National Insecurities: Between the law and liberty in counterterrorism America

The American government’s preventive counterterrorism strategy is no secret. Weeks after the 9/11 terrorist attacks, former Attorney General John Ashcroft declared, “Our single objective is to prevent terrorist attacks by taking suspected terrorists off the street. Let the terrorists among us be warned: If you overstay your visa – even by one day – we will arrest you.

If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage.”

As the government adopted a zero-tolerance policy, a fear-stricken public watched while images of nefarious, dark-skinned, bearded Muslims flashed across millions of television screens. The message was – if there had ever been any doubt – that the 9/11 attacks confirmed that Muslims and Arabs are inherently violent and intent upon destroying the American way of life. Heightened scrutiny of these communities was thus perceived not only as warranted, but also as a rational response to an existential threat to the country.

Ten years later, the 9/11 attacks appear to have succeeded in transforming the American way of life for the worse. In our hasty passage of the expansive PATRIOT Act, our fears gave way to the government’s demand for unfettered discretion to preserve national security at the expense of civil liberties for all Americans. Persistent fears of “homegrown terrorism,” fueled by irresponsible Congressional rhetoric, have legitimized a bigoted discourse on the country’s Muslims to such an extent that some Americans challenge Islam’s status as a bona fide religion deserving of constitutional protection.

At first blush, the preventive paradigm appears legitimate. Few would contest the collective public safety interest in stopping terrorism before it occurs. Even so, at what point should the government be permitted to investigate individuals? Does mere political dissent, even if virulently anti- American, or unpopular orthodox religious practices suffice to subject individuals to heightened scrutiny or a loss of liberty? At what point does legitimate counterterrorism become political and religious persecution? The answers determine the type of country we want to live in: a free and just society consistent with the founding fathers’ vision, or a paranoid society dislodged from its fundamental principles of fairness and the rule of law.

The linchpin of the counterterrorism paradigm consists of laws that prohibit providing material support to terrorism. These laws are often the fallback criminal provisions employed when the government cannot prove terrorism charges. But they are so broad and vaguely worded that they effectively criminalize myriad activities that would otherwise be constitutionally protected. Specifically, the government is not statutorily required to prove that the defendant had a specific intent to support terrorism, thereby granting it carte blanche to prosecute a broad range of legitimate activities, such as charitable giving, peace building and human rights advocacy. Humanitarian aid delivered to noncombatant civilians in conflict zones such as Somalia, Gaza, Kashmir, Yemen and Afghanistan is also illegal based on the unproven theory that it frees up terrorists’ resources to redirect toward violence. With few exceptions, the executive branch has exercised its broad discretion to selectively target Muslim charities engaged in seemingly legitimate humanitarian aid. The result is a serious chilling effect on Muslim communities’ willingness to openly partake in political dissent and give religiously mandated charitable donations to Muslim charities. The government’s designation as terrorist and closure of the three largest Muslim American charities in the first three months after the 9/11 attacks sent shockwaves through Muslim communities nationwide. In December 2001, during Ramadan, when Muslim charitable giving is at its yearly peak, the government froze the assets of the Holy Land Foundation for Relief and Development, the Global Relief Foundation, and the Benevolence International Foundation. The subsequent criminal prosecution of their officers, board members, employees and contracted fundraisers in the United States alarmed Muslim donors, who reasonably feared that the most tenuous association with a Muslim charity could lead to ruinous consequences. Currently, seven out of the nine charities shut down as a result of terrorism-related investigation or designation are Muslim charities. New Muslim charities, such as KindHearts – created to fill the void caused by these shut downs – were also incapacitated by a freezing of assets based on a mere investigation of their activities. Neither KindHearts nor its officers have been charged with, let alone convicted of, any crime.

Unbeknownst to many, a formal terrorist designation is not necessary to “tar and feather” a charity. A mere investigation by the Department of Treasury is enough to trigger the asset-freezing provision of sanctions laws, thus paralyzing the organization. The ensuing public media coverage then puts the nail in the organization’s coffin, as any individual’s subsequent association with it is an invitation for government scrutiny, if not prosecution. Before December 2010, such organizations were even denied access to their funds to hire a defense lawyer unless the Department of Treasury authorized such expenditures. The department often approved an amount that represented only a small fraction of the cost of hiring competent counsel.

Negative publicity coupled with the inability to access their funds to adequately defend themselves sounded the charities’ death knell. At least six American Muslim charities have found themselves at the center of publicly announced terrorism investigations, raids and surveillance. Unable to overcome the resulting stigma and blacklisting, two of them have permanently closed without ever being accused of supporting terrorist organizations.

Although material support laws were initially enforced against Muslim communities, aggressive prosecution has since spread to other groups as the government seeks to convince the public that it is actively promoting national security.

The criminalization of aid and advocacy directly contradicts our nation’s stated commitment to international human rights law and sends a message to the world that the United States is not serious about human rights and peaceful conflict resolution. Moreover, the ruling undermines American civil society, for its independent nonprofit sector plays a pivotal role in international peace-building efforts and the provision of humanitarian aid to impoverished civilians trapped in conflict zones. However, the Court’s interpretation of the material support laws now limits international peace-building efforts to highly politicized, and often ineffective, government programs sponsored by the U.S. Department of State or USAID.

While new regulations permitting a charity to pay for particular legal services are welcome, there is little justification for the government’s continued refusal to allow the undesignated charity access to its funds for those services not the focus of the investigation. Especially in the case of large charities, whose operations expand into various countries, whereas the government’s concerns may be limited to only operations in a particular country or related to a specific project. The government has yet to provide a reasonable explanation other than its punitive preventive philosophy for shutting down an entire organization and in effect punishing innocent beneficiaries such as those currently starving in Somalia rather than stopping the activity being investigated. Moreover, once the government freezes the funds, it refuses all requests to release them to other charitable organizations performing the same work in accordance with the cy-pres principle. Tellingly, the government would rather keep the funds frozen indefinitely with no regard for the needs of intended beneficiaries. Such contradictions evince the politicization of counterterrorism that, thus far, has most adversely impacted Muslim charities and individuals.

Ten years after 9/11, the American government’s preventative counterterrorism strategy has cost millions of taxpayer dollars, diverted thousands of law enforcement personnel away from preventing nonterrorism-related crimes, and failed to prevent significant terrorist attacks committed by Muslims and non-Muslims alike. Rather than partaking in responsible governance and reassessing failed strategies, it continues to employ fear-based narratives to persuade the public to keep pouring billions of dollars into flawed national security projects.

Evidence of the success of counterterrorism strategies is weak. First and foremost, the government has failed to prevent some of the most serious attempted terrorist plots over the past few years. But for a fortuitous technical failure and the rapid response of a Muslim Mauritanian reporting the smoke, thousands of people could have been killed in Times Square. Similarly, the Nigerian Christmas Day bomber would have successfully killed hundreds on an airplane headed for Detroit if his bomb had not failed to ignite and if the intelligence community had not acted on his father’s report and other relevant intelligence. White supremacist James Cummings was actively constructing a lethal dirty bomb at home undetected by the FBI. Only after his wife shot him in self-defense did the government discover his terrorist plot. In other cases, terrorists succeeded in terrorizing the American public without government intervention. Joseph Stack flew an airplane into an IRS building in Austin, Texas, in protest of IRS demands that he pay his taxes. His terrorist attack killed an IRS employee who was a military veteran. Had the attack occurred at a different time of day, hundreds of IRS employees could have been killed. Jared Lee Loughner shot Congresswoman Gabrielle Giffords (D-Ariz.) and killed six people due to his mental illness and questionable political objectives.

While countering terrorism is no easy feat, it is remarkable that the government was unable to prevent these attacks after having invested so many resources into counterterrorism, often at the expense of the civil liberties of all Americans. Despite the creation of numerous fusion centers nationwide, the relaxation of surveillance laws, the use of technology to surveil nearly every aspect of life in this country and the reallocation of thousands of agents to countering terrorism, the government has yet to show results proportionate to the monumental vested resources. In the apt words of David Cole and Jules Lobel, we have become both less safe and less free.

What these strategies accomplish quite well is the stigmatizaion of more than 6 million Muslims in the United States because of the illegal acts of a handful of Muslims – some of whom are foreign and have no ties whatsoever to this country. The public outcries against mosque constructions, anti-religious freedom campaigns couched as “anti-Shariah,” and notable upticks in private acts of discrimination are partially attributable to the government’s misguided selective counterterrorism practices. Accordingly, many American Muslims feel that they live a second-class existence because their houses of worship are more likely than others’ to be under surveillance and monitored. Their Internet activity is more likely to be under heightened scrutiny for any signs of radical dissent. Their religious practices are under the microscope by purported terrorist experts who cannot tell the difference between orthodox Islamic practices and bona fide terrorist activity.

Predictably, what started out as a focus on vulnerable religious and racial minorities has now spread to a broader segment of Americans. Laws prohibiting material support to terrorism that were initially applied to Muslim individuals and institutions are increasingly being enforced against various individuals and institutions engaged in humanitarian aid, peace building and human rights advocacy. Tellingly, non-Muslim activist groups who have been engaged in legitimate advocacy for decades are now being targeted for investigation and potential prosecution pursuant to material support according to antiterrorism laws.

It is long past time for the U.S. government to reassess the successes and failures of its post-9/11 counterterrorism policies. In light of our nation’s checkered civil rights record and ample opportunity to learn from the past, there is simply no excuse for repeating the same mistakes on yet another different and vulnerable minority group. Preventing a terrorist attack need not come at the expense of a religious minority’s rights. Nor should it require sacrificing this country’s most fundamental civil rights and liberties. §