Last weekend's report that the FBI foiled a plot to bomb a New York City tunnel once again raises questions about the methods and manners of investigation and prosecution of terrorist suspects.
Officials admit the plot was “largely aspirational” and, according to Homeland Security Secretary Michael Chertoff, “was never a concern . . . would actually be executed.” While the tunnel bomb plot will not be
prosecuted in the United States, it is not the first case where the Justice Department has gone after those suspected of nothing more than talk.
Prosecutions based on talk are but one tactic in an alarming pattern of law enforcement activity in the post-9/11 era. America’s integrity as a nation based on the rule of law is being threatened by three factors: (1) the willingness of law enforcement agencies to arrest and charge those who have engaged in no substantive criminal act combined with (2) prosecutorial overzealousness and (3) bad laws.
Perhaps more than in any other period in American legal history, investigations and prosecutions since 9/11 suffer from a prosecutorial overzealousness that seems to parallel increases in law enforcement improprieties and bad laws. This odd synchronicity creates a "house of cards" effect—a flimsy legal structure that increasingly targets marginal persons, petty criminals (not the real terrorists), and even activists—which undermines the Constitution, the rule of law, and ultimately, democracy itself.
In three of the cases (Stewart, Al-Arian, and Miami 7), charges were brought under a law that prohibits individuals from providing “material support” to terrorists, first passed by Congress in 1996 and subsequently amended by the USA Patriot Act. The law contains two material support provisions: (1) material support of a designated foreign terrorist organization (18 USC 2339B), and (2) material support of terrorism (or terrorists) (18 USC 2339A).
The material support laws under which Stewart, Al-Arian and the Miami 7were all charged themselves raise questions of improper prosecution. This is because some sections of the laws do not require any proof of intent to engage in unlawful activity, but merely that the individual provided support to a designated organization. Other sections of these laws have been deemed unconstitutional by federal judges because of vagueness or what is known in legalese as “overbreadth”—in other words, its net is too wide.
Usually, the government uses the material support provisions as the primary charges underlying an overall conspiracy charge—as they were in these three cases. Conspiracy charges do not require actual engagement in unlawful activity in order to obtain conviction. They require only an agreement to participate in unlawful activity plus any overt act. This act may itself be a lawful act, such as buying an airline ticket.
If the material support laws make up one of the legal house of cards, another card involves yet another problematic statute: the Foreign Intelligence Surveillance Act (FISA), the same law President George W. Bush violated when he initiated the illegal wiretapping program. We know that the investigations of Stewart and al-Arian weren't carried out under regular criminal laws that prevent law enforcement from engaging in "unreasonable" searches or seizures (including surveillance). Instead, the FBI engaged in surveillance under FISA. The FISA statute applies to foreign, not domestic, intelligence surveillance only and thus—here’s the clincher—is not subject to the Fourth Amendment reasonableness restrictions. In other words, probable cause of criminal activity is not required when law enforcement agencies obtain permission from the FISA court to search under this statute. This is because when Congress enacted the law, it was assumed it would only be applied to foreigners, not American citizens.
In the third case, the Miami 7, we do not yet know whether warrants were issued under FISA or under regular Fourth Amendment law, but where charges of support of terrorism are found, FISA warrants are likely. However, we do know that in addition to the problematic material support laws, the government used troubling law enforcement techniques: The
indictment was issued on information supplied by an undercover operative whose techniques strongly suggest a classic inducement-entrapment scenario.
As troubling as the strategies and laws are underlying the Stewart, and Al-Arian cases, there’s also an aspect of “mission creep” to the U.S. government’s counterterrorism prosecutions. Neither the McDavid “eco-terrorist” nor the Miami 7 case involves the kind of high-level terrorist operation which these laws and tactics were designed to target.
The McDavid case involves several young, white radical “anarchists,” while the Miami 7 case involves seven black men who all lived in a section of Miami—Liberty City in Little Haiti—known for its large Haitian community.
While on the surface these cases may not appear to have much in common, the government filed material support and conspiracy charges in both cases, and an “informant” was used in both to obtain information that led to the indictments. The differences between the two are as significant as the similarities. In the McDavid case, a “confidential informant” was used—that is, an independent person who pretended to be a member of the group. In the Miami 7 case, an undercover operative was used: a paid employee of the FBI who pretended to be a representative of al-Qaida.
Yet in both cases, the spy engaged in inducement and entrapment. Neither the McDavid group nor the Miami 7 took any steps without the inducement of and funding by the government agent. Like the official characterization of the New York City tunnel bomb plot, the Miami 7 indictment describes the group’s goals as being “more aspirational than operational.”
The two cases clearly manifest a development in the tactics used in the war on terror by the FBI and Justice Department. The material support statute is no longer used to snare the really bad high level terrorists. It is used to entrap marginal lost souls who were otherwise without means or motivation beyond trash talk, and whose lives might have been better spent getting therapeutic help or some tough love rathan than spending 20 to 30 years in federal prison.
These cases paint a picture of a system being slowly eviscerated, perhaps by the most well-meaning patriotic individuals, who are trying hard to fulfill the public demand for results in a undefined war on an abstraction (terrorism). These civil servants are also trying to satisfy the Bush administration’s need for bogeymen to justify excessive and unlawful measures like indefinite detentions, military tribunals, evasions and violations of the Geneva Conventions and the international laws of war, harsh and abusive interrogations, secret prisons and more.
There’s nothing malicious about federal prosecutors and investigators using cunning and calculation. Indeed, prosecutors would not be doing their jobs if they were not trying every lawful means necessary to obtain convictions of suspected criminals—especially terrorists. And surely prosecutors will favor methods of prosecution that make conviction more, rather than less, probable.
The problems that are now surfacing, however, stem from prosecutorial overzealousness combined with bad laws and improper law enforcement techniques. We should be concerned because it is our democracy that is being eviscerated.
Law & Civil Liberties 
