Our New Double-Standard for Justice

By William Fisher

I received an urgent email last week from Khalil Meek, the Executive Director of the Muslim Legal Fund of America (MLFA).

What Khalil was busting out to tell me (and hopefully several thousand others) was Glenn Greenwald’s conclusion that a New York Court of Appeals case containing “a fascinating new ruling (that) unwittingly illustrates the separate system of 'justice' invented for Muslims in the US after 9/11."

Intriguing, right? Read on!

The case involved a “gang-related murder trial in which prosecutors charged the defendant with terrorism. The alleged gang member was convicted, but the New York Court of Appeals completely threw out the terrorism and non-terrorism convictions because, they said:

· Terrorism charges do not apply because the defendant and his acts do not meet the ‘collective understanding’ of what terrorism is (in other words "violence committed by Arabs or Muslims against the west"), and

· Trials that involve terrorism charges allow for otherwise inadmissible evidence that prejudices juries in favor of the prosecution (in other words, terrorism trials are rigged to be unfair, to deny Muslims their legal rights, and to ease the way for convictions).”

Got that? Once more, with feeling:

“We now have it on the books: terrorism charges are reserved primarily for Muslims, and the rules of trials involving terrorism charges are different than non-terrorism trials -- the main difference being that terrorism trials are designed to be unfair so that prosecutors can easily get convictions.”

Is this true? Most non-lawyers – and many lawyers – remain unaware that this metamorphosis is taking place “in plain sight.” Here’s proof:

Listen to the editorial page editor of The New York Times, Andrew Rosenthal, writing about Liberty and Justice.

He says, "It's rarely acknowledged that the 9/11 attacks have also led to what's essentially a separate justice system for Muslims. In this system, the principle of due process is twisted and selectively applied, if it is applied at all."

In order to understand the significance of this case, it’s necessary to get down in the weeds a bit. Here’s how the New York Times presented it:

“Last month, New York State’s highest court ruled that the Bronx district attorney’s office erred in "trying to use a state terrorism charge to prosecute street gangs."
The Bronx district attorney, had “argued that Mr. Morales’s gang, the St. James Boys, met the somewhat vague definition of ‘terror’ in the state statute because it sought to intimidate or coerce the entire Mexican-American population" around St. James Park.

“In a unanimous decision, the six judges on the top court ruled that adopting the prosecution’s broad definition would allow other prosecutors to ‘invoke the specter of terrorism’ every time a Blood assaults a Crip or an organized crime family orchestrates the murder of a rival syndicate’s soldier.

But the judges ruled that the concept of terrorism “has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act.”

So what definition of ‘terrorism’is this court using? Well, it never does say. It simply says, ‘we have looked at the crime and it is not terrorism.”

Which tracks the never-to-be-forgotten words of Supreme Court Justice Potter Stewart in 1978. When asked in an obscenity case, ‘What is porn?’ Justice Potter simply said, ‘I know it when I see it.”

Gabor Rona, the International Legal Director of advocacy group

Human Rights First, provides another nail in the coffin of due process.

He says, “One pernicious aspect of prosecutions these days is that terrorism charges are increasingly being used for things that are not terrorism, in order to inflame juries. What makes this easy is the flexible definition of terrorism used in the criminal justice system.

“It takes a garden variety crime, say assault or murder, and turns it into something even more frightening by reference to the motive of the accused, rather than the act, itself. Even more attenuated from a balanced view of reality and justice is the leverage prosecutors have to charge conspiracy to commit terrorism, which, like all conspiracy charges, does not require any underlying crime to have been committed at all.

“This phenomenon is not limited to Muslim and Arab targets. Indeed, the ever-expansive use of terrorism in the prosecutor's toolbox, be it in the form of terrorism itself, conspiracy to commit terrorism, or "material support" to terrorism, puts virtually any political activism in the crosshairs of law enforcement.

“Fear of Muslims and Arabs may have given rise to this phenomenon, but authorities have successfully capitalized on it to take down tree huggers and to justify intrusive investigations of Occupy Movement activists.

“But another, equally disturbing manifestation of the creeping security state does involve mostly Muslims and Arabs. It's the disintegration of constitutional protections against entrapment.

“In theory, the law has not changed and the successful entrapment defense has always been rare. The government can supply virtually everything -- encouragement, incentives, materials, training, facilities -- to facilitate the crime, and still get a conviction. But it does have to prove that the accused was ‘pre-disposed’ to commit the crime. Even more than ‘motive’, predisposition is an amorphous concept, easily manipulated to prey on the fears and prejudices of juries who most certainly are not the ‘peers’ of the accused.

His conclusion is that ”prejudice does play an important role in the disintegration of due process, but once prosecutors hit upon a shiny new tool, they will naturally seek to expand its use wherever and whenever they can. To dial back this trend is virtually impossible at any time, let alone one where few judges or legislators can expect to survive the accusation: ‘soft on terrorism’."

Kathy Manley is an Albany (NY) Criminal defense attorney and the VP of the Capital Region Chapter of the NYCLU.

“By saying, as the NY court did, that ‘we know terrorism when we see it’, and then giving as examples cases involving Muslims, the decision shows this very clearly,” she says. “I think the court reached the right result here, but unintentionally made the double standard in the Muslim cases extremely clear,” she added.

“The case of my client, Yassin Aref, is a similar story but like so many other Muslim cases, it involved a sting operation,” she said. “A Kurdish Iraqi imam, Yassin came to Albany, NY as a UN refugee, and was soon targeted by the FBI for some reason. (As he discovered through a recent FOIA request, it appears they had him mixed up with an Al Qaeda operative who was later killed in 2010, after which Yassin was moved to a low security prison for the first time.)

“They sent a criminal con artist – Shahed Hussain, also used in the Newburgh 4 case - to befriend a co-founder of the mosque where Yassin was imam. This man, Mohammed Hossain, ran a struggling pizza business and needed money, so he was happy to be offered a loan by the provocateur, who said he was a rich importer who wanted to help his Muslim brothers. At one point he showed Mohammed a missile tube and said this was one of the things he imported. Mohammed was shocked and refused to help transport the missile, but he didn’t think it was connected to his loan, and he still wanted the money.

“Yassin was only brought in to witness the loan transaction as set forth in the Quran, something he often did for mosque members, who couldn’t use banks because their religious beliefs forbade them from paying or charging interest.

“Yassin never saw the missile, and had no idea the loan he was witnessing was connected to terrorism. The government recorded 50 hours of conversations between the three men, and Yassin never said anything showing he understood this. Yet, because he was charged with material support for terrorism, the government was able to bring into his 2006 trial Yassin’s 1999 diary and some speeches he made in Iraq in 1994, both of which showed Yassin’s Islamist beliefs and contained criticisms of the West as immoral.

’While nothing there connected Yassin to terrorism, the evidence was damning in the post-911 environment of Islamophobia. Worse, there was a mountain of secret evidence (likely the erroneous FBI reports alleging Yassin was a member of Al Qaeda) which was all given to the judge, but which even the security cleared defense attorneys were not permitted to see. This resulted in the judge telling the jury that the government had “good and valid reasons” for targeting Yassin. While acquitting him of most of the charges, I believe the jury was afraid to let him go completely, and convicted him of a few charges.
“As for what can be done, there needs to be much more awareness of all this, and how it is destroying innocent families and terrorizing the Muslim community. The government strategy is spreading beyond Muslims too, as we have seen sting operations used against Occupy and peace activists, who have also been targeted in material support for terrorism investigations.
“Such abuses always begin by targeting the most vulnerable and, if not stopped there, they are applied to others and eventually to everyone. Professor Francis A. Boyle, the firebrand law professor from the University of Illinois, summed up the situation this way:

In post 9/11 America, if you are an Arab or a Muslim facing a terrorism charge, the American legal system functionally presumes you to be guilty as charged instead of innocent as constitutionally required.