A Black Bag Job on the Constitution

A few weeks after the attacks of 9/11, a vigilant citizen in rural Skamania County, Washington noticed something strange: four black men dressed in turbans and robes taking target practice in a local rock quarry. Skamania County, known throughout the Northwest for the ripeness of its xenophobia, doesn’t have many Muslims and it has even fewer blacks. Phone calls were made to the local sheriff’s office. Soon a patrol car was dispatched to the gravel pit. The lawman’s eyeballs must have bulged at the sight: turbans, blacks and guns. Here was a trifecta in the terrorist profiling sweepstakes. The sheriff rang up the FBI and within hours the insidious new machinery of the Patriot Act was put into stealthy motion.

The FBI soon identified the men as: Jeffrey Battle, brothers Ahmed and Muhammed Bilal and Patrice Lumumba Ford. In the FBI men’s eyes Ford, a gifted student of Chinese languages and a former intern for Portland Mayor Vera Katz, was born with three strikes against him: he was black, his father was a former Black Panther, and he was named after the leader of the Congo, who was assassinated at the behest of the CIA. The G-men must have wondered how Ford had escaped their clutches to this point in his young life.

All of the men lived in Portland, Oregon and attended the same mosque. All are American citizens.

With this faint scent of evidence, the FBI rushed to the nation’s top spy court with a demand to begin a covert investigation of the men, who they alleged were would-be terrorists. The covert court swiftly gave the feds all they wanted: 36 warrants for wiretaps of phones and computers and secret searches of their homes.

Over the next year the men were put under 24-hour a day surveillance. Their every move was watched, their friends identified, each conversation tapped into and recorded. The FBI also sent a wired informant named Khalid Ibrahim Mostafa into their inner circle. Mostafa is an Egyptian-born auto mechanic, who coaxed Battle and others into inflammatory conversations and even recorded prayer services inside a Portland mosque.

In late October of 2001, the men traveled to Hong Kong, crossed into China and eventually landed in Bangladesh. There Battle supposedly approached a representative of Tabligh Jamaat, an evangelical Islamic sect started in India in 1923. The FBI alleges that this was the fatal moment when Battle crossed a treasonous boundary from which there could be no safe return. Tabligh Jamaat, the FBI charges, is a front for Osama bin Laden, a recruiting station for potential soldiers heading to al-Qaeda training camps in Afghanistan.

Most Islamic scholars dispute the connection as being more tenuous than the alleged links between al-Qaeda and Saddam Hussein. They say that Tabligh Jamaat is a largely apolitical sect far removed from bin Laden’s brand of jihad-happy Wahhabism. Indeed, Jeffrey Battle’s relatives say he was on a religious quest, made all the more vivid by the events of 9/11 and the vicious backlash against Muslims in the United States. Battle is a former US Army Reservist, who had lately worked as a security guard in Portland.

“He was looking to find the straight path,” says Abdullah Muhammad, Battle’s uncle. “People travel to Asia and live in mosques, visit Muslims in the home, study and teach and invite ‘slackers’ in the religion to come back. That’s what Jeffrey was doing. My nephew never stepped foot in Afghanistan.”

But the FBI claims something more sinister was afoot. They charge that the men were trying to get into Afghanistan to join up with the Taliban and fight against US troops and the US-backed Northern Alliance. Whatever their intent, the FBI agrees that the men never made to Afghanistan. Nevertheless on October 4, 2002, the Justice Department, armed with secret evidence gained through secret warrants, indicted Battle, Ford, and the Bilal brothers, charging them conspiring to wage war against the United States. Also indicted was Habis Abdu al Saoub, a Jordanian native, who the FBI fingers as the leader of the group.

Also indicted was October Martinique Lewis, a Portland nurse’s assistant, who was charged under the Patriot Act with providing aid to terrorists. Lewis is Battle’s ex-wife and allegedly sent him $2,130 while he was traveling in Asia. Lewis says she had no idea that Battle was planning to enlist in the Taliban and merely thought she was helping underwrite his spiritual journey. Under the expansive trawl of the Patriot Act, Lewis didn’t even have to be aware the money might be spent on terrorist activities. Indeed, the law allows her to be prosecuted even if the money was used to buy innocuous items such as food, cab fare or cigarettes. Once Battle was labeled a terrorist (or a terrorist associate) by the FBI any money that came his way was considered criminally tainted.

Ford, Battle and Lewis were arrested in their apartments in Portland. Muhammad Bilal was arrested in his sister’s Detroit home. A few days later, his brother Ahmad surrendered to police in Mayalasia. All have pleaded not guilty. Al Saoub remains at large.

Ashcroft and his underlings were anxious to leak malicious information about the defendants, referring to the bumbling group as “a terrorist cell.” His deputies spoke of plots to machine-gun synagogues and schoolyards. Neighbors came forward to tell of suspicious late night meetings in the parking lot of Battle’s apartment complex. It was said that Battle’s five-year old son lectured kids on the playground on the merits of the 9/11 attacks. The fear factor was fiercely fanned. “The enemy recruits in this country, it trains in this country and acts in this country,” warned Charles Matthews, the head of the FBI’s office in Portland.

But Ashcroft and his prosecutors balked at allowing the defendants to see the affidavits the FBI filed with FISA court showing the reasons for granting the secret warrants. This is no trifling matter. It’s a stab at the heart of the Fourth Amendment’s protection against unreasonable searches and seizures. The Fourth Amendment rudely has been battered by the drug war; but it seems likely to be euthanized by Bush’s anti-terror crusade.

“While all citizens should certainly be cognizant of the need for National Security, we must not abrogate the need for a fair trial and the Due Process clause of the Constitution,” says Jack Ransom, October Lewis’s lawyer. “The court must disclose these materials to the accused where such disclosure is necessary to make an accurate determination of the legality of the surveillance. How do you attack applications for surveillance that you haven’t and won’t see? We’re shooting in the dark.”

But it gets worse. Not only did the Justice Department object to the defendants seeing the applications for the warrants, they also objected to allowing a federal judge examine them in camera to determine if they could be turned over without compromising national security. Even stranger, Federal Judge Robert Jones agreed with the feds, in a ruling that amounts to a kind of judicial self-emasculation. These day’s judges are so cowed by the rhetoric of terror that they are willing to surrender the last real check the Republic has against the legal depredations of prosecutorial zealots.

“This is a very troubling development,” writes Anita Ramasastry, a law professor at the University of Washington. “Unless this ruling is overturned on appeal, it will mean that a US citizen can now be convicted of a crime without ever knowing the reasons why the government was given permission to spy on them in first place.”

Judge Jones’ ruling places a judicial hood over the defendants and their lawyers, as blinding as those on the heads of the prisoners at Camp X-Ray. The Portland 6 don’t know the basis of the charges against them. They haven’t even been allowed to see much of the evidence collected on the basis of those secret warrants. In the future, American school children won’t need to worry about suspending their disbelief when compelled to read Kafka’s literary mind games. It’ll be seem as pedestrian as Hemingway.

Over the course of a year, the feds amassed 271 different wiretapped conversations by the defendants. To date, only 86 tapes have been turned over to the defense teams. From the snippets released to date, the banter between Battle and his cohorts is pretty tame fare as jihad-talk goes. You’ll find much more incendiary religious rhetoric streaming out of Pat Robertson’s daily broadcasts than what was caught on these tapes.

The Portland Six case will most likely be the first direct challenge of the Patriot Act’s provision giving the FBI the right to get secret warrants to snoop on American citizens from the clandestine court set up under the Foreign Intelligence Surveillance Act or FISA.

FISA was a well-intentioned law that has now gone amok. FISA was created in 1978 by reformists in the congress following the revelations made by the Church Committee of widespread domestic spying on political dissidents by the FBI and CIA. FISA’s spy courts were meant to insure that the use of secret wiretaps and searches by the FBI were limited to counter-intelligence investigations meant to uncover spies for foreign governments. In practice, the courts served as little more than rubber stamps, rarely rebuking any request brought to it by the Justice Department.

Even so, the Patriot Act grossly expanded the power of the FBI to use the FISA court to get secret warrants to launch criminal investigations of US citizens. The original language of FISA required that the sole purpose of a request for secret search and wiretap warrants must be counterintelligence. The Patriot Act amended this pivotal phrase to “a significant purpose” must be intelligence gathering. This subtle edit creates a kind of black bag job provision in the law, which slashes right at the heart of the Bill of Rights. It is now clear that only a handful of members of congress read this provision before voting to enact it into law and even fewer had any idea of its implications-not that that would have changed many minds in this paranoid climate.

But in a rational environment, it should have sent chills down their spine. Because the FBI now enjoys the kind of unrestrained investigative power that J. Edgar Hoover only dreamed about. Not just the power to snoop into every private corner without any hint of wrongdoing, but the power to use whatever they find as evidence for future prosecutions. “The question is whether it’s constitutional to tap a suspect’s phone in a criminal investigation, without probable cause of criminal activity,” says David Cole, a professor of constitutional law at Georgetown University and author of the very useful book Terrorism and the Constitution.

There was certainly no showing of probable in the Portland Six case and no evidence to believe that the FBI could have prevailed on a federal judge to issue even a normal search warrant. So Ashcroft’s men retreated to offering ominous homilies about might-have-beens. One of the prosecutors called it a case of “preventive arrest.” Here we get to sleazy core of the matter. The Portland Six aren’t charged for anything they did. There’s no evidence that they planned to carry out any attacks on the US military or on American citizens. No evidence they met with al-Qaeda or the Taliban. They’re charged with acting on an impulse to go to Afghanistan, an impulse they never realized. So what we’re left with is the prosecution of a thought crime and anyone who crossed these men’s path and befriended them in any way could find themselves labeled as being part of this inept conspiracy. We’ve entered an era of preventitive arrests and pre-emptive wars. (Philip K. Dick has already written the history of the Bush Administration and he’s been dead for 20 years.)

This prosecutorial strategy is not new. For the past couple of decades, Department of Justice lawyers have sharpened their teeth on similar tactics, using the RICO statutes and conspiracy laws like legal cluster bombs to take down as many bystanders as possible, even though their connection to criminal activity is remote at best. These days it’s all about conviction rates, the body count of the Justice Department. As in Vietnam, it’s all about numbers, not about who was taken down or how.

But the Patriot Act gives the feds sweeping new powers that go far beyond a mere fishing expedition into the lives of US citizens. Under Ashcroft, the Justice Department has become a factory trawler, casting legal driftnets into the populace that can ensnare anyone in its wake.

One of the first casualties of the Portland Six case was Sheik Mohammed Abdirahman Kariye, the prayer leader at the Islamic Center of Portland, where the Portland Six attended services. Kariye was arrested on September 8, 2002 at the Portland International Airport. He was charged with Social Security Fraud and the FBI leaked information to the press that airport security had found traces of TNT in his luggage. This turned out to be a lie. But the damage was done. Kariye was smeared as a would-be terrorist.

It gets more unsavory. Kariye became a target of the FBI in part because of the illicit recordings made in the mosque by FBI informant Khalid Mustafa under the auspices of the FISA court-recordings that flatly violate an Oregon law prohibiting wiretaps inside houses of worship.

“The government has this script,” says Stanley Cohen, Kariye’s lawyer. “They’ve got all these little pieces and they’re trying to fit them together. But it’s like a John Candy movie. It looks hot. It looks sexy. But there’s nothing there.”

These raids have rightly left the Muslim community living in a state of perpetual anxiety: fearful that their most private conversations and prayers are being tapped into by America’s secret police; fearful that they face deportation merely because of their religious practices; fearful that they may be rounded up, placed in an interrogation camp and no one will ever know what has happened to them. “The feeling that someone could knock on your door at night and you could be taken away-that’s a feeling I thought I left behind when I left Baghdad in 1979,” says Abul Haider, spokesman for the Islamic Center of Beaverton, Oregon.

John Ashcroft, our minister of fear, craves even more power and he is using the arrest of the Portland Six as a cudgel to convince a cowering congress to give him all he demands. In a speech before Congress, Ashcroft said the Portland Six were proof that there were sleeper cells embedded within the American heartland (though this one seemed to be in deep state of hibernation), just waiting to strike. He said recordings revealed that the group “was amazingly aware of the impact of the Patriot Act” and changed their plans because of it. But that’s not good enough for the crowd now in charge of the administration of justice in this country.

A few days after Ashcroft’s speech, someone in the Justice Department leaked a draft of Ashcroft’s scheme to upgrade the Patriot Act to the Center for Public Integrity, run by Charles Lewis. Lewis immediately posted it on his website, where the plan generated howls of protest from defense lawyers and civil libertarians, but elicited mainly yawns from the mainstream press.

The 86-page draft bill is titled the Domestic Security Enhancement Act of 2003 and reads like marching orders from Savak, the notorious Iranian security agency from the days of the Shah. Among other instrusions into basic liberties, Ashcroft’s new snooping law:

*offers blanket immunity to snitches who knowingly provide false information;

* restricts access to information about toxic chemicals produced by American factories;

* permits personal information about US citizens to be shared with local law enforcement, even without any connection to terrorism;

* authorizes collection and cataloguing of DNA databases on Americans without court orders;

* allows for illegal surveillance without court orders and permits the Justice Department to strip Americans of their citizenship.

Give Ashcroft an inch and he’ll take the entire Bill of Rights.

Is it any wonder that Ashcroft and his retinue of fundamentalist prosecutors vow to defend the Pledge of Allegiance at all costs, while they pillage the Constitution? It is after all the nature of senescent empires to demand allegiance and criminalize dissent, even as they undermine the very foundations for the legitimacy of their rule. We are becoming a nation of snitches and paranoids. Even our judges have buried their heads in the sand as wraith-like prosecutors swarm unfettered across the land.

It took a revolution to secure the Bill of Rights and a civil war and century long struggles for women’s, labor, civil rights and environmental justice to transfuse those guarantees with meaning. If they’re lost in the name of Bush’s war on terror, it’ll take another revolution to get them back. But Ashcroft and his allies are now putting in place measures of domestic repression that will make that prospect a very remote fantasy indeed.

JEFFREY ST. CLAIR’s new book, Been Brown So Long It Looked Like Green to Me: The Politics of Nature, will be published this fall by Common Courage Press. He can be reached at stclair@counterpunch.org.


Jeffrey St. Clair is editor of CounterPunch. His most recent book is An Orgy of Thieves: Neoliberalism and Its Discontents (with Alexander Cockburn). He can be reached at: sitka@comcast.net or on Twitter @JeffreyStClair3