“Do you have any prejudice against Muslims?” We heard the judge ask a set of questions to each potential juror. To this inquiry, one middle aged white woman said, “Yes.” Judge William Duffey Jr. asked her to elaborate. “I’m afraid of them. They want to hurt us.” A former law enforcement agent also answered yes to that question. Both were chosen to sit on the jury at Ehsanul “Shifa” Sadequee’s trial in August 2009.
Sadequee was convicted of four counts of conspiring and attempting to support terrorists and a foreign terrorist organization. He did not provide material support to terrorist groups. He did not commit any acts of violence. A few online conversations, translations of Islamic texts, a video recording of Washington, D.C., landmarks, and paintball trips in the Georgia woods were presented as evidence to prove the potential of intent to provide support to a terrorist-identified group. The maximum sentence was 60 years in federal prison. The jury took less than seven hours to find him guilty. The judge sentenced him to 17 years in federal prison and 30 years surveillance, once released.
Atlanta-based organizers packed the courthouse every day of the trial with intergenerational, multiracial and multi-faith community members, legal advocates and supporters. We made sure Sadequee’s sisters and mother were interviewed and quoted in as much mainstream media coverage as possible. We attempted to restore a sense of Sadequee’s humanity to the public, who witnessed this trial unfold in the newspapers and radio broadcasts in Atlanta. After Sadequee had endured three-and-a-half years of torturous solitary confinement before trial, we understood the lighter sentencing was a sad victory of sorts. But we had not won anything.
Several of us stood in the hallway when the jurors left their deliberation chambers. One of the women said, “I wish we could have given him the death penalty,” and then got in the elevator.
Sadequee is just one victim of preemptive prosecution, in which loose application of conspiracy or material support laws, or other, similar tactics, are used to target individuals before any real harm has been committed. After 9/11, preemptive prosecution has been used to prosecute individuals whose beliefs, ideologies or religious affiliations raise concerns for the government. In the 15 years since the 9/11 attacks, the government has used preemptive prosecution liberally to root out domestic, “homegrown” terrorism.
Sadequee and his co-defendant, Haris Ahmed, represent collateral damage in the protracted and ambiguous War on Terror. This case and others like it also represent a reconfiguration of legal frameworks to attack people of color, Muslims, immigrants and political dissenters based on prosecution before a crime is committed. We must understand and contend with these new legal frameworks in order to protect basic human rights and also to protect social movements’ capacity to oppose injustice.
The threat of terrorism has justified detention, incarceration and mass surveillance. Post-9/11, hundreds of Muslims, South Asians and Arab community members were detained and investigated in connection with the attacks. Eight men arrested on immigration charges, who were then detained as suspected terrorists, filed a class-action lawsuit on behalf of themselves and their fellow detainees alleging they were held based solely on their religion, race, ethnicity and immigration status. These individuals were beaten and suffered verbal abuse whilst in detention and were deprived of sleep and contact with the outside world. Their right to practice their religion was also violated. Not one of them was charged with terrorism. Their lawsuit against Bush administration officials was reinstated by the Second Circuit in June 2015.
The USA PATRIOT Act changed surveillance laws to make it easier for the U.S. government to obtain personal information without checks and balances. FBI agents can use Section 505A of the Act to obtain personal information such as phone records, computer records, credit history and banking information on the basis of National Security Letters (NSLs), which are similar to subpoenas. The NSLs do not require judicial approval; therefore no check is in place on how the FBI gathers and uses personal information. From 2003 until 2005, the FBI issued 143,074 NSLs, from which there were only 53 reported criminal referrals to prosecutors. The USA PATRIOT Act also allows for “Sneak and Peak” searches in peoples’ homes or offices. Even under the sections of the USA PATRIOT Act that require judicial authorization, the Act only requires that FBI agents specify that their request is related to a foreign intelligence investigation. This makes the judicial review requirement more of a formality than actual meaningful oversight.
These broad surveillance tactics have a direct impact on communities. The Muslim Community Association of Ann Arbor, for example, has reported that their members have become less active within the community, and that attendance has dropped at prayers. They and multiple other associations, such as the Islamic Center of Portland, have also expressed concern that the government could be using the Patriot Act to target their members for investigation, and said that this has inhibited the religious and political expression of their members.
The Attorney General guidelines in 2008 also authorized “domain management assessments” which allow the FBI to map out communities across America by race and ethnicity, using crude stereotypes to hypothesize about the crimes they are believed to be likely to commit.
Alongside the rise in the government’s ability to monitor people, Muslims in America have seen a rise in preemptive prosecutions. After 9/11, the FBI began to target Muslims and convict them of conspiracy and material support on what a Human Rights Watch report says is weak evidence. The FBI also entrapped targets by using paid agents provocateurs. The government further prosecuted targets for non-terrorism-related crimes that they would have otherwise not prioritized. According to a report by Project SALAM, a legal advocacy group focusing on post-9/11 prosecutions of Muslims, trials often featured “excessive security, … questionable governmental ‘experts,’ mistranslations and mischaracterizations of the defendants’ words and other unfair tactics.” Out of the 399 terrorism prosecutions by the Department of Justice between 2001 and 2010, the number of preemptive prosecution charges, according to the report, was 289.
Once people are tried and convicted, they enter the prison system and experience the horrific conditions that have been deteriorating over the last several decades of the mass incarceration crisis. The Federal Bureau of Prisons created Communications Management Units, one in 2006 and one in 2008, used to isolate and segregate specific imprisoned individuals from the rest of the prison population. In 2010, there were between 60 to 70 prisoners in Communications Management Units, with over two-thirds of that population being Muslim, despite Muslims only representing 6 percent of the general federal prison population. Shortly after his conviction seven years ago, Sadequee was sent to a Communications Management Unit in a federal prison (he was finally moved earlier this year).
Political and economic incentives drive the effort to manufacture these crimes and establish legal frameworks for mass incarceration, even when, as in Sadequee’s case, there is little to no evidence of wrongdoing. In order to justify inordinate spending on the massive Homeland Security apparatus, over-surveillance is baseline and new suspects are constructed through preemptive prosecution strategies.
It’s not just preemptive prosecution: Since 9/11, the federal government has tightened the security apparatus on immigrants, too. In 2005, the U.S. government started implementing Operation Streamline. Operation Streamline, which subjects captured individuals who have crossed the border without authorization to criminal prosecution before they are deported. In 2002, prior to Operation Streamline, there were 11,000 prosecutions for unlawful entry and re-entry, compared to 2012, when there were 85,000 prosecutions. Operation Streamline has had a disproportionate impact on Latinos, and 88 percent of convicted defendants have been Hispanic. The trials often involve many shortcuts to due process requirements; a single proceeding may include anywhere from two dozen to over 100 individuals. They often end up with a guilty plea from defendants, most of whom have no prior criminal record, but become criminalized as a result of this process and have a higher likelihood of future U.S. prosecutions.
Between 2005 and 2012, the U.S. government spent an estimated $5.5 billion incarcerating undocumented immigrants in addition to those detained in the civil immigration system. This has been hugely profitable to the private prison industry, with just two private prison companies exceeding $1.4 billion in revenue from the federal government in 2011. The recent announcement by the Department of Justice on cutting ties with prison corporations is a positive step forward, but the Department of Homeland Security — founded a year after 9/11 — which is in charge of civil detention of immigrants—continues to deal with them. Indeed, 62% of detained immigrants are in facilities operated by corporations. Per a recent announcement from DHS Secretary Jeh Johnson, DHS will be reviewing its reliance on private prison corporations as well.
Like the ongoing War on Drugs, which continues to disproportionately lock up Black and Latino Americans, the War on Terror and the growing war on immigrants use tactics of isolation, surveillance and a false narrative of crime and justice to criminalize people of color. Incarceration, detention and deportation separate families and cultivate fear within communities. Fabricated notions about national security, exploited politically in the wake of 9/11, justify increased surveillance and tracking. Drug use is considered a crime rather than a public health issue; migration is considered illegal rather than a global pattern related to poverty, climate disasters, and wars and instability often instigated by Western powers; and practicing your faith (if that faith is Islam) is considered a threat to public safety.
Our legal system is being rewired to police symptoms of poverty, and even thought. This legal rewiring is racially biased and politically motivated to create frameworks that allow for broad abuses that can be applied to any ideology or social group.
In the current political climate, in which presidential candidates express explicit racial hostility, Islamophobia manifests as more than hateful language. In Georgia, for example, Muslims have been blocked from building a mosque and cemetery in Newton County after Islamophobic community backlash.
The connections between the ways in which different communities are attacked offer opportunities for greater collaboration through shared experiences. Multi-racial organizing strategies bring together communities facing similar problems from a variety of perspectives and positions. The Barrio Defense Committee models in Latino and U.S./Mexico border communities organize to provide support, protection and communication through existing family structures, schools, churches and sports teams. These strategies can inform organizing efforts in Black communities to address police checkpoints. Movements to address the impact of counter-terrorism are successful when organizations collaborate as multiracial and multi-faith alliances.
Fifteen years after 9/11 and ten years after Sadequee was kidnapped off the streets in Bangladesh to be tried in U.S. federal courts, social movements in the United States have an opportunity to reflect on the ways that counter-terrorism has altered the political landscape. The concern that crosses religion, race and ideology remains that in this era, “terrorism” can be legally defined and redefined to include anyone challenging police brutality, state policies or representatives of the state.
Less than a year ago, we entered a county courthouse in Georgia where a Black woman was arrested on terrorist charges based on videos she posted online addressing police shootings of Black people. The prosecution argued that the videos, which included angry statements against the police, aimed to galvanize viewers to violent action. Many, including Sadequee’s family, rallied to support her and to draw connections from the bloated War on Terror budget to the increase in preemptive targeting of those expressing dissent. If we allow these cases to be tried individually in the courts and in the media, we will lose a systemic battle for civil liberties and social freedom. When we make the connections across issues and communities, we can break the isolation and build a stronger long-haul movement for social justice.
Since the time of Sadequee’s trial, more and more Muslim families have organized despite the fear and stigma. Organizations are investigating patterns of preemptive prosecution, communities are aligning with people accused of “terrorism,” packing courthouses and using media outlets to ensure transparency and support.
Families and organizations have had to fight these cases one by one, with many losses to our community bonds and loved ones, but we are also learning from tactics of the War on Terror, the War on Immigrants and the War on Drugs to resist surveillance, criminal detention and preemptive prosecution. We are crafting stronger strategies based on a more comprehensive analysis of the situation. Communities are called to speak up when we see preemptive prosecution in any form, to analyze complex and horrifying situations like the Orlando shooting before jumping to conclusions about Islam and to organize and learn across our differences.
We are organizing for immediate wins on the legislative and legal fronts, and we are building a world that protects all people against fear, hate and violence. When we come together, we are stronger.
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Azadeh Shahshahani is legal and advocacy director at Project South and a past president of the National Lawyers Guild. She tweets @ashshahahani.