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STILL OUT ON A LIMB

Whom Do You Believe

On June 12th two groups, Support and Legal Advocacy for Muslims (SALAM) and the National Coalition to Protect Civil Freedoms (NCPCF), held a press conference at the New York City office of the Center for Constitutional Rights (CCR) to announce the publication of a new study entitled: INVENTING TERRORISTS: The Lawfare of Preemptive Prosecution. The study defines preemptive prosecution as “a law enforcement strategy… to target … individuals or organizations whose beliefs, ideology, or religion affiliation raise security concerns for the government.” The study, reviewed a list of 399 “terrorism” cases the Department of Justice prosecuted and concludes that an astounding 94% of them were, entirely based upon or had elements of, preemptive prosecution.

In the simplest terms preemptive prosecution is an adaptation of old-style entrapment procedures adjusted to fit post-9/11 laws and prejudices. The goal is to entice individuals who might not otherwise engage in illegal activity into taking acts that could be interpreted as violating post 9/11 conspiracy and material support to terrorism statutes. Such prosecutions, which have no impact on our national security, enable the Justice Department to crow about fighting terrorism while terrifying Muslim communities.

Upon review, the evidence employed to convict many of defendants seems flimsy. But in all the cases, despite weak evidence, juries unanimously voted to convict the defendants.
I do not have the space to recite the details of these cases, but a combination of weak evidence and a frightened citizenry common to so many of the reports, resonates with me because of my personal history.

Ethel and Julius Rosenberg were charged with Conspiracy to Commit Espionage. The prosecutor in his opening statement claimed they’d stolen “the greatest secrets known to mankind.” Yet the defense was able to show that the chief prosecution witness, who supposedly committed this theft, was a high school graduate who dropped out after the first semester of college because he failed every course he took. Was it reasonable for such a person to gather and transmit effectively some of the most complex and cutting edge scientific data of that era? Coupled with the fact that the evidence against my parents was verbal, rather than physical, this might have given the jury pause, but they did not deliberate long before unanimously voting for conviction.

Credibility was the key. This was the McCarthy period, the height of the great red scare. Who was the jury going to believe, the government of the United States and their witnesses who said “we did it at the Rosenberg’s direction, but now we regret aiding the communists,” or the defendants who denied stealing atomic secrets, but refused to answer when asked if they were members of the Communist Party.

The same dynamic is generating these preemptive prosecution convictions today. Who will the jury believe; the government of the United States who the jurors view as a bulwark against terrorist attacks, or the defendants whose religion links them to the terrorists who crashed the planes into the Twin Towers? How many of these convicting jurors worried that if they voted to acquit, they’d be responsible if one or more of the defendants later committed a terrorist act? Prejudice, not evidence, rules.

Hopefully, SALAM and NCPCF’s press conference will receive the coverage it deserves, but I doubt you’ll see or hear anything about it on the evening news. But you can read the entire study for yourself. Inventing Terrorists has been posted for public download at: http://www.projectsalam.org/Inventing-Terrorists-study.pdf
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