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On March 5, in federal district court in Alexandria, Virginia, Judge Leonie Brinkema delivered her verdict in the case of three American citizens — Masoud Khan, 32, Seifullah Chapman, 31, and Hammad Abdur-Raheem, 35 — who were charged with participating in a conspiracy to aid and abet terrorism. (The three had waived their right to a jury trial.)
Brinkema found the three men guilty. As a result of the finding of being labeled "terrorists," the men now face prison terms of fifty to one hundred years.
Yet plainly, these men are no terrorists, as I will explain below. Instead, defense attorneys have made a convincing case that the men were indicted and convicted primarily because they are Muslims.
Even the Government Did Not Initially See This as a Terrorism Case
You need not take my word for the fact that these men weren’t terrorists. Take the government’s word, instead.
According to a report in a June 28, 2003 Washington Post article, Michael E. Rolince, in charge of the Washington FBI field office, conceded that the government had no evidence of specific plots against U.S. targets at home or abroad. "A lot of this is about preemption," he said.
A lot? How about the entire case? And since when is "preemptive" prosecution constitutional? Apparently, when you are a Muslim in post-September 11-America.
The government did not initially charge these men with terrorism. Instead, the government charged the three men, along with eight others, with conspiracy to violate the Neutrality Acts — obscure, longstanding, yet rarely-enforced laws that make it a crime for Americans to attack countries with which the United States itself is at peace.
The basis for these charges was that all eleven men were, in the past, supporters of Lashkar-i-Taiba — an Islamic group that would like to oust India from Kashmir, and that has been accused by India of mass killings of Sikhs, and of partial responsibility for a December 2001 attack on India’s Parliament.
In late 2001, the U.S. declared Lashkar-i-Taiba a terrorist organization. However, at the time the eleven men were alleged to have plotted to support the group, the organization was not yet on the list.
Nor did the men "attack" anyone, or any country — as the Neutrality Act requires. Instead, prosecutors alleged that they played paintball, and fired legally owned firearms in the Virginia countryside, in order to prepare to someday help Lashkar-i-Taiba if necessary. (Two of the men also admitted to being in a training camp in Pakistan, and one of said he helped to recruit others to join in support of Lashkar-i-Taiba. But again, these activities preceded Lashkar-i-Taiba’s designation as a terrorist organization.)
Prosecutors called these activities "paramilitary training" and "preparation for violent jihad" — although both playing paintball and firing a gun are perfectly legal in Virginia.
To shoehorn these facts into a Neutrality Act prosecution, the prosecution also had to insinuate that this "training," alone, was in effect an attack on India. Indeed, the government’s whole case was based on speculation that these men might someday go to fight on the side of Pakistan — ironically, an American ally. That’s a far cry from actually going right now to fight for a U.S. foe — the kind of conduct the Neutrality Act seeks to punish.
Plainly, the Neutrality Act charges were not strong. After all, the Neutrality Act generally allows prosecutions of Americans who go to war to fight against American allies — not Virginians who play paintball and politics in their own backyards, imagining they may someday aid a political organization they support.
The Terrorism Charges Were a Coercive Plea Bargaining Tactic
Perhaps realizing the weakness of the Neutrality Act charges, the government offered three-to-eleven-year sentences to the 11 men, if they would plead guilty. Of course, these are hardly the harsh sentence we would expect the Bush Administration to mete out to true terrorists.
Unsurprisingly, four of the 11 pled guilty early on. Even innocent persons may rationally choose a three-year prison term over the chance of a 50-year sentence. And Muslims, after September 11, may have seen a 50-year sentence as a certainty.
The remaining seven men were then the subjects of superseding indictments in which new charges of conspiracy to aid and abet terrorism were added. And this was not terrorism by Lashkar-i-Taiba, but terrorism by the Taliban and Al Qaeda.
Such charges, of course, made it even less likely that the seven men could receive a fair trial — especially in the conservative Eastern District of Virginia. So, not surprisingly, two more men — including the two who actually went to the training camp — pled guilty shortly after the superseding indictments were handed down. For their cooperation, they too received promises of sentences of 3 to 11 years.
That left five men. Charges against two were completely dropped. Three insisted on going to trial — the three that were just convicted by Judge Brinkema.
Why did these three Americans insist on going to trial? My guess is that they were innocent. Why else would they fight what they knew to be an uphill battle, at great risk, rather than accept a few-year plea bargain, as others in a similar situation had done?
Consider the following hypotheticals: Would Irish Americans who played paintball and played with guns in order to support the IRA have been similarly treated?
What about Jewish Americans who played paintball and engaged in target practice to train to support the Israeli army’s actions in the Palestinian territories?
And even if these Irish and Jewish Americans were charged, would anyone possibly suggest that they were terrorists who might someday attack the United States as well?
Judge Brinkema suggested exactly this with respect to the three Muslim American defendants. She said she believed that those convicted might someday take up arms against the United States.
Yet the defendants’ only proven animosity–if any — was toward India, over its actions in Kashmir. There was no evidence to support the claim that they had any political animosity toward the U.S. — let alone that they would ever violently attack their own country.
A Prejudiced Verdict? Using Religious Belief As a Sword Against Defendants.
The evidence against the three men came from three basic sources, all of which are troubling.
One source was the testimony of their co-defendants who had pled guilty in exchange for light sentences, based on their willingness to give this very testimony. Again, these co-defendants had been under tremendous pressure to take these plea bargains, regardless of their own guilt or innocence — and to testify in support of the government, regardless of the guilt or innocence of the men they were testifying against. Can testimony be truly credible when it is given in exchange for freedom?
Another source was the three men’s political beliefs: They thought India ought to get out of Kashmir, and said as much. But of course, that was their right, as Americans protected by the First Amendment’s free speech clause.
Another source was the three men’s place of worship. They attended a Virginia mosque in which the Kashmir issue was discussed, and India’s actions criticized. But of course, that was their right, as Americans protected by the First Amendment’s free exercise clause.
Three tainted sources of evidence led to three convictions.
Obviously, the government does not — and cannot — prosecute every supporter of a cause of which it does not approve. But Muslims today are easy targets. The evidence suggests that these prosecutions and convictions were motivated by discrimination and a desire to send a message to Muslims, not out of concern for national security or justice.
The evidence also suggests that the three men who exercised their right to a trial will serve long prison terms–what in effect will be life sentences–not for their actions, but rather for their insistence on exercising that constitutional rights.
The prosecutorial strategy of "Plead guilty or be labeled a terrorist" is coercive, and wrong for our government to employ in any case, terrorism or no terrorism.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. 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. She can be reached at: firstname.lastname@example.org