Taking Liberties: The War on Terror and the Erosion of American Democracy (8 page)

When she was finally released, Roya was unable to get a permanent job in Iran because she was still viewed as an enemy of the state. So she made the difficult decision to leave Iran for a neighboring country. But she found that even outside Iran she was threatened and so in 1998 she decided to immigrate to the United States. Because of her excruciating experiences and very credible fear of continuing persecution, the United States granted her political asylum.

Life in exile was hard. “Not a day goes by without my thinking about the repression, shortages, and other horrors my family and friends in Iran still suffer,” she says. And so when she settled in Los Angeles, Roya became involved with the Iranian community there and continued to work to promote democracy in Iran through rallies and educational events. She also raised funds for other refugees who had fled Iran and had no means of support, through an organization called the Committee for Human Rights.

In February 2001, after having been in the United States for about twenty months, Roya was in a Starbucks in Los Angeles when, to her utter shock and horror, FBI agents arrested her. The charge? Providing material support to the PMOI, which the government linked with the Committee for Human Rights. “This time I was being persecuted by a very different government for providing material support to the same group.”

This prosecution was made possible because the State Department had designated the PMOI as a “foreign terrorist organization” and therefore the prosecutors only needed to prove that Roya supported the organization in question. They did not need to prove that she had any intention of supporting terrorist activity. (Such proof evidently would not have been possible. Transcripts of conversations with Roya show that when undercover informants asked her if she was interested in supporting armed struggle, she insisted that she was only interested in providing humanitarian aid to refugees.) Did the prosecutors have to prove
that her contributions actually supported terrorist activity? No. Did the prosecutors need to prove that the PMOI actually was a terrorist group? No. They only needed to prove that the group had been designated and, under the later version of the material support law, that Roya was aware that the PMOI was on the government’s blacklist. (“We had no clue that what we were doing was illegal,” says Roya. “I had never even gotten a parking ticket.”)

What evidence did the Secretary of State have that the PMOI was a terrorist group? We don’t know, because such designations take place behind closed doors and can be based on hearsay evidence—like self-serving allegations made by Iranian government officials who regard the PMOI as a threat to their own hegemony. The PMOI’s stipulated mission, to promote a transition from Iran’s current fundamentalist regime to a secular democratic government, would seem to be consistent with United States foreign policy. But evidently President Bill Clinton’s State Department was more interested in 1997 (when the designation was first made) in the possibility of rapprochement with the Iranian government than in backing a pro-democracy movement, and Iran demanded condemnation of its leading political opponent as a condition of any thaw in relations.
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The statute allows a “foreign terrorist organization” to challenge its designation (assuming the organization has read about the designation in the Federal Register and acts within the strict time limits prescribed).
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The PMOI had tried challenging its designation in the United States courts, but the standard of review under the statute is minimal. The reviewing court is not allowed to consider whether the material relied upon was accurate, but only whether there was “substantial support” for the designation. So, not surprisingly, the PMOI’s designation was upheld.
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The courts are traditionally extremely deferential about matters of foreign policy. And as a foreign organization the PMOI does not have constitutional rights but only the limited procedural rights the statute confers.

But Roya and her codefendants, some of whom are American citizens, do have constitutional rights, including the right to due process. Because it was no defense under the statute that they had only worked to provide humanitarian relief and did not intend to support terrorism, Roya and her codefendants wanted to defend themselves by arguing that the designation was wrong. In their view, the PMOI simply was not a terrorist organization: the PMOI disavowed the strategy of targeting innocent people to make a political point. But the Ninth Circuit Court of Appeals, in California, ruled in 2005 that Roya and her colleagues
were not allowed to raise that defense either.
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Because the process of designation was secret, the court said, the designation could not be challenged even by someone whose freedom hinged on this decision. Right or wrong, as far as Roya and her codefendants were concerned, the designation was conclusive.

“My view of the American justice system when I came to this country was very different from what I learned about,” Roya says. “I had come to a country championed as the leader of the free world.” While the United States courts refused to allow her to question the designation of the PMOI, courts in the UK and the European Union ruled that the organization is not in fact a terrorist group and required that it be removed from watch-lists within their jurisdictions.
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Barack Obama took office while Roya’s prosecution was still pending. She might have hoped that the new administration would resolve her Kafkaesque dilemma, but as she listened to Obama’s inaugural address, she heard him express his desire to reach out to the mullahs in Iran and her heart sank. The prosecution continued unabated. Prevented from defending herself against the charges, she resigned herself to entering a conditional guilty plea in April 2009. Her lawyers are still planning an appeal on constitutional grounds—including a First Amendment argument that her fundraising and educational activities were nothing more than traditional political speech and so the material support statute cannot constitutionally apply to her.

Because the designation process takes place in secret, it is difficult to evaluate the United States government’s conclusions about the PMOI. We can’t know what the designation was based on. But even if the branding of this particular group as dangerous was based on reliable information, the important point here is that given the peremptory and secret nature of the process, such designations can be wrong and someone in Roya’s position could serve a lengthy sentence on the basis of a misunderstanding, or on raw politics. The government’s identification of groups as connected with terrorism has indeed been far from infallible, as the next chapter will show. I don’t know if Roya was right about this organization or if she could have convinced a jury that the State Department had misunderstood the nature of the PMOI, or was using her as a political pawn. But due process requires that she be given a chance to do so because that is only fair—and not just for her sake, but for ours. As the trial of Sami al-Hussayen shows, the constitutional right to trial by jury serves as an indispensable check on government decisions about who should be punished. Safeguards are
especially critical with respect to decisions made behind closed doors, because there is otherwise so little accountability. This material support law as now structured gives juries almost nothing to decide. By design, the law forces us to just trust the government to designate selected organizations, sometimes for political reasons (the PMOI but not the PLO or the IRA) and then to select people to punish for their association with those organizations. By offering the government a shortcut to conviction that bypasses key questions of personal culpability, this material support law prevents the American people from playing any meaningful role in evaluating whether it is fair to punish even well-intentioned support of selectively designated organizations.

The blacklist material support approach is based on the theory that certain organizations should be made “radioactive” so that they will not have any resources with which to do harm. This theory may well have seemed like a good idea in the fall of 2001, but experts differ as to whether it is actually the wisest approach to every insurgent group. The statute’s approach minimizes the significance of the fact that organizations are often multifaceted. What if the PMOI did employ a variety of strategies for promoting the goal of regime change in Iran, some violent and some nonviolent, just as the African National Congress (ANC) did in opposing the apartheid regime in South Africa? Roya thinks the comparison between the PMOI and the ANC is quite apt. Would an American jury, if asked, have been willing to convict Nelson Mandela of an American crime for his material support of the ANC? Of course Iran has an interest in preventing its insurgents from seeking regime change through violent or even peaceful means. But if the United States wants to use domestic criminal sanctions against those who support foreign organizations, the Constitution’s jury trial provisions are supposed to give the American people an essential role to play in that decision. Through our representative jurors, we would then have the ability to distinguish between people who give weapons to Al Qaeda and people who make donations to democracy-promoting organizations like the PMOI or ANC, regardless of whether those organizations have checkered records in their own countries. As matters now stand, we are excluded while all the key decisions are made behind closed doors. The other side of the “Just Trust the Government” coin, once again, is minimization of the role of the American people and of democracy itself.

As Roya’s case also reminds us, the War on Terror has been conceived as being far broader than a war on Al Qaeda and related anti-American groups. The dragnet material support laws not only can be but have been
used against Americans, citizens and noncitizens alike, whose crime is supporting regime change and democracy in Iran. “When I came to the United States,” Roya says, “I thought, I will be the voice of those who can’t have their voices heard. But for the past ten years I have been silenced. It seems that I have moved from one prison to another prison.” It remains to be seen whether the metaphorical American “prison” she describes will become another actual prison.

Peacemakers and Humanitarians

Another group designated as a “foreign terrorist organization” is the Kurdistan Workers Party, also known as the PKK. This group opposes the Turkish government’s treatment of Kurds, including, for example, what supporters characterize as systematic repression of Kurdish identity and the jailing of Kurdish children who attended protest demonstrations.

Ralph Fertig, a professor at the University of Southern California and retired judge, is a lifelong activist dedicated to nonviolence who has gotten to know some Kurdish advocates well. Ralph became involved with the Humanitarian Law Project because he wanted to offer his professional skills to try to persuade national forces to extend human rights to subject populations and to persuade insurgent groups, like the PKK, to use peaceful dispute resolution methods to achieve their goals rather than resort to terrorism and violence. He has campaigned on behalf of the rights of Kurds in Turkey with members of Congress and in the United Nations Commission on Human Rights, and he has conducted training sessions with Kurds from Turkey to teach and encourage them to take their grievances against the Turkish government to the U.N. Ralph says that the Kurdish advocates with whom he works do not disclose whether or not they are members of the PKK for fear of severe punishment or even summary execution.

When the Secretary of State designated the PKK as a “foreign terrorist organization” in 1997, Ralph and his colleagues worried about the consequences of this designation to their organization. Might their work now be subject to the vague language of the 1996 law, which had expanded the reach of the material support statute by eliminating the exemption for humanitarians who provide what might be considered to be “services,” “personnel,” or “training” to any group designated as a foreign terrorist organization? Might they be prosecuted? Could they honestly reassure people who wanted to work with them or donate money that they were not opening themselves to prosecution, or would they lose supporters?

Ralph and his colleagues, along with an organization working with another “foreign terrorist” designated group—the Sri Lankan LTTE,
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decided to seek help from the courts, with the assistance of lawyers at the Center for Constitutional Rights. In 1998, they brought a lawsuit arguing that some of the 1996 law’s vague provisions violated their First Amendment rights of freedom of speech and freedom of association as well as their right to due process. The case was wending its way through the California federal courts, with some success, when matters got worse. The Patriot Act further stretched the definition of material support to include supplying “expert advice or assistance” to any designated terrorist group—the elastic provision used to prosecute Sami al-Hussayen. So the Humanitarian Law Project (HLP) geared up again and, in another round of litigation, challenged this new provision which seemed even more likely to jeopardize their mission. The federal district court in California again agreed with HLP that parts of the statute were unconstitutional.
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Then, in 2004,
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Congress made several changes to clarify the material support law. Although Congress did not add an intent requirement of the sort that could have helped Roya Rahmani, Congress did prohibit convicting someone for supporting a “foreign terrorist organization” if that person did not know the group in question had been blacklisted.
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Some of the other 2004 clarifications were less helpful to HLP. The new law, for example, provided a definition of “expert advice or assistance” as “advice or assistance derived from scientific, technical or other specialized knowledge”
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—a definition that doesn’t seem any narrower or clearer. After eleven years of protracted and complex litigation, the Ninth Circuit Court of Appeals parsed all the group’s accumulated claims under the current statutes, upholding some of the challenged provisions but finding that others were indeed unconstitutionally vague.
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The Court of Appeals regarded general words like “training” or “expert advice or assistance” based on “other specialized knowledge” as terms that would leave a reasonable person in doubt about whether activities like HLPs were illegal. And so that court ruled that the government was not allowed to prosecute Ralph and his colleagues for talking to terrorists.