have put it, the "worldwide jihadist movement." "You don't even need to establish 'conspiracy' as we commonly understand it, because you don't have to prove an agreement with anyone," notes William Banks, director of Syracuse University's Institute for National Security and Counterterrorism. The Patriot Act further juiced the law, making it illegal just to try to give support. At its most attenuated, you can be guilty of attempting or conspiring to provide personnel (i.e., yourself) for the preparation of a conspiracy that may or may not exist. "It is possible to indict someone even where the government is entirely unclear as to just what the person may be planning to do," says Chesney. "If it sounds quite broad, it should."

"I'm not sure if a memo went around to U.S. attorneys or what, but they've all been seizing on 2339A," adds Chesney, referring to the section number of the 1994 material-support statute.

Actually, one did. In the summer of 2003, an internal Department of Justice bulletin recommended just such an approach, telling U.S. attorneys that the DOJ "can work with you on this theory and offer sample indictment language." The newsletter was written by Jeff Breinholt from the DOJ's terrorist financing unit. Asked about criticism that the approach is too sweeping, Breinholt says, "Because the object of what you're trying to do is far worse"—that is, terrorism—"it's appropriate to have a standard that's lower than 'aiding and abetting.'"

But how low is too low? Consider the case of a young Pakistani American man named Hamid Hayat from Lodi, California. Hayat was convicted in 2006 of material support even though the government never alleged he was involved in a plot and it never specified which terrorist group he allegedly sought to help. Instead prosecutors focused on what they called Hayat's "jihadi mind" and his confession—which came after an all-night interrogation and was soon recanted—that he had attended a "jihadist" training camp.

Despite qualms from some jurors—one later disavowed her vote, claiming other jurors had pressured her—Hayat was found guilty and sentenced to 24 years in prison (see file above). "If at the end of the day what the government could prove is that Hamid harbored generally ill feelings and got training from some unidentified group," says Chesney, "then the idea that that constitutes a criminal conspiracy is troubling."

Chesney, a highly regarded and cautious scholar, expresses a wary ambivalence about the law. "It's not entirely clear to me that it's the wrong approach," he says. If the laws get gutted, there could be "pressure to move toward the military approach or cia renditions. Even for liberals, there's an incentive to go with the lesser of two evils." And if the greater evil is rejected by the next administration (willingly or at the courts' insistence), that could, paradoxically, mean an embrace of this problematic legal framework that the Bush administration has set up to fight terrorism.

In that case, experts propose reform that could go a long way to making the laws more just, including more carefully calibrated definitions of what constitutes support or a conspiracy, and, one of Chesney's ideas, graduated penalties based on intent. Whether or not such changes would be remedy enough, it is clear that, as currently interpreted, the material-support laws undermine our standards of justice. That's not only a problem for those caught in the government's wide net. It's a problem for all of us.

"The Constitution is, among other things, a counterterrorism strategy," says Michael German, the former fbi agent. "What the framers recognized is that you don't create the perception of repression if you allow people legitimate means for fostering change. The material-support laws criminalize conduct that in and of itself isn't typically criminal, isn't illegal." When you have cases based on such sweeping laws, argues German, "you're ostensibly hurting terrorist organizations, when in fact you're helping them. You're giving people more of a reason to become militant."

Hemant Lakhani — Reuters/Ho/Andrea Shepard; The L.A. Eight — Courtesy Committee 4 Justice; Mohammed Hossain — Reuters/Chip East