A new stage in the war on dissent

RECENTLY, ANTIWAR and socialist activists in Chicago, Minneapolis and North Carolina have had their homes and offices raided, and were given grand jury subpoenas. What is your take on these raids? What's your sense of what the government is after?

THE RAIDS have all the earmarks of a fishing expedition--both the search warrants as well as grand jury subpoenas. They all claimed to be investigating "material support to terrorism," in particular around both the Middle East and the country of Colombia. It appears to be a fishing expedition because the materials that were authorized to be seized and the subjects about which questions were to be asked were quite broad.

The search warrants were like wholesale seizure warrants. The FBI goes into five or six houses in Minneapolis, two houses in Chicago, some houses in North Carolina and Michigan as well, and seize everything. They take people's cell phones, they take all the computers out, they take every document out. This broad language in the search warrants purports to allow the FBI to take everything in those offices.

And then the subpoenas, which require people to testify in front of the grand jury, they also are very open ended. Asking for everything people know about certain organizations, phone numbers, associates, friends, etc. So you would think if it was a narrowly tailored prosecution in which they thought there might be real criminal conduct, the focus would be much narrower.

So while it appears from the warrants they might have some suspicion about something (but who even knows if that suspicion is valid), they certainly don't have very much, because they are going very, very broadly.

It's something like looking for a needle in a haystack, in which they destroy many lives and chill people's rights--and there may not even be a needle. And because of that, they are clearly encroaching on the First Amendment rights of people who are doing antiwar organizing and working to change U.S. foreign policy, particularly in the Middle East and in South America.

There are many problems, but one of the problems here is that the search warrants and subpoenas are so that broad, they cut directly into all kinds of First Amendment activities. So the people in Minneapolis, who were among the main organizers of some of the Republican National Convention demonstrations in 2008, then become the targets of the FBI or the Joint Terrorism Task Force--and their First Amendment activities, and their right to organize and oppose the government are therefore chilled or even prevented all together.

A broad, wholesale attack like this on the antiwar movement and on activists is bad for the people who were directly attacked, and it also tells all of us that the activities we undertake are subject to government surveillance and much more in this case--the actual seizure of the documents and grand jury subpoenas.

So it's quite serious. It makes you very suspicious because it's so broad. It was so coordinated, it was across the country, and they don't really have that much, if anything.

A second problem is the ostensible reason for the search. The various warrants and subpoenas cite the law concerning material support for terrorism. And of course, that's the material support statute.

A case arguing the unconstitutionality of that statute was recently argued by the Center for Constitutional Rights in the Supreme Court [Holder v. Humanitarian Law Project]. We lost. The Supreme Court, for the first time since 9/11, said advocacy or speech on behalf of an organization on the attorney general's terrorist list is covered by the criminal statute--the material support of terrorism statute--if that speech is coordinated with, or you work with or have contact with, people in the alleged terrorist organization.

So once an organization is put on the terrorist list, if I only write an op-ed, and if I gather the information from the designated organization or have any contact with anybody there, even if it's just asking for information, that might be interpreted as "coordination" with them, or some kind of material support for that organization. And there is no due process given before an organization is put on the list. It's almost impossible to challenge. Oftentimes, placement on the terrorist list is a political decision.

So first you have the Supreme Court decision in June 2010, and then you have these raids a couple of months afterward. It makes you very suspicious that the current government is pushing the boundaries of the material support statute and reading it very broadly.

Organizations are going to be put in fear of any kind of opposition to U.S. foreign policy if there is a claim by the government that there is contact with organizations that are designated terrorists. Domestic American organizations that oppose U.S. foreign policy may well be chilled in their work.

COULD YOU say a little bit more about the way that the material support provision has been used since 9/11? There have been a number of really high-profile cases--particularly of Islamic charities, for example--where no violence was ever alleged to have occurred as a result of the so-called "material support," so a lot of us on the left have seen this as a broader attempt to whip up support for the "war on terror."

ONE OF the main uses of the material support statute, I think is to demonize organizations that the U.S. government doesn't like. Had they had such a statue during the period of the African National Congress (ANC) opposition to the apartheid government in South Africa, they would have labeled that--and that's how they thought of it in the U.S., under Reagan and before--as a terrorist organization. Any contacts with the ANC of any Americans opposed to apartheid would have been considered criminal.

There are two aspects to this. One is that the government can label, without any kind of hearing or way to challenge it, a foreign organization as a terrorist organization. The other is that any American contact with that organization or support for that organization is prohibited.

This is true even if that support is, as I said, by writings that are at all coordinated; by giving blankets to their hospital; by, according to the case we lost in Supreme Court, wanting to teach the [Kurdistan Workers Party] or the Tamil Tigers about the Geneva Conventions. Wanting to teach people peaceful means of resolving disputes, or wanting to get them to the negotiating table--when Jimmy Carter negotiates questions in the Middle East and he has contacts with Hamas or Hezbollah--those all are now prohibited.

So this statute is the favorite of prosecutors to go after people, because the smallest kind of contact with a designated terrorist organization can be considered material support. It's an easy way to intimidate, wipe out and jail opponents of U.S. foreign policy, and an easy way to demonize organizations that many would call liberation organizations in other countries.

The provision has been used often. It is a favorite among prosecutors because you have to prove so little. So the Holy Land Foundation, which was the biggest Muslim charity in the United States, was accused of giving money to Hamas, but so indirectly that it's hard to believe any of the facts in the case--it was giving it to groups that I think even the UN was giving to in Gaza. But somehow, they were supposed to believe or know that those groups were connected to Hamas, which has been put on the U.S. terrorist list.

The statute is used very broadly to say, "Muslims in this country and all their charities, what they're doing is supporting terrorism." When in fact, the vast majority of those charities--I obviously don't know every one, but from what I know--gave aid to organizations they didn't think were terrorist for starters, or on the list, and, secondly, they were giving humanitarian aid or doing things like teaching the Geneva Conventions.

I WANTED to go back to this recent Supreme Court case, Holder v. Humanitarian Law Project, that was argued for the Obama administration by former Solicitor General Elena Kagan--who is now, of course, sitting on the Supreme Court. What do you think that case signals about the court's view of free speech issues and its efforts to broaden this statute?

THEY WERE pushing to broaden out this statute, of course. I was at the argument, and the solicitor general did make very broad arguments--broader than the case required for saying that certain kinds of what she called "material aid" should be criminally punished under the statute, or could be.

So, for example, let's say an organization was designated as a terrorist organization, and it comes to you and says, "We were improperly designated, we want to try to challenge it." I couldn't do that, as a lawyer representing them. Elena Kagan said in the Supreme Court that such representation would be "materially aiding" a terrorist organizations.

So she took a very broad position in the court. The solicitor general does have some ability to say, "I'm not taking a position that's broader than the case," but she didn't do that. The Supreme Court didn't decide every question on this, but you'd be taking a real chance if you went and represented a designated terrorist organization that was on the list. So it doesn't bode particularly well that Elena Kagan argued in that case that she was willing to go for a very broad reading of the statute.

The other issue had to do with the plaintiff we represented, the Humanitarian Law Project, which wanted to teach the Geneva Conventions or explain to a designated terrorist group how to use the UN as a peaceful means of achieving their goals. Kagan argued that that such teaching was "conduct," and not "speech"--and therefore wasn't protected by the First Amendment.

We argued that it was speech, and the court did agree that it was speech. So even on that issue, the government was willing to say that teaching the Geneva Conventions was speech.

But then they said this was one of the rare cases where we're going to outlaw speech, which is what they did.

I THINK a lot of people felt some real hope that with Barack Obama's election, civil liberties would be safer, given his promise to close Guantánamo, and to try detainees in civilian courts. But he's really fallen far short of almost all of these promises, hasn't he?

I WOULD say it's a disaster. It's a continuation of the Bush policies, and in some cases, the deepening of those policies. So Guantánamo is still open. We still have arbitrary detention, or detention without trial, and we have a number of people at Guantánamo who will never go to trial.

In a recent case that came up in federal court, the court barred testimony that might have been the result of torture. The Obama administration tried to use it. But the government still uses military commissions to try people, and those commissions can still use evidence derived from torture.

The Obama administration still uses the "state secrets" defense to get cases dismissed. They just did it again in a case of ours, in which we're suing Obama to stop the assassination by drone or otherwise of Imam (Anwar) al-Awlaki in Yemen. The government asserted the "state secrets" defense to that case. We don't know what the court will decide.

But they have been pretty deferential to the Obama administration on the question of state secrets. We have not won a case. So on every issue--Guantánamo, preventive detention, state secrets, use of torture evidence, military commissions--there's been an identical practice to that of the Bush administration. Some people would argue they're surrounded with a few more procedural protections, or laws, but it's the same policy.

And when it's coming from a Democrat, it should be a particular lesson to people--that on these national security issues, there's very, very little difference between the two administrations, Democratic or Republican. It's also particularly bad, because if one had hopes that the Democrats were going to shift on these issues, it just demonstrates how deeply imbedded the erosion of civil liberties has become in the U.S. and the willingness to sacrifice civil liberties in the name of "national security" or "stopping terrorism."

You would have trouble distinguishing the policies of Bush from Obama. Even on the issue of rendition, when you take a person from one country to another illegally, Obama has continued this. He claimed that he wouldn't render people to countries where they would be tortured, but we haven't seen that yet--the first person who was picked up to be rendered had the heck beaten out of them on the plane over here.

So even on rendition, they're similar. One difference, you could say, is that there isn't the open and notorious torture of people that there was under Bush--at least not that we know of.

I say that cautiously, because there are still some secret prisons out there--a section of Bagram that no one's allowed into--so we don't know everything that's going on around the issue of torture. And there's certainly been no accountability for the torture regime of the Bush administration. Many of those same people are still in the current administration.

I WAS reading a recent Rolling Stone interview with Obama, and he said that people need to vote for the Democrats in November if we want the kind of country that respects civil rights and civil liberties. It just seemed totally disconnected from the reality of what's happened in the last two years under his administration.

IN EVERY case we've gone to court on regarding accountability, the Obama administration has stopped us.

We represent two people who allegedly committed suicide in Guantánamo. We have evidence now that they were murdered, and the Obama administration opposed our suit, and we lost. In another case, we went to court claiming that our Guantánamo lawyers at the Center were wiretapped without warrants. We just lost that case in the Supreme Court. They denied review. Again, the Obama administration opposed us.

The ACLU went to court to try and get at the rendition issue against a subsidiary of Boeing, which was involved in some of the flights. Again, the Obama administration opposed it.

I can name 20 cases where they've come into court, and they've made sure that there will not be exposure, much less liability, of the torture regime, and violations of fundamental Constitutional rights that occurred under Bush. And many of these violations are still occurring today. You don't have an outcry about Guantánamo now, yet we have 40 some people there facing indefinite permanent detention without trial.

GIVEN WHAT you're saying about these recent raids being about demonizing organizations the government doesn't like, what kind of advice would you give to activists in this kind of climate?

I CERTAINLY think it's not a time to cut back on actions, that's for sure. If there is a need for action, it is now--whether it's on the wars or civil liberties or immigration or otherwise. Otherwise, you'll be basically conceding this territory to the government. So I don't think one should pull back on major activity.

I do think one has to assume, in whatever you do, that most of what you do is wiretapped or surveilled, and there's no doubt that the FBI guidelines are very broad on that. You have to assume that there's an informant of some sort in a group, and that therefore what you say is going to be heard--whether by the government through surveillance or by someone in the group. And because of the breadth of the statute, you have to be extremely careful about your dealing with organizations on the [foreign terrorist] list.

When I say that, I mean your activities independent of those "terrorist" organizations are okay. So you shouldn't pull back from that. So, for example, I can write an op-ed article tomorrow supporting the FARC in Colombia, but what I can't do is have contact with the FARC in terms of saying that I need some help or something like that. Now, where it gets into real journalism is a harder issue.

I think organizations have to be extremely careful dealing with groups on the various terrorist lists that our government keeps. But you can do independent activities. Tomorrow, I can write an article saying "Hezbollah should be the legitimate rulers of Lebanon." But I can't contact Hezbollah and say, "Well I'm going to write this article, what do you think about this?" As soon as I do that, I cross a line.

I think organizations have to be extremely careful about contacts, if any, with designated terrorist organizations, and I wouldn't recommend it. Not the way this government is acting right now and not with these decisions.

IN TERMS of the response to the FBI raids, I know there were several demonstrations in cities in the days following the raids, and when the first grand jury appearance was scheduled, even though all the activists refused to testify, people came out for that as well. Do you think that kind of public pressure is important?

I THINK those have been very helpful. I was really excited to see that there were 27 cities that had demonstrations around the raids and the grand jury appearances. And the fact that everybody decided to take the Fifth Amendment and not testify I think surprised the government. The government didn't come back immediately and give certain people immunity, or maybe it realized they overreached a bit, and that it was a fishing expedition.

I think the demonstrations made a difference in that. That's not saying that something more won't happen, because you know they don't do these things and then just walk away. But I think demonstrations did help, and protests really limit the scope that the government can act on in these kinds of raids. I think they are absolutely a crucial part of opposition.

I think that if there weren't those protests, for all I know the government would have enforced those subpoenas right away and dragged those people right in to the grand jury. But now, maybe they're rethinking it. They may still do it selectively--I don't have any idea--but I certainly believe that making this into the civil liberties fight that it really is, is crucial.

Transcription by Karen Domínguez Burke.