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How U.S. Law Pre-Convicts and Pre-Punishes American Muslims

Giving humanitarian aid, expert advice, or “political advocacy” in “coordination” with any group on the State Department’s terrorist list can lead to being tried as a terrorist.
 
 
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A four-month hunger strike, mass force-feedings, and widespread media coverage have at last brought Guantanamo, the notorious offshore prison set up by the Bush administration early in 2002, back into American consciousness. Prominent voices are finally calling on President Obama to close it down and send home scores of prisoners who, years ago, were cleared of wrongdoing.

Still unnoticed and out of the news, however, is a comparable situation in the U.S. itself, involving a pattern of controversial terrorism trials that result in devastating prison sentences involving the harshest forms of solitary confinement.  This growing body of prisoners is made up of Muslim men, including some formerly well-known and respected American citizens.

At the heart of these cases is a statute from the time of the Clinton presidency making it a crime to provide “material support” to any foreign organization the government has designated as “terrorist.”  This material support provision was broadened in the USA PATRIOT Act, passed by Congress just after the 9/11 attacks, and has been upheld by a 2010 Supreme Court ruling in the case of Holder v. Humanitarian Law Project.  Today, almost any kind of support, including humanitarian aid, training, expert advice, “services” of all sorts, or “political advocacy” undertaken in “coordination” with any group on the State Department’s terrorist list, can lead to such a terror trial. The Court has never defined what “coordination” actually means.

In that Supreme Court ruling, Justice Stephen Breyer was joined in dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Breyer proposed a narrower interpretation of material support: individuals should not be subject to prosecution unless they knowingly provided a service they had reason to believe would be used to further violence. At the time, the position of the dissenting judges was backed by key editorials in major newspapers.  In the three years since, however, more material support cases have resulted in long sentences with very little public notice or critical comment.

Pre-Trial Punishment

In the U.S. these days, the very word “terror,” no less the charge of material support for it, invariably shuts down rather than opens any conversation.  Nonetheless, a decade of researching a number of serious alleged terrorism cases on both side of the Atlantic, working alongside some extraordinary human rights lawyers, and listening to Muslim women in Great Britain and the U.S. whose lives were transformed by the imprisonment of a husband, father, or brother has given me a different perspective on such cases.

Perhaps most illuminating in them is the repeated use of what’s called “special administrative measures” to create a particularly isolating and punitive atmosphere for many of those charged with such crimes, those convicted of them, and even for their relatives.  While these efforts have come fully into their own in the post-9/11 era, they were drawn from a pre-9/11 paradigm.  Between the material support statute and those special administrative measures, it has become possible for the government to pre-convict and in many cases pre-punish a small set of Muslim men.

Take the case of Ahmed Abu Ali, a young Palestinian-American who is now serving life in the Administrative Maximum Facility, a supermax prison in Florence, Colorado, and is currently under special administrative measures that restrict his communications with the outside world. A university student in Saudi Arabia, he was arrested in 2003 by the Saudi government and held for 20 months without charges or access to a lawyer. The Washington Post reported that the U.S. government finally asked for his return just as his family filed a lawsuit in Washington.

 
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