Privacy SOS

International solidarity and the First Amendment in the crosshairs

Do you remember the FBI raids on anti-war and international solidarity activists that took place in September and December 2010, and resulted in 23 people being issued with subpoenas to testify before a Chicago grand jury?

Among those targeted were people involved in organizing protests at the 2008 Republican National Convention, trade union organizers, and peace and justice activists, including nine people who were known for their public support of Palestinian rights.

After the FBI invaded homes, seized computers, cell phones, documents, photos and even children’s art work, the activists refused to appear before the secretive grand jury convened by US Attorney Patrick Fitzgerald.  More than a year went by, raising hopes that no further action would be taken them.

Those hopes were dashed a week ago, when Bruce Nestor, an attorney representing some of those who had been targeted, had a telephone conversation with Barry Jonas, an assistant US attorney working with Patrick Fitzgerald.   Jonas reportedly told Nestor that the investigation was ongoing and defense attorneys could not see any of the documents relating to the case until the investigation was complete.

The news of Assistant US Attorney Jonas’ involvement suggests that criminalizing support for Palestine could be at the top of the grand jury’s agenda.  As trial attorney for the Department of Justice’s Counter-Terrorism Section, he was lead prosecutor in dogged pursuit of the Texas-based Holy Land Foundation for Relief and Development, which was accused by the government of funneling money to the Palestinian group Hamas through charitable “zakat committees” (to which, incidentally, USAID also sent funds).  

In the first trial of the high profile “terrorism-financing” case, a Dallas jury deliberated for 19 days and then acquitted three defendants on almost all of the 197 charges.  It failed to agree on a single conviction.  In spite of years of investigation, two months of testimony, and more than 1,000 documents, wiretaps and transcripts, one jury member said “there was really nothing there for me, no concrete evidence” and claimed that the government should not re-try the case. 

But Jonas and his colleagues decided to have another go. On November 25, 2008, with a different jury, they won sweeping convictions against five officials of the charity, who were subsequently sentenced to up to 65 years in jail.

Setting aside the Sixth Amendment’s requirement that those accused in criminal trials have the right to confront the witnesses against them, the prosecution relied on an anonymous witness who claimed to be a member of the Israeli secret service but whose identity could not be confirmed.   Some 300 individuals and organizations were named as “unindicted co-conspirators” without being told what the evidence was against them or being allowed to defend themselves.  

In December 2011, a three-judge panel of the Fifth Circuit Court of Appeals upheld the convictions.  Defense attorneys intend to ask the entire Fifth Circuit to re-hear the appeal.

The Holy Land Foundation case is featured on Islamophobic websites as “proof” that the Muslim Brotherhood (the parent of Hamas) has burrowed deep within the United States with the goal of taking it over.  This is the theme of the propaganda film funded by Newt Gingrich’s lead supporter, Sheldon Adelson.   “The Third Jihad” includes an interview with the New York Police Commissioner and has been shown on a continuous loop to more than 1,400 officers in the New York Police Department. 

Since the Holy Land Foundation case was decided, prosecutors have obtained a new weapon to use against international solidarity activists like those at the receiving end of grand jury subpoenas.  The Supreme Court ruling in June 2010 in the case of Holder v. the Humanitarian Law Project was the culmination of 12 years of litigation over theinterpretation of the“material support to terrorism” provision of the 1996 Anti Terrorism and Effective Death Penalty Act, which was expanded by the USA PATRIOT Act to include the categories of giving “expert advice or assistance,” training, service and personnel.  

The case revolved around groups that were helping the PKK (Kurdistan Workers Party) develop non violent ways of getting its message across and an organization that maintained that the Liberation Tigers of Tamil Ealam (LTTE) should be the recipient of aid for northern Sri Lanka in the aftermath of the deadly tsunami. 

In a 6-3 decision written by Chief Justice John Roberts, the Court in June 2010 carved out a frightening new exception to the First Amendment.  Basically it says that if a person or organization has carried out some kind of activity that was somehow “coordinated” with a group that has been listed by the Secretary of State as a terrorist organization, then that person or organization can be prosecuted for giving “material support” to terrorists. That activity can be wholly peaceful, have peacemaking or humanitarian relief as its goal, and involve nothing more than words.

Among the 48 groups on the State Department’s terrorism list are Hezbollah, Hamas, the Popular Front for the Liberation of Palestine, the PFLP – General Command, the Palestinian Islamic Jihad and the Revolutionary Armed Forces of Colombia, known as the FARC and the United Self-Defense Forces of Columbia.

If the African National Congress were still on the State Department’s list – it was taken off by an Act of Congress as a 90th birthday present to Nelson Mandela in 2008 – then, theoretically at any rate, anyone from this country who worked with Mandela, or enabled Mandela’s voice to be heard could have faced criminal charges. 

The Court in Holder declared that the ruling does not extend to what it called independent advocacy: “Under the material support statute, plaintiffs may say anything they wish on any topic – they may speak and write freely – Congress is not seeking to suppress ideas or opinions.”  But if they organize some kind of wholly nonviolent and lawful activity in consultation with one of the listed groups, they can face up to 15 years in jail and be fined as much as $50,000.   

The Supreme Court declaration that it was not criminalizing the independent advocacy of unpopular views was overlooked in Boston where, in December 2011, a federal jury found Tarek Mehanna guilty of conspiracy to provide material support to terrorists without any kind of demonstrated link being made to a terrorist organization.   Mehanna’s attorneys and brother will be talking about the First Amendment implications of the case in forthcoming events here and here.

As the hunt for the ‘enemy within’ intensifies at home, former FBI agent and whistleblower Coleen Rowley has warned that “we’re conflating proper dissent with terrorism….Agents are now given a green light, for instance, to check off ‘statistical achievements’ by sending well-paid manipulative informants into mosques and peace groups.  Forgotten are worries about targeting and entrapping people not predisposed to violence.”

And as Rep. Dennis Kucinich pointed out in a letter to Attorney General Holder, the Holder decision highlights a troubling double standard in the choice of who to target and prosecute.  “Former Attorney General Michael Mukasey, former Homeland Security Director Tom Ridge, former White House security adviser Frances Townsend, and former New York Mayor Giuliani have publicly expressed their support for the Mujaheddin-e-Khalq (MEK), an organization that has been on the foreign terrorist list of the State Department since 1997.” 

Kucinich cites reports that the MEK has spent millions of dollars on lobbyists, PR agents and communications firms to get off the terrorism list and yet no one has been prosecuted for giving it material support. 

“How do you reconcile that inaction with the apparent overkill that has been directed at the anti-war activists in Minneapolis and Chicago?”

© 2021 ACLU of Massachusetts.