Terrorist by Association
The Justice Department targets nonviolent solidarity activists.
September 24 began like any other Friday for Joe Iosbaker and Stephanie Weiner. Then, at 7 a.m., FBI agents knocked on the door of the Chicago couple’s house in the city’s North Side.
Armed with a search warrant, more than 20 agents examined the couple’s home, photographing every room and combing through notebooks, family videos and books, even their children’s drawings. Some items were connected to their decades of anti-war and international solidarity activism, but others were not. “Folders were opened, letters were pulled out of envelopes,” says Weiner, an adult education professor at Wilbur Wright College. “They had rubber gloves and they went through every aspect of our home.” (See video interview with Weiner and Iosbaker below.)
Ten hours after their arrival, as television news crews filmed and activist supporters stood on the sidewalk, the agents drove away with nearly 30 boxes of material, including t-shirts and a photograph of Malcolm X. By that time, Iosbaker and Weiner had been served subpoenas to appear before a grand jury investigating “material support” for “foreign terrorist organizations.” And they knew theirs wasn’t the only home invaded that day. More than 70 FBI agents had raided seven residences in Chicago and Minneapolis and questioned activists in Michigan, California and North Carolina, serving subpoenas to 11 people. A few days later, the Justice Department subpoenaed members of the Minnesota Anti-War Committee (AWC), whose office was also raided on September 24, raising the number to 14. (Editor’s note: five additional Chicago-area activists were subpoenaed in early December; see update below.)
The grand jury and FBI are looking for evidence that connects the 14 activists and their “potential co-conspirators” to two organizations: the Revolutionary Armed Forces of Colombia (FARC) and the Popular Front for the Liberation of Palestine (PFLP), which are both on the State Department’s “Foreign Terrorist Organizations” list. None of the 14 has been charged with a crime, and all deny providing “material support,” including money, to any foreign organization.
Citing the Fifth Amendment, all 14 are refusing to testify before the grand jury, which they say is a secretive arm of a government intent on silencing critics. (The U.S. Attorney’s office conducting the investigation declined to comment. The search warrant affidavits justifying the FBI raids remain under seal.)
Most of those subpoenaed, including Weiner and Iosbaker, have been active in the labor movement and/or are members of the Freedom Road Socialist Organization (FRSO), a self-described “socialist and Marxist-Leninist organization” with about 100 members. But affiliations vary: 71-year-old great-grandmother Sarah Martin belongs to the Minneapolis-based group Women Against Military Madness; Hatem Abudayyeh is executive director of the Arab American Action Network, a Chicago social services agency; others are connected to Students for a Democratic Society (SDS), the Palestine Solidarity Group-Chicago and the Colombia Action Network, which has protested U.S. military aid to Colombia and the assassinations of unionists there. The only connection they all have in common is that they all participated in an AWC-organized rally outside the 2008 Republican National Convention in St. Paul.
Except for Mick Kelly and Tom Burke, FRSO members who have interviewed PFLP leaders, and Jess Sundin, who met with FARC members 10 years ago during a visit to Colombia, none of those subpoenaed say they have communicated directly with members of FARC or PFLP. But many of the activists are sympathetic to those organizations’ goals and some have traveled to Colombia and Palestine as part of solidarity delegations.
“Anyone who does international solidarity or anti-war work, anyone who goes against the grain of American politics, is affected by this,” says Kelly, a University of Minnesota cook and Teamster. “It’s extremely important to push back against this repression. It affects the movement as a whole.”
The Supreme Court’s ‘deeply chilling effect’
The phrase “material support for terrorism” brings to mind money and weapons, or other goods and services that directly support a terrorist organization’s violent objectives or actions. But in June, the Supreme Court in Holder v. Humanitarian Law Project upheld a much broader definition of material support – one that criminalizes speech advocating peace and human rights if it is “coordinated” with an official terrorist organization. It is this ruling that sets the stage for September’s raids.
“For the first time, [the court] actually says it’s criminal to speak out, to associate,” says Michael Deutsch, an attorney with the Chicago-based People’s Law Office and one of the National Lawyers Guild members working with the activists. “The ruling criminalizes First Amendment activity. It’s quite ominous.”
Material support for terrorism was first criminalized by the Anti-Terrorism and Effective Death Penalty Act of 1996. The 2001 PATRIOT Act broadened the definition of “material support” to include “expert advice or assistance” and provided a maximum sentence of 15 years. (The American Taliban fighter John Walker Lindh was charged with, but not convicted of, providing material support to al Qaeda.) In 1998 the Humanitarian Law Project went to federal court to challenge the material support statute. The nonprofit group wanted to assist the Kurdistan Workers’ Party (PKK) with conflict resolution and human rights monitoring. It was later joined in the lawsuit by Tamil-American organizations wishing to provide medical assistance to victims of the 2004 South Asian tsunami, which would have required working with the now-defeated Tamil Tigers, which, like the PKK, is a State Department-listed terrorist group.
The Humanitarian Law Project argued that the material support law violated the First Amendment’s right to free speech. But a majority of the Supreme Court accepted the government’s argument – made by then-Solicitor General and current Justice Elena Kagan – that all nonviolent aid is properly illegal because it “frees up other resources within the organization that may be put to violent ends” and “legitimates” foreign terrorist groups. Writing for the majority, Chief Justice John Roberts clarified that the law only criminalizes speech “under the direction of, or in coordination with foreign groups,” leaving “independent advocacy” on the right side of the law.
Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor strongly disagreed, writing: “Not even the ‘serious and deadly problem’ of international terrorism can require automatic forfeiture of First Amendment rights.”
University of Chicago law professor Aziz Huq takes issue with the court’s distinction between “independent” and “coordinated” speech – a critical distinction if any of the 14 activists are charged with “material support” of FARC and PFLP. “There is some kind of speech that is not possible to do independently,” Huq says. “There are speech interests that are squelched here.”
Deutsch agrees: “It creates a chilling effect on people who are challenging U.S. foreign policy. If you speak out for the rights of Palestinians or question the government of Colombia, or are supportive of the Kurds’ right to their homeland, you’ve invariably going to come into contact with these groups. You’re going to be advocating some of the things that they’re promoting.”
That’s a point familiar to former anti-apartheid activists, who organized to end white supremacy in South Africa. The anti-apartheid movement took direction from the African National Congress (ANC), which was called a terrorist organization by President Reagan in 1986. If the material support statute had been in place in the 1970s, the thousands of people who led anti-apartheid protests across the United States could have been considered criminals. (The ANC and its leader, Nelson Mandela, were not removed from the U.S. list of foreign terrorist organizations until 2008, 15 years after Mandela won the Nobel Peace Prize.)
“This is almost the 1950s coming back. It’s overreaching,” says Jim Fennerty, another attorney assisting the subpoenaed activists. Similarly, he adds, former U.S. President Jimmy Carter could be charged with “material support” for monitoring Lebanon’s 2009 elections, which involved coordinated activity with Hezbollah, an official terrorist organization that was on the ballot.
In February, when the Supreme Court heard Holder v. Humanitarian Law Project, David Cole, the Center for Constitutional Rights attorney sparred with Justice Antonin Scalia:
Cole: The New York Times, the Washington Post, and the L.A.Times…published op-eds by Hamas spokespersons…thereby providing a benefit to Hamas. [Under this statute,] they’re all criminals…President Carter–
Scalia: [Interrupting]: Well, we – we can cross that bridge when we come to it.
While many in the legal world condemn the material support law, the subpoenaed activists are focusing their anger on those responsible for the grand jury and the home raids – the Justice Department and the FBI. The activists say the fervor of the current harassment is reminiscent of the agency’s COINTELPRO program of the 1950s and 1960s that targeted Martin Luther King Jr., Malcolm X and Black Panther leaders, among many others. (The long-running operation, which officially ended in 1971, also targeted the entire “New Left” movement, including Students for a Democratic Society, a chapter of which Weiner advises at her college.)
“This is just another in a long line of cases of FBI and government oppression against people who think like we do and try to do social justice work to make changes in this country and other places,” says Palestinian solidarity activist Hatem Abudayyeh, whose five-year-old daughter was home when the FBI raided his Chicago house. (Many of the subpoenas demanded activists produce any records of money given to Abudayyeh, as well as PFLP and FARC.)
Two trends over the past few years are particularly disturbing, according to Shahid Buttar, executive director of the Bill of Rights Defense Committee, which advocates local legislation protecting civil liberties. First, the government is criminalizing speech that was formerly constitutionally protected, and second, the FBI is regaining access to intrusive investigative tactics. Buttar co-wrote a November 19 letter to the Obama administration and Congress signed by 45 advocacy organizations, that noted “an ongoing trend of intrusive government surveillance of progressive activists in the United States.”
The same week the FBI raided activists’ homes, the Justice Department’s Inspector General released a report saying the agency had improperly spied on American activists involved in First Amendment-protected activities in the years following 9/11. The report, which reviewed FBI investigations between 2002 and 2006 of advocacy groups including Greenpeace and the Religious Society of Friends (i.e. the Quakers), said the FBI had inappropriately labeled nonviolent civil disobedience as terrorism, thereby improperly placing activists on federal terrorist watch lists.
Weiner says what angers her most about the FBI raid on her home is that the agents’ motivations were cloaked in secrecy; they didn’t have to provide any evidence of criminal activity. “The trauma is due to the [FBI’s] audacity – they took the broadest approach – they didn’t know what they were looking for.”
Buttar says that FBI surveillance of activists without any implicating evidence has “accelerated” under the Obama administration. In December 2008, former Attorney General Michael Mucasey issued more permissive guidelines governing FBI investigations. Current Attorney General Eric Holder could amend those guidelines but has not. “We had thought that these abuses had ended after the [post-Watergate] Church Committee,” Buttar says. “But the FBI’s abuses of the constitutional rights of activists have only expanded under Obama.”
Barbara Ransby, who along with Barack Obama was an anti-apartheid activist while a student at Columbia University in the early 1980s, says that given the long history of abusive FBI surveillance of political activists, the recent raids aren’t surprising. But the fact that it happened under the first black U.S. president matters. “In some ways that gives it more cover,” says Ransby, now a historian at the University of Illinois-Chicago, who spoke at a recent meeting of the Chicago chapter of the National Alliance Against Racist and Political Repression. “It makes people hesitant to see it as an attack. As a community of progressives, at moments like this, we really have to step up and embrace people who are under attack and defend them without question.”
‘Undemocratic and biased’ grand jury system
The activists directly affected have not hesitated to see the raids and subpoenas as attacks. Just weeks after the raids, those subpoenaed and their allies formed the Committee to Stop FBI Repression, which is demanding an end to “the repression of anti-war and international solidarity activists,” the return of all materials confiscated by the FBI (some have already been returned) and an end to the grand jury proceeding, which began in August 2009.
“I don’t think there’s anything fair about a grand jury,” says Tom Burke, a central organizer of the committee who was subpoenaed in Grand Rapids, Mich., after the FBI followed him to a coffee shop. “There’s no judge, you aren’t allowed to have your lawyer with you. … It’s a totally undemocratic and biased system, and it would be foolish to cooperate.”
The grand jury system was imported from England by American colonists, who often used it to defend their rights and express grievances against the king’s policies. But the unique subpoena power of the modern grand jury system, in use virtually nowhere else, has long since morphed into something different, according to attorney Deutsch. Since the Nixon era, he says, the Justice Department has used grand juries against political activists, “forcing them to testify [through compulsory immunity], even what I call ‘interning’ them without charges.”
If a subpoenaed person refuses to testify before the grand jury after being offered immunity by the government, she can be jailed for contempt – without ever having been convicted of a crime. The government considers this “coercion” a means of compelling testimony rather than punishment; famous victims include former Weather Underground member Bernadine Dohrn and former New York Times reporter Judith Miller. Jail is an immediate possibility for some of the 14 activists, three of whom were re-subpoenaed in November. (The Justice Department let all of their initial appearance dates pass after they refused to testify.)
But while Dohrn and Miller were released after less than 12 months, the uncooperative activists could face much more time because the current grand jury is investigating support for terrorism. (“Terrorism enhancement” sentencing guidelines, passed after the Oklahoma City bombing, allow judges to dramatically increase sentences if an offense “involved, or was intended to promote, a federal crime of terrorism.”)
“They’re not just looking at a few months in jail if they don’t testify, they’re looking at years,” says Deutsch, pointing to the case of Abdelhaleem Ashqar as the most egregious recent example of grand jury abuse. In 2007, a federal judge sentenced Ashqar, a Palestinian and former professor of business administration at Howard University, to more than 11 years in prison for refusing to testify before a grand jury – after he was acquitted of all terrorism-related charges.
He remains imprisoned.
Solidarity drives pushback
While they’d rather go to jail than be part of what they call a “government witch hunt,” the 14 subpoenaed activists are trying to avoid both outcomes by pressuring members of Congress and encouraging street protests around the country. In October, the Committee to Stop FBI Repression organized protests outside of the FBI’s Chicago and Minneapolis offices, and during the week of November 29, it spearheaded a series of protests in cities across the country.
The committee also sent a delegation to Washington D.C. in November that met four members of Congress, including Keith Ellison (D-Minn.) and Luis Gutierrez (D-Ill.), and Andrea Martin, the executive director of the Progressive Caucus. No politician had committed to sending a “Dear Colleague” letter to fellow representatives, but committee members are hoping that protests outside home district offices, a national petition letter to President Obama and Attorney General Eric Holder, and additional visits to the Capitol will cause influential people to condemn the grand jury investigation.
While the Justice Department’s next step is unclear – it could offer immunity to those subpoenaed, push for indictments or impanel a new grand jury after the current one expires in February – the reaction to its investigation is not. More than 140 organizations from around the country, including the Green Party, the Council on American-Islamic Relations and dozens of labor unions and councils, have condemned the government’s actions.
Jess Sundin, the antiwar activist who traveled to Colombia 10 years ago, sees those actions as an affront to her freedoms – and conscience. “The idea that it could be against the law for Americans to meet with people who our government doesn’t support – I never imagined that that was illegal,” Sundin said at a November 13 meeting of Seattle United Against FBI Repression. “I always believed that we had a right and responsibility to speak our opinions and to dissent when our government is making mistakes.”
UPDATE: On December 3 and 8, after In These Times’ January 2011 issue went to press, five additional Chicago-area Palestinian solidarity activists were subpoenaed by the Grand Jury, bringing the total number of individuals called to testify to 19.
Jeremy Gantz is an In These Times contributing editor working at Time magazine.