William Fisher: More Terrorists?
By William Fisher
I read in the papers that the FBI has charged two more U.S. citizens with conspiring to provide material support to al-Qaida. The two, it is alleged, were enthusiastic followers of al-Qaida and Osama bin Laden.
Dr. Rafiq Abdus Sabir, 50, of Boca Raton, Fla., and Tarik Shah, 42, of New York, a martial arts expert and jazz musician, are currently being held without bail. They got busted as the result of an FBI sting, and the Feds say they have it all on tape.
Now, I haven't a clue whether these two are bad guys, but since they haven' t had a trial yet, the Constitution says they're presumed innocent.
Beyond that, though, you'll pardon me if I approach this with just a tad of skepticism.
The reason is that the track records of the FBI, the immigration guys at the Department of Homeland Security, the 'few bad apples' who brought us Gitmo, Abu Ghraib and Bagram, and the sometimes over-zealous lawyers in the Justice Department, aren't all that reassuring.
Consider two of the government's most recent 'terrorism' cases.
There's the case of the two 16-year-old Muslim girls arrested in New York and detained in Pennsylvania for six weeks as would-be suicide bombers.
The government quietly released one of the girls pending deportation to Guinea and allowed the other one to return to Bangladesh with her family.
They did not know one another. They were taken into custody separately March 24 and held at a detention center. The Bangladeshi girl, her mother, and two brothers have left the country voluntarily, according to the U.S.
Immigration and Customs Enforcement (ICE) Service, part of the Department of Homeland Security (DHS). Her name is being withheld because she is a minor not charged with any crime.
ICE said the Guinean girl, Adama Bah, still faces removal proceedings.
The agency has insisted the girls were never accused of crimes, only administrative immigration violations.
Yet, media reports at the time of their arrest cited a government document that said the FBI believed the girls posed ''an imminent threat to the security of the United States based upon evidence that they plan to be suicide bombers.'' Federal officials have refused to provide any additional details.
The matter has been shrouded in secrecy, marked by closed hearings and sealed declarations. Lawyers have been barred from disclosing information held by the government.
In another strange case, this one involving domestic defendants, prosecutors have not yet let go.
A year ago, Hope Kurtz died of a heart attack in the northern New York State city of Buffalo. Her husband, Steve, an art professor at the University of Buffalo, called police and the emergency medical services.
What the police saw when they got to the Kurtz home, aside from Hope Kurtz's body and a distraught husband, were vials, bacterial cultures, and an assortment of laboratory equipment including a mobile DNA extracting machine used for testing food products for genetic contamination.
Kurtz explained to the police that these were some of the materials for an art exhibit he and his wife had been preparing on genetic modification.
The Kurtzes were founders of a group called ''The Critical Art Ensemble'', a collective of ''tactical media'' protest and performance artists.
The police did not buy his story. They called the FBI. A hazardous materials team carried out testing. County health officials declared the Kurtz home a potential health risk and sealed it for two days while a state lab examined the bacterial cultures found inside.
They confiscated Hope's body and Steve's computer, notebooks, and art supplies. They cordoned off part of the street, quarantined the Kurtz home, and took Steve to a hotel, where the FBI questioned him for two days.
Meanwhile, the special agent in charge of the Buffalo FBI office gave interviews to the press.
Officials eventually made it known that there was no danger to public health, and Kurtz was allowed to move back to his home.
But federal authorities obviously thought something in the Kurtz home was illegal, because prosecutors subsequently convened a grand jury, with Kurtz as its target. Instead of bioterrorism, he was indicted for mail and wire fraud, charges normally used against those defrauding others of money or property, as in telemarketing schemes.
Also indicted was Robert Ferrell, head of the Department of Genetics at the University of Pittsburgh's School of Public Health, for allegedly helping Kurtz obtain $256 worth of bacteria for one of his art projects.
In Buffalo, a judge heard motions to dismiss the federal criminal case against Kurtz, whose attorney argued that a dangerous precedent would be set by ''exalting'' into a federal crime a case of wire and mail fraud, which is customarily a minor, civil contract issue -- the purchase of the bacterium Serratia marcescens by scientist Ferrell for use in Kurtz's artwork.
The prosecutor acknowledged that there is no federal law or regulation concerning Serratia, whose alleged danger forms the basis of the government's argument for making this a criminal case.
Kurtz's lawyer further argued that the FBI intentionally misled a judge into issuing the original search warrant. The judge was told of Kurtz's possession of a photograph of an exploded car with Arabic writing beside it, but not of the photograph's context: An invitation to a museum art show. The original warrant called for the seizure of anything with Arabic writing.
Even if the judge grants the motion and throws out the case, Kurtz's lawyer says it is certain that the prosecution will appeal the decision.
No trial date has yet been set. But while the case is pending, FBI agents have been talking with people connected with Kurtz -- museum curators in Massachusetts and the state of Washington, colleagues in New York and California, and current students at Buffalo.
David Cole, a professor at Georgetown University Law Center and an internationally recognized legal authority on civil liberties, says, "Not one person of the more than 5,000 locked up as a foreign national in preventive detention by (former Attorney General) John Ashcroft was ever convicted of a terrorist crime. The only convictions have been of U.S. citizens. Ashcroft labeled them as suspected terrorists, but it turned out they had nothing to do with terrorism whatsoever."
Cole recalls that on September 2, 2004, "a federal judge in Detroit threw out the only jury conviction the Justice Department has obtained on a terrorism charge since 9/11." In October 2001, he adds, "shortly after the men were initially arrested, Ashcroft heralded the case in a national press conference as evidence of the success of his anti-terror campaign. The indictment alleged that the defendants were associated with Al Qaeda and planning terrorist attacks".
But Ashcroft, he recalls, "held no news conference in September when the case was dismissed, nor did he offer any apologies to the defendants who had spent nearly three years in jail." The Detroit case was dismissed at the request of the DOJ because the prosecution failed to disclose to the defense evidence that other government experts did not consider the sketches and videotape to be terrorist casing materials at all and that the government's key witness had admitted to lying.
"When the Attorney General was locking these men up in the immediate wake of the (9/11) attacks", Cole says, "he held almost daily press conferences to announce how many 'suspected terrorists' had been detained. No press conference has been forthcoming to announce that exactly none of them have turned out to be actual terrorists."
The DOJ has brought several other high-profile prosecutions. Among them is the case of "The Lackawanna Six". Arrested in the Yemeni community of this old steel town in upstate New York, the six young men were charged under the federal anti-terrorism statute with providing material support to al-Quaida, which, prior to September 11, 2001, had been designated by the Secretary of State as a "foreign terrorist organization."
Specifically, the men were charged with providing "material support" in the form of training. The training consisted of paying for a uniform, attending the training camp where they learned to use weapons, and standing guard duty.
The charges against them also specified viewing videotapes of the bombing of the USS Cole and speeches by Osama Bin-Laden.
None of the defendants engaged in acts that were, at the time, obviously criminal in nature. It was not until several months after their return from Afghanistan that planes crashed into the World Trade Center. The six young men agree to plead guilty to providing "material support" to al Qaeda.
Prosecutors said the defendants belonged to a terrorist "sleeper cell." The defendants claim they pled guilty because the FBI threatened to send them to Guantanamo Bay.
So, as to two the most recent arrests, watch this space for further news of Dr. Sabir and Mr. Shah.
William Fisher writes for InterPress News Service. He has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area during the Kennedy Administration.