Friday, October 12, 2012

Left Side of the Aisle #77 - Part 1

Living under the anti-terrorism regime

I'm going to start this week with two tales of life under the anti-terrorism regime.

The first involves Abdullah al-Kidd. He is an American citizen, born in Wichita, Kansas and raised in the US. In March 2003 he was at Dulles Airport, outside Washington, DC, intending to fly to Saudi Arabia to work on his doctorate in Islamic studies.

He was arrested, taken out in handcuffs and imprisoned for 16 days, during which time he was repeatedly strip-searched and left naked in his cell.

The argument for his arrest was he was needed as a material witness in a terrorism case against a former classmate, Sami Omar al-Hussayen. But Kidd was never called in that case, nor was he even told that Hussayen was acquitted on the main terrorism-related charges. Kidd sued the government, claiming he was wrongfully held as a supposed material witness, but that in fact is was a pretext to hold and question him on suspicion of terrorism.

He originally named John Ashcroft, attorney general at the time, a couple of FBI agents, and the wardens of the prisons where he was held. In the years since, Kidd has reached settlements with the wardens over the conditions of his confinement. Last year, unfortunately, the Supreme Court reached a jumbled ruling that Ashcroft had qualified immunity. (He was, after all, a high government official and ordinary folks like Kidd can't touch him.) Which still leaves a couple of government agents as targets of the suit.

Okay, here's the thing: In June, US Magistrate Mikel Williams issued a ruling that stated:
The circumstantial evidence supports the inference that al-Kidd may have been detained for reasons in addition to securing his testimony at trial.
That is, that the government misused the material witness law to arrest Kidd.

What's more, Magistrate Williams, who was the one who granted the FBI the warrant to arrest Kidd, also said that the information given to him to justify the arrest was "misleading and highly suggestive of illicit involvement with criminal activity, inferring a motive to flee.” Williams was told, for example, that Kidd had a first-class one-way ticket and had received more than $20,000 from Hussayen. In fact, he had an economy-class round-trip ticket, and the payment was for legitimate work he had done for Hussayen’s company.

In addition, the FBI did not tell Williams that Kidd was a citizen, born and raised here, that his wife and son and many family members were in the United States, that he had never failed to cooperate with the FBI, or that he was on his way to Saudi Arabia to continue educational goals, not to escape trial testimony - trial testimony which Kidd was never told might be desired - that is, supposedly might be desired - before he was arrested.

Despite all that, the Justice Department - Barack Obama's Justice Department - had sought to have his motion to proceed to trial summarily dismissed.

Happily, about two weeks ago, federal Judge Edward Lodge in Idaho affirmed the ruling from Magistrate Williams that there was evidence that the government may have willfully misused the material witness law against Kidd, so his case should go to trial. In fact, he went even beyond Williams, saying the original affidavit from the FBI “evidences a reckless disregard for the truth.”

Despite that hard-won victory, Kidd, who describes himself as “anti-Bin Laden, anti-Taliban, antisuicide bombing, antiterrorism,” has already paid a heavy price. He lost his scholarship to Saudi Arabia, his marriage and his relationship with a daughter fell apart under the strain, and he was unable to find work in the US. He had to leave the country to find work. He is currently living in Saudi Arabia, where he teaches English.

Okay, that's one story. This other one is one I've been wanting to talk about for a few weeks, ever since I heard about the suit.

Just over a month ago, during the first week of September, the American-Arab Anti-Discrimination Committee, the American Friends Service Committee (AFSC), the Center for Constitutional Rights, and the Peoples Law Office jointly filed suit in federal court in Chicago challenging the federal government’s restrictions on their First Amendment rights to engage in “coordinated advocacy” with one Muhammad A. Salah.

Muhammad Salah is a US citizen living in Chicago, and he is the only US citizen residing in the United States who is currently labeled a “Specially Designated Terrorist” by the Office of Foreign Asset Control, which is part of the Treasury Department. Once an individual is so labeled, all persons and organizations are prohibited from engaging in "coordinated speech" with them, even if only to express concerns about the government’s conduct in his case. They couldn't, for example, have a press conference with him. They couldn't co-sign a letter with him. They couldn't sign a petition with him. They couldn't even circulate a petition or write a letter on their own if he expressed gratitude for or even mere approval of the idea - not without running the risk of breaking the law and, hypothetically, of being labeled terrorists themselves.

That label - “Specially Designated Terrorist” - can be placed on someone - anyone - without any due process or probable cause or evidence of criminal wrongdoing. In fact, when Salah was so labeled, the notice simply announced the fact. It offered neither a factual nor a legal basis for the decision. It appears to have been based on some alleged connections he had to Hamas sometime in the past, in fact at a time when support of Hamas was not prohibited by US law. It's a case of "Are you now or have you ever been." The government never even told Salah about the notice; neither he nor his family even knew about it until they ran smack into the brick wall of restrictions it created - in that case, discovering that their bank account was frozen.

And those restrictions are extreme, so extreme that they prevent him from carrying out basic, normal life activities. Salah cannot get a job, pay his rent, obtain medical care, or even buy a damn loaf of bread without obtaining prior approval from the Treasury Department, which has unfettered discretion to impose whatever sanctions it chooses.

This has been going on for him for 17 years. Yes, I said 17 years. On January 23, 1995, then President Bill Clinton, now the Democrats' model of all things good and true, issued an Executive Order declaring a national emergency to deal with violent acts by foreign terrorists who were considered to be interfering with the Middle East peace process. (Notice well that order succeeded in producing progress on that front.) Six months later, the Treasury Department designated Salah as a Specially Designated Terrorist. And nothing in the statutes, the executive order, or the regulations requires a review or reconsideration of Salah’s status at any time - so it's a case of "Once a Specially Designated Terrorist, always a Specially Designated Terrorist."

In 2009, the Treasury Department - the Obama Treasury Department - issued a new set of restrictions so onerous that they are for all practical purposes impossible to comply with. The new license directed that, even for authorized types of expenses, things for which Treasury has already said he could spend money, payment could not “originate from a source in the United States.” What that means is that Salah’s family and friends were forbidden from helping him make ends meet. In addition, the license required him to keep records tracking every penny he spent to prove that each and every such expenditure fit the vague criteria of “basic maintenance.” So he can't buy a book. He can't even buy a newspaper. He can't go to a movie. He can't go to a concert. He can't go to a sporting event. He can't donate to a political campaign. He can't even volunteer for a political candidate without prior approval of the Treasury Department.

What's more, his religion (he is a Muslim) requires him to make regular donations to charity - he can't do that - and to at some point make a pilgrimage to Mecca - and he can't do that, either. If this was the old Soviet Union, we'd say he'd been made a non-person.

But here's the real kicker: In December 2011, a unanimous panel of the Ninth Circuit Court of Appeals ruled that many of these restrictions involving political campaigns and "coordinated advocacy" are clearly unconstitutional, that they violate the First Amendment rights of both Salah and organizations that might want to work with him. But nearly a year later the Treasury Department still has not amended its regulations to conform to that ruling. They are simply ignoring it.

Treasury is not alone in ignoring court rulings that involved the anti-terrorism regime. In July 2011, the DC Circuit Court of Appeals agreed that the TSA should have initiated a public rulemaking - that is, should have allowed a period of public comments - before deploying those full-body scanners as a primary screening method at airports. The court ordered the agency to begin that process of taking comments "promptly." More than a year has passed since that court order and the TSA has done nothing.

The Electronic Privacy Information Center recently went back to that court to request a court order requiring the agency to begin the comment process within 60 days or suspend the use of the scanners entirely. In response, the TSA has claimed that the earliest possible date it could "finalize documents" before beginning the public comment process would be "the end of February 2013" - more than 18 months after it was directed to do so "promptly," and during which time an unknown amount of goods and money was stolen from passengers passing through the TSA checkpoints at airports by the agents doing the checking.

In fact, it turns out that TSA agents have been stealing from airline passengers' belongings on a regular basis. Nearly 400 agents have been fired for stealing since the agency was founded; one of them, a guy named Pythias Brown, served three years in prison for theft and said he stole approximately $800,000 worth of cash and merchandise from travelers before he was caught. He called the stealing "very commonplace," "very convenient," and "massive."

As a quick sidebar to that, Sen. Chuck Schumer has called on the TSA to do random sting operations on its employees and that the TSA randomly screen its employees at the end of the work shift. It'd be interesting to see how TSA agents feel about being the targets of random searches instead of the targeters.

But I'm sure they won't mind - it is, after all, part of the overall plan to protect us from the "ooh scary" terrorists. (Be afraid, be very afraid.)

Making up part of that overall plan are the so-called fusion centers, which are supposed to share terrorism-related information among local, state, and federal officials. Hundreds of millions of taxpayer dollars have been invested in them over the last nine years. On October 3, the Senate's Permanent Subcommittee on Investigations released results of a study that found that the “intelligence” produced, the intelligence made available to federal agencies, was,quoting the report,
oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections, occasionally taken from already-published public sources, and more often than not unrelated to terrorism.
But don't worry, they are out there looking after us. Just ask Michael Galindo of Houston, Texas. In mid- September, he was taking photographs of a cloud formation as part of a volunteer program of the National Weather Service. Unfortunately for him, those buildings in the middle distance a couple of hundred yards away are a refinery. Someone from the refinery spotted him and called police, who called the local FBI Joint Terrorism Task Force - with the result that on October 5 the FBI showed up at Galindo's door and questioned him for 20 minutes.

Here's the thing, here's why this is a good wrap up to this: The FBI agent was satisfied with Galindo's explanation, but after questioning him for 20 minutes left him with the bit of advice, according to Galindo, to "just be careful next time.”

“Just be careful?” He had every right to do what he was doing. He had every right to be where he was. He had every legal right, every constitutional right, every logical right to do exactly what he did. But “be careful.” Oh, no, don’t do what you have the right to do. Don’t do what you’re free to do. Don’t do what’s justified for you to do. Oh no, don’t. “Be careful.” Don’t stand out. Don’t do what you have a right to do. Blend in. Be unobtrusive. Be completely inoffensive. Because if you don’t do that, remember: We’re watching you.


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