Taking Liberties: The War on Terror and the Erosion of American Democracy (5 page)

Why had the government focused on Sami? One of the Bush Administration’s immediate post-9/11 ideas about how to prevent terrorism was to disrupt terrorism-financing networks. Sections of the Patriot Act and a September 2001 Executive Order aimed to starve terrorists by going after the donors and networks that supported them. Suspecting that terrorism-financing networks existed within the United States—there was talk of a pipeline of money flowing from Brooklyn mosques to Al Qaeda—government agents set out to discover who was running those networks. It was certainly no coincidence that Sami was a Muslim and worked with an Islamic charity. Islamic charities were a prime focus of the government’s attention. But although, as
chapter 3
will recount, many other Muslim charities were put on government watchlists or simply put out of business, the Islamic Assembly was not on any watchlist. Other Patriot Act provisions allowed the government to study Sami’s banking records, and so the FBI also learned that he had made substantial contributions to Islamic charities.
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Of course, giving generously to charity is a religious obligation for all faithful Muslims, just as it is for observant Catholics and Jews.

As it turned out, the agents were looking too hard. The FBI misinterpreted various facts as conforming to their theory that Sami was a terrorist mastermind. For example, investigators hypothesized that Sami’s studies were really just a cover for his coming to the United States to raise money for terrorists. As support for this suspicion, they pointed to the fact that he had switched dissertation advisors in the middle of the school year—an unusual thing to do and a sign, they concluded, that he was stalling and that his dissertation was fictitious. But the actual reason Sami switched advisors was that his initial advisor was battling cancer. He found a new advisor so that he could finish his dissertation on schedule. Sami, a serious student who was maintaining a 3.8 average, was only a few months from completing his dissertation when the FBI entered his life.

Having focused on Sami, the government agents pulled out all the stops to come up with evidence to support their theory. Using yet another Patriot Act expansion of authority, they got the Foreign Intelligence Surveillance
Court to let them tap Sami’s phone and to review his e-mails—even though they did not have probable cause to believe that he had committed any crime. Over the course of a year, they intercepted about 10,000 telephone calls and 20,000 e-mails involving Sami, his wife, and his family. In this context too, agents misinterpreted innocuous information, perhaps due to mistranslations. For instance, during one telephone conversation, Maha told a friend of her delight on discovering that a Kraft cheese product her children had enjoyed in Saudi Arabia was also available in Idaho. This comment was taken as evidencing an anti-American attitude—that the only thing she liked about America was Kraft cheese.

Despite the mountain of information the FBI gathered about Sami, they evidently did not come up with any concrete evidence to show that the organizations with which Sami was associated were financing terrorism or that Sami approved of terrorism—no less supported it. Therefore, when Sami was arrested, he was not arrested on terrorism or even material support charges. He was arrested for immigration fraud, charged with lying on his student visa forms. According to the government, Sami lied in saying that he had come to the United States “for the sole purpose of” study and not to work—a promise they said was violated by his webmaster duties. Second, the government alleged that Sami had not complied with a post-9/11 requirement that men
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entering the country provide the government with a list of organizations to which they belong or which they support
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because he had not listed the Islamic Assembly. According to Sami’s lawyers, this was the first time anyone had ever been charged with a crime for not telling the government about their volunteer charity work.

Sami’s arrest in February 2003 sent shock waves through the university town. As many as a hundred federal, state, and local officials stormed the Idaho campus at 4:00
A.M.
, wearing flak jackets and brandishing large weapons. One frightened child in a family housing unit next to Sami’s, on seeing the swarm of armed agents, screamed, “Mommy, the war is starting!” Idaho, founded as a land-grant school, attracted students from the Middle East and developing nations who came to acquire skills in areas like agriculture and engineering, and so there were some 175 to 200 Arab students enrolled at that time. In addition to waking Sami and his family, agents rang the doorbells of all of the other Arab students at Idaho—referring to them as Sami’s “associates”—to question them about whether they knew anything about terrorism or terrorism financing. This started at about 5:00
A.M.
and continued until all had been questioned. These students reported being threatened with jail or deportation if they refused to answer questions; one
reported being interrogated for seven hours. Dragnet interrogation of Arabs and Muslims was one technique the FBI adopted after 9/11, questioning thousands of people who were not actually suspected of anything—except of possibly knowing other Arabs and Muslims.
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Immigration status—these students were dependent on their student visas—was a useful lever for getting people to submit to questioning they otherwise would have had a right to decline.

No one other than Sami was charged with anything. Liz Brandt, a member of the faculty at Idaho’s law school who found herself enlisting lawyers for the interrogated students to consult, recalls that the event was promoted to the media as the successful discovery of a sleeper cell in Idaho. Attorney General John Ashcroft fed that impression, describing Sami as part of a “terrorist threat to Americans that is fanatical, and it is fierce.”
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People who did not know Sami, Brandt says, tended to trust the government and to assume that Sami “must have done something really wrong.” But, she adds, people who knew Sami never believed that he could be guilty of supporting terrorism. “When I heard the charges, I thought, this just can’t be. It was like a War of the Worlds hoax.”

The prosecutors argued that Sami was so dangerous that he should be denied bail pending his trial. But the federal magistrate judge who reviewed their arguments was not persuaded. Sami, who had been living a peaceful life with his family, did not seem likely to flee. The entire family was completely integrated into the community. The boys, ages nine, six, and three at the time, attended local schools and played soccer and skateboarded with neighboring children. Sami worked with food banks and an organization supporting military families. Maha had developed close friends. (After Sami’s arrest, the community formed a “protective shell” around the family, says Liz Brandt. Maha did not know how to drive, so neighbors regularly took her to the supermarket, for example, and everyone worked hard to soothe the children, who were traumatized by their experience and by seeing their father in jail.)

The magistrate judge ordered that Sami be allowed to await the trial at home. Instead of releasing him, however, the government tried another tack. The day after the federal magistrate judge ordered him freed, the government asked an immigration court judge to order that Sami be deported (on the theory that he was working in addition to studying) and to lock him up until his deportation. The immigration judge agreed, ordering that Sami be held pending his deportation and so Sami spent seventeen months incarcerated, in solitary confinement, locked in his cell
for twenty-three hours a day while awaiting his trial. Immigration charges were also brought against Maha, whose immigration status was dependent on Sami’s. As bewildered and shocked as Sami was by the charges against him, he told his lawyer, “They can do whatever they want with me. They can put me in prison for the rest of my life, but not my wife and children.” Maha agreed to “voluntarily” return to Saudi Arabia in exchange for the government’s agreement not to lock her up too. In November 2003, she was given three months to leave the country. This agreement was designed to allow her to remain in the country during Sami’s trial. But when the trial was later postponed for several months, the government refused to allow Maha and the children an extension. Sami therefore had to face the rest of his time in jail and the ordeal of a nine-week felony trial without his family. He occupied himself in jail by working on his dissertation, still hoping that he would be able to complete his degree.

Over a year after Sami’s arrest, the government decided that it had enough evidence to add terrorism-related charges—based on the material support laws—to the immigration charges. The indictment now alleged that the website Sami worked on encouraged contributions to Hamas, a Palestinian group blacklisted as a “foreign terrorist organization.”
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(The government’s theory about which terrorists Sami was supporting shifted more than once, from Al Qaeda to Hamas to Chechnyan rebels.) Using the broad net of the Patriot Act, the government charged Sami with the crime of providing “expert advice or assistance” to terrorists.
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Sami did have expertise in computer studies. But had he actually provided material support to Hamas or any other terrorists? The government’s view was that all the jury needed to believe to convict Sami was that he had used his expert skills as a webmaster in a manner that would enable people to encounter hateful ideas, perhaps be persuaded, and perhaps then offer their support. The potential sentence Sami faced was up to fifteen years on each of three terrorism-related charges, and up to twenty-five years on each immigration fraud charge.

In an opening statement at trial, prosecutor Kim Lindquist told the jury that Sami was supporting terrorists in Israel, Chechnya, and other locations through a network of websites used to recruit terrorists, to raise money, and to spread incendiary rhetoric. Juror John Steger’s first reaction: “When he got done, I thought, this guy’s going to be in jail for life.”

As Sami’s lawyer, David Nevin, pointed out, however, the government’s theory was so broad that it ran up against the Constitution’s guarantee of freedom of speech. The First Amendment had been interpreted to prohibit
prosecuting people for advocating ideas unless their advocacy is intended to and is likely to incite imminent unlawful action—the so-called
Brandenburg
doctrine.
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If Sami could be found guilty of a crime for posting fatwas on a website, Nevin argued, CNN could also be found guilty for airing speeches by Osama bin Laden.
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Ironically, an Israeli terrorism expert who served as a prosecution witness testified at the trial that he himself had posted much of the very same material on his own website,
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as had the BBC on its website. A lot of people were interested in knowing how jihadists explained themselves. Nevin asked the judge to dismiss the prosecution on the ground that it violated the First Amendment. The judge denied the motion, saying that an opinion explaining this decision would follow. No opinion ever followed.

Material Support of Terrorism

The law that was used against Sami had become progressively more hostile to First Amendment values. The first material support law, enacted in 1994,
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made it a crime to give terrorists concrete assistance like weapons or cash. That statute contained several critical exceptions: (1) people could not be prosecuted for humanitarian assistance, like providing medical care, to someone “not directly involved in such violations”; and (2) investigations could not be initiated on the basis of “activities protected by the First Amendment, including expressions of support or the provision of financial support for the nonviolent political, religious, philosophical, or ideological goals or beliefs of any person or group.”
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If someone supported a group that engaged in both terrorist and nonterrorist activities—like running a nursery school—the prosecution could only get a conviction by showing that the accused intended to support terrorism and that there was an actual connection between the donation and terrorist activities. And people could not be targeted on the basis of their religion or their associations.

Looking back, that was the legislative equivalent of a baby step. The first major expansion of this material support statute was signed into law by President Bill Clinton in 1996 as part of the Antiterrorism and Effective Death Penalty Act of 1996—a response to the Oklahoma City bombing. This revision spared prosecutors the burden of showing intent to promote terrorism and of showing how terrorist organizations actually used donations, on the theory that money was fungible.
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If a terrorist did not have to pay for medical treatment, the theory went, the money saved could be used to buy bombs. The provision guaranteeing special protection for First
Amendment activities was eliminated. These revisions made it considerably easier to get convictions but left less space for freedom of speech.

Five years later, the Patriot Act expanded the definition of material support to include any form of “expert advice or assistance”—spreading the dragnet wider and making the prosecutor’s job that much easier.
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“Expert advice or assistance” covers some acts that should certainly be criminal and in fact already were under other laws, like teaching terrorists to make bombs. But this term is so vague and open-ended that it has obvious potential for also capturing other kinds of conduct, including humanitarian aid. A doctor who provides medical treatment to a terrorist would seem to fit that description—or maybe a computer whiz. The statute contained no definition of “expert advice or assistance” at the time, so it was hard to tell what the limits of this concept might be, if there were any at all. Sami’s prosecution was the first occasion on which the government relied on the Patriot Act’s “expert advice or assistance” provision.