Taking Liberties: The War on Terror and the Erosion of American Democracy (6 page)

Throughout nine weeks of testimony and arguments, John Steger and his fellow jurors—three other men and eight women, including a banker, a PhD in education, and the owner of a lumberyard—didn’t hear any evidence that seemed to them to substantiate the material support charges. “There was not a word spoken that indicated he supported terrorism,” said John. The prosecution claimed that the charity’s website featured links to other websites inviting donations to organizations like Hamas; the defense explained that those links had once existed but had been removed before Sami became webmaster. The prosecutor argued that it did not matter under the law whether or not Sami intended to aid terrorists as long as he knew that the website he worked on solicited donations, but there was no evidence to support that contention either. The prosecutor also argued, correctly, that the material support law did not require the government to show that anyone had clicked on a link leading to Hamas or had actually made a donation to a terrorist organization. This case could be brought only because the government did not have to prove very much at all under the post–Patriot Act material support laws.
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But the jury found that the prosecution’s proof did not even meet that low standard.

The jurors came to understand that this trial was not just about terrorism but also about the First Amendment. “We talked,” John said, “about that we weren’t going to step on anybody’s rights to hold the opinion they had.” As the jurors learned or rediscovered, First Amendment law protects the right to read or to voice hateful opinions—and it applies to everyone lawfully in the country, not just to citizens. Many of the rights
the Constitution guarantees are, like the First Amendment, general limitations on what the government can do. Others, like the Due Process Clause, apply to all “persons” or all those accused of a crime and so cover citizens and noncitizens alike. Very few constitutional protections (like the Fourteenth Amendment’s hard-to-define “privileges and immunities”) are reserved only for citizens.

United States citizens are, of course, just as subject to the material support laws as Sami al-Hussayen. Even if the prosecution’s theory in the
al-Hussayen
case does not seem to threaten the average American with prosecution, it threatens our shared fundamental rights. The attempt to build a wall between the American people and hateful ideas is inherently inconsistent with one of the First Amendment’s core ideas. The First Amendment represents a commitment to trusting Americans, in this instance to confront the marketplace of ideas without having the government prescreen those ideas for us. The patronizing notion that the government should remove potentially dangerous ideas from the marketplace misconceives the Constitution’s underlying view of the relationship of the government and the individual. The material support law, read as broadly as it was in this case, transfers immense power to the government to control ideas and disem-powers the people.

Choosing constitutional principle over a fear-driven conviction, this Idaho jury of ordinary Americans took only two or three hours—after a nine-week trial—to agree to acquit Sami on all of the terrorism-related charges. They were not deterred by the fact that Sami was a Saudi citizen also charged with immigration fraud. The jurors debated the alleged immigration violations separately, finding those charges much more difficult. Whether Sami’s statements on the immigration forms were intentionally misleading and whether the forms themselves were unclear were hot topics of debate among the jurors for six days in a discussion so intense that some jurors were reduced to tears. The jury voted to acquit Sami on three of the immigration charges but was unable to reach consensus on the other eight.

Is this a
Twelve Angry Men
happy ending? Sami’s life was ravaged notwithstanding the decisive acquittals on the material support charges. He had been locked up and held in solitary confinement for seventeen months and his family was forced to return to Saudi Arabia without him. The fact that the jury had deadlocked on eight of the immigration charges meant that the government could retry him on those charges. With that prospect hanging over his head, Sami decided to drop his appeal from
the immigration court’s deportation order and return to Saudi Arabia to rejoin his family. And although he had escaped conviction under the dragnet material support law, this law remained available to ensnare other law-abiding people—including American citizens—and to cast a shadow on our First Amendment rights.

From the government’s point of view, it is easy to understand why broad laws like this one can seem desirable. The material support laws are designed to enable criminal prosecutions in situations where the government does not have proof that someone they suspect is a terrorist, or has conspired with terrorists, or is attempting to help terrorists. This expanded dragnet might conceivably catch an actual terrorist who could not otherwise be caught, although we have no way to estimate the likelihood of that happening. But what about the costs—the collateral damage to individual people, to the First Amendment, and to our concept of our relationship to our government—when these laws can capture the innocent and intimidate everyone else?

The desire to wield this broad a net, regardless of how great the potential costs might be, is typical of the Just Trust Us philosophy prevalent after 9/11. We are asked to assume that prosecutors won’t use the net against the wrong people and so the costs of this strategy can be controlled. But that optimistic assumption, as Sami’s case shows, doesn’t always work out so well in practice. Investigators are not immune to wishful thinking, no matter who is president. The investigators in Sami’s case wanted so much to find and disrupt a terrorist-financing network that they did not seem to notice that they were molding the facts in a procrustean fashion—or that their theory of the case was a severe threat to First Amendment values. And so they made a serious mistake in this case. But even if prosecutors were superhumanly able to make only the wisest choices in deciding whom to charge, the very existence of this statute stifles free speech. Why would other students or computer experts agree to help run a chat room or post controversial materials if the result could be criminal prosecution? Will people become fearful that informing themselves by reading the ravings of terrorists, or associating themselves with any Islamic charity no matter how legitimate that charity is, might leave them in Sami’s position—a focus of the government’s attention even if they have not done anything other than add to a conversation? What if the next jury isn’t as thoughtful as John Steger and his neighbors?

The government got this one wrong but these Idaho jurors, with this trial as their crash course in First Amendment law and values, stood up to
defend the Constitution. Ultimately, the Constitution itself gets the credit for providing the fail-safe of jury trials. In Article III of the Constitution as well as in the Sixth Amendment, the framers expressed their trust in the American people by empowering us to protect our rights by deciding whether someone the government has charged with a crime should be convicted. We are not told to just trust the government; we are asked to think for ourselves. As the Constitution’s Preamble promises, we
are
the government. John Steger and his fellow jurors vindicated the Constitution’s faith in the American people. They resisted any urge they might have had to lock up Sami al-Hussayen just in case the government’s suspicions about him were right after all despite the lack of evidence—a victory for due process; they resisted the idea that a person can be prosecuted for making hateful ideas accessible to others—a victory for the First Amendment; and they resisted lowering their due process and First Amendment standards because Sami was an Arab, a Muslim, and a foreigner—a victory for the guarantee of equal protection of the laws. But the expanded material support law still remains available for use or misuse on other occasions.

Sami is back in Saudi Arabia, teaching at a university and continuing his computer work. Profoundly affected by these events, he is still trying to reconcile his own experience with his lifelong belief that the United States stands for what is good and right. As for the residents of Moscow, Idaho, Liz Brandt says that watching these events unfold brought the liberals and libertarians of that community together. The liberals were already suspicious of the Patriot Act, which, she says, made this all possible because it did not provide enough protection against the government “running amok.” To the libertarians, she says, the vision of armed federal agents in flak jackets occupying the Idaho campus due to a mistake, and then not backing off even as their case fell apart, was chilling. “This just looked like huge government, because it was.”

The Football Player

Another consequence of the misguided prosecution of Sami al-Hussayen was that it derailed the life of an American citizen who was no guiltier than Sami of helping terrorists but never got the chance to be exonerated by a jury. Sami’s acquittal did not undo the damage that his prosecution brought to himself, to his wife and children, or to a young man he had met at Idaho.

Lavoni T. Kidd was born in Wichita, Kansas, and attended the University of Idaho, where he was a star running back on the football team, the Vandals, leading the team in rushing in 1995.
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(“They had plays designed just for me.”) Both his parents were also American-born citizens—his father worked as a corrections officer and his mother at IBM. His grandfather was a Pentecostal minister. Lavoni’s Idaho football coach was a very important person in his life. (“John L. Smith taught me to be a man. I still hear his voice in my head all the time.”) Another critical development during his college years was that he studied religion and found the one religion that he felt fulfilled him spiritually. He converted to Islam, changing his name to Abdullah al-Kidd. His grandfather, although far from pleased that his grandson had not decided on the church, was nevertheless glad that he found a role for prayer in his life. Other members of the African-American Kidd family might have related this conversion to the famous decision of another athlete, boxer Cassius Clay, to convert to Islam and change his name to Muhammad Ali.

Serious about his newfound religion, Abdullah was delighted to receive a scholarship from a Saudi university to study Arabic and Islamic law in the spring of 2003. He planned to fly to Saudi Arabia on March 16 to begin work on his doctorate in Islamic studies. Instead he was dramatically arrested at the ticket counter at Dulles International Airport, handcuffed, and interrogated. He was taken into custody and moved, in painfully restrictive shackles, from Virginia to Oklahoma and then to Idaho by way of Arizona and Wyoming. He was locked up in high-security prisons where he was strip searched, rarely allowed to leave his cell, denied showers, denied visits by his family, and barely able to sleep under the bright lights that shone twenty-four hours a day. “It was the most horrible, disgraceful, degrading moment of my life,” he says. “I was treated worse than murderers.”
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After sixteen days of this nightmarish ordeal he was finally released from custody, but on the condition that he surrender his passport, confine his domestic travel to four states, move in with his in-laws in Nevada, meet with a probation officer regularly, and agree to home visits. Desperate for work, he took a job moving furniture. After living under these trying conditions for fifteen months, Abdullah had lost his scholarship, his wife, and his patience. He was unable to find a steady job because, in his words, he was “treated like a felon.” He began to suffer heart palpitations and insomnia.

Why was he arrested? Not because he was charged with any crime. The Fourth Amendment, which prohibits unreasonable searches and seizures,
prohibits arrests unless they are backed by probable cause to believe that a suspect has committed a crime. Evidently, no one dared to claim that probable cause existed in this case—even under the lenient material support laws—and as an American citizen, Abdullah was not subject to immigration laws and so the government could not fall back on the pretext used in Sami al-Hussayen’s case. So the government resorted to a different pretext, arresting Abdullah as a material witness on the theory that he had known Sami al-Hussayen at Idaho and that the government needed his testimony at Sami’s trial. The application for a material witness arrest warrant alleged that Abdullah had met with Sami al-Hussayen’s “associates”—that is, other Arab students at Idaho—that he had contact with the same Islamic charity featured in Sami’s prosecution, and that at one point he had been involved in a financial transaction with Sami. The affidavit did not say just what evidence the prosecutors thought Abdullah might be able to offer at Sami’s trial. In fact, he was never called as a witness in any proceeding. After Sami’s trial, an FBI supervisor in Spokane told a reporter that government agents thought that Abdullah had information relevant to one of the immigration charges—not a terrorism or terrorism-financing charge, but the charge that Sami had violated the terms of his visa by working. The prosecutors, the supervisor said, had intended to call him as a witness but then changed their minds for strategic reasons.
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The explanation that Abdullah was arrested because he had information about a routine immigration violation is impossible to square with the severity of his treatment—he was treated as a high-security prisoner, and kept in a cell in Alexandria, Virginia, that he was told had housed John Walker Lindh and Zacharias Moussaoui, both of whom are serving lengthy sentences for terrorism-related offenses. The same FBI supervisor also described “red flags” that led the FBI to be suspicious of Abdullah himself—like the nature of some books and tapes about Islam that he had possessed or sold. And FBI Director Robert Mueller, reporting to Congress on successful antiterrorism efforts, listed Abdullah as one of five suspected terrorists in custody.
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The other four were charged with crimes; Abdullah never was. Perhaps Abdullah al-Kidd was deemed guilty by association with ideas, as Sami was; perhaps he was deemed guilty because of his association with Sami, who wasn’t even guilty.