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Arrested for Your Politics in America? It's Already Happening

The nebulous but potent charge of terrorism has been used to systematically curtail justice.

In the US, due process - one of the defining features of a democratic judicial process - continues to be badly bludgeoned: Obama  fights tooth and nail to push through NDAA, which would allow indefinite detention of US citizens, and the definition of terrorism has expanded its unwieldy scope, casting a widening net that ensures more and more people are captured in its snare. 

The US has pursued "domestic terrorism" by practicing pre-emptive prosecution, that is, going after individuals who have committed no crime but are alleged to possess an ideology that might dispose them to commit acts of "terrorism". Maintaining that it can -and should - be in the business of divining intent, the government decimates crucial elements of the US justice system. 

Thus, in cases where terrorism is charged, prosecutors need not prove guilt beyond a reasonable doubt. Rather, only the defendant's potential for committing a crime need be established in order to convict. 

Consider the case of  Tareq Abufayyad, a young Palestinian man and recent college graduate who was detained at San Francisco International Airport when he was on his way to unite with his family, all of them naturalised citizens of the US. Tareq was deemed inadmissible merely on the grounds that he had the potential to become a Hamas-operative. 

FBI Agent Robert Miranda, the lead investigator into the government's case against the Holy Land Foundation, argued before the Immigration Judge presiding over Tareq's case that, because he was a well-educated man from Gaza, a strong-hold of Hamas, Tareq would be "attractive to Hamas" as a future recruit. 

It's not hard to understand why David Cole, a professor of law at Georgetown University,  concluded pre-emptive prosecution as an "inevitably speculative endeavour".   

Project Salam, an organisation devoted to monitoring and documenting the US Justice Department's prosecution of terrorism cases, points out that the logic of pre-emptive prosecution - enthusiastically embraced after 9/11 - was derived in significant part from Dick Cheney's infamous "One Percent Doctrine". Ron Suskind  explained Cheney's reasoning

"Even if there's just a 1 percent chance of the unimaginable coming due, act as if it is a certainty…. Justified or not, fact-based or not, 'our response' is what matters." 

Commenting on the impact Cheney's policy had on the role of evidence in judicial proceedings, Suskind writes: 

"As to 'evidence', the bar was set so low that the word itself almost didn't apply." 

Terrorism statutes

For the past 12 years, this wanton policy has been wielded primarily against Muslims in a frenzy of cases brought against US citizens and others in immigration, civil and criminal courts, with anguished and predictable devastation wrought on individuals and their families. 

In a telephone conversation with me, however, Downs noted that this policy has recently been extended to apply to those who hold other "ideologies", namely leftists and anarchists. Downs pointed to a handful of cases, including the  "Cleveland 5", "RNC 8" and "Nato 3" that suggest the direction in which the policy of preemptive prosecution is going. "If they are sufficiently 'Muslim', they are sufficiently 'predisposed'," writes Steve Downs, civil liberties lawyer and founder of Project Salam, in  Victims of America's Dirty Wars

In the wake of 9/11, many states - including Illinois, New York, New Jersey and Oklahoma - passed terrorism statutes that included their own variations on the definition of terrorism. However, because it is the federal government that primarily handles cases of terrorism, states have rarely employed these laws. 

Last year, for the first time, Illinois deployed its own statute against terrorism. Illinois' terrorism law  states