Paintball: The New Threat to National Security

On March 5, 2004, U.S. District Court Judge for the Eastern District of Virginia found three American citizens residing in Falls Church, Virginia guilty of terrorism charges that could send them to prison for fifty years or more.

The men, part of a group of American citizens known as the “Alexandria 11” had never taken up arms against anyone, or even threatened to do so (though one or more of them legally owned a gun or two). They never planned a terrorist attack against the United States abroad, let alone planned an attack on Americans at home.

What they did do was talk about and, if you believe the prosecutor’s case, engage in “paramilitary training’ by playing paintball in support of Lashkar-i-Taiba, an Islamic group that supports Pakistan in its continuing skirmishes with India over the rule of Kashmir. (Lashkar-i-Taiba has been accused by India of mass killings of Sikhs and of partial responsibility for an attack on India's Parliament in December 2001.)

Two of men admitted to working for the organization in 1999 and 2000 and several had been to a Lashkar-i-Taiba training camp in Pakistan before the group was declared a terrorist organization in 2001.

In the summer of 2003, federal prosecutors in Alexandria indicted the men on charges of violating the Neutrality Acts (1937 and 1939), a law that forbid an American citizens or residents from attacking countries (in this case, India) with which the United States is at peace. In announcing the indictment under this rarely used law, U.S. Attorney Paul McNulty said that the men were preparing for violent jihad. Attorneys and supporters charged that the government was attacking Muslims for their preparation to support a Muslim cause (the majority of Kashmir is Muslim), as their religion requires of them.

The charge of discrimination against Islam and Muslims was made throughout the proceedings. When a federal magistrate let some of the defendants out on bail, the government appealed to Judge Leonie Brinkema (best know as the presiding judge in the case of Zacarias Moussaoui), who ultimately ordered most of the defendants jailed pending the proceedings.

Defense attorneys charged that this decision to jail American citizens who had strong ties to the community and who had not been charged with committing any act of violence was obvious discrimination. They allege that their clients were denied bail because they were Muslims. Brinkema said the charges were “serious,” hence the detention. Yet seriousness of the charge, as such, is not the basis for a bail decision. Rather, the decision to deny or grant bail is posited on the likelihood of the defendant to flee and not appear for trial and to be a danger to the community.

An FBI official justified the preemptive prosecutions. Michael E. Rolince, in charge of Washington FBI field office, conceded that the government had no evidence of specific plots against U.S. targets at home or abroad, but that, given the climate since Sept. 11, 2001, they decided to move on the evidence they did have.

"It is just no longer sound judgment to have people that you believe have engaged in illegal activity and let them conduct an attack before you do something about it," said Rolince in a Washington Post article. “A lot of this is about preemption."

Rolince was echoing what Attorney General Ashcroft has said repeatedly since September 11. The government is not going to wait for terrorism to happen. Its aim is to stop it from occurring. But at what cost?

The Alexandria prosecutors employed a strategy that is consistent across all types of “terrorist” prosecutions since September 11. Whether shutting down Islamic charities, detaining “suspicious” immigrants who have violated no criminal laws but who may have overstayed their visas, or charging people with aiding and abetting terrorism in order to extract pleas to far lesser charges, the government typically begins with a sweeping indictment, an arrest followed by denial of bail, stringent efforts on the part of prosecutors to get defendants (now incarcerated) to plead, and letting it be clearly known that if they insist on not pleading they will likely face more serious charges and get maximum prison time.

According to attorneys who represent these defendants, the pressure on men to confess to what the government wants is enormous. The deals offered -- a few years versus 50 or 100 years, even life in prison -- are hard to reject, even if the person never did anything except perhaps support a cause and travel to a foreign country.

Recalcitrant defendants are threatened with being declared enemy combatants like Jose Padilla (who has been incarcerated for almost two year without being charged with any crime); some are told that family members may be prosecuted if they do not cooperate.

The Alexandria 11 case typifies the value of this strategy. Early on, four men pled guilty. Those that did not were the subjects of superseding indictments. The new charges were aiding and abetting terrorism, more serious charges than those arising under the Neutrality Acts. Two more men pled guilty shortly after the terrorism indictments were handed down. For their cooperation, they received promises of sentences of 3 to 11 years. Charges against two were completely dropped.

Defense attorneys saw this as tightening the screws vindictively against those who would not plead and cooperate against the others. Charges of aiding and abetting terrorism resonate with the public and the jury in a way that violations of the Neutrality Acts do not. Few lawyers, let alone the public, know anything about the Neutrality Acts.

The three that were tried and convicted by Judge Brinkema will, from a practical standpoint, spend the rest of their lives in prison. Ironically, the men and their counsel decided to waive a jury trial because they feared that they could not get an unprejudiced jury in Alexandria, Virginia.

A Prejudiced Verdict?

Attorneys who represented the three convicted were long-time Northern Virginia defense attorneys. Interviews with them reported by the media and sources that spoke to me confirmed that they were dismayed and disappointed with Judge Brinkema’s finding of guilt. The evidence against the men consisted solely of the testimony (for instance, that the men played paintball to prepare for battle) of their co-defendants who had pled in exchange for light sentences based on cooperation and innuendoes of guilty by association with an unpopular Muslim cause. In speaking to reporters after the verdict, Prosecutor McNulty make note of the “scarcity of evidence” when he praised Judge Brinkema for her verdict. But in his official press statement, he referred to the evidence as “overwhelming.”

In announcing her decision, Judge Brinkema took aim at that aspect of Islam that supports “violent jihad.” She said she was troubled by it, and hoped that the people in the courtroom would take that message to their communities. In reality, the defendant’s lawyer’s said, the term “jihad” generally means preparing to support Islam as the one true faith.

Further, critics of the verdict have asked, would the men have been charged, much less convicted, of anything if they were playing paintball in order to prepare to fight for Israel against the Palestinians? Tens of thousands of people, including, kids, play paintball. Since when is paintball playing preparation for terrorism?

The message from the prosecution and verdict seems to be that Muslims who support Muslim causes – even those unrelated to al Qaeda’s terrorist network -- will be punished as aiding and abetting terrorism. With the Patriot Act’s sanctioning intelligence infiltration of religious establishments and meeting, Muslims cannot help but feel that participation in mosque activities and services in which politics are mentioned may bring the possibility of prosecution and prison.

A stark example of the degree to which guilt by association permeates federal prosecutions today occurred at the January 2004 sentencing of Solomon Biheiri for lying on a visa application. The government had originally tried to tie him to terrorism financing, but could not do so. At his sentencing, prosecutors asked Judge T.S. Ellis, III, a colleague of Judge Brinkema’s at the federal court in Alexandria, Virginia, to give him a longer sentence than the federal sentencing guidelines allowed because he socialized with some people the government alleged (though they have not been so charged and found) to be terrorists. Judge Ellis, one of the most pro-government judges in Alexandria, replied that it was not a crime to “know a terrorist.”

The prosecution of the Alexandria 11 was filled with tactics and strategies that would have been considered unacceptable in a pre-September 11 world. But since that tragedy, the Patriot Act, the Homeland Security Act, countless regulations and aggressive prosecutions support prejudice against Muslims, who are guilty by association with a cause antipathetic to the U.S. government.

There has always been a need for -- and indeed countless laws support -- balancing individual freedoms with national security interests. But the prosecution of the Alexandria 11 was not even remotely about national security. It is hard to argue with the critics of the prosecution who see the case as prejudicial treatment of Muslims who are as devoted to their religion as are Israelis in Israel and Catholics and Protestants in Northern Ireland. The government cannot obviously prosecute every supporter of a cause it does not approve. But Muslims today are easy targets.

Elaine Cassel practices law in Virginia and Washington, D.C. and teaches law and psychology. Her website, Civil Liberties Watch, tries to keep up with the Bush Administration’s assault on civil liberties. Her book,The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, will be published by Lawrence Hill this summer.

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