The accidental terrorist.

The accidental terrorist.

The accidental terrorist.

The law, lawyers, and the court.
Oct. 19 2004 4:32 PM

The Accidental Terrorist

The burgeoning new legal category of "enemy combatant lite."

Last Monday, the U.S. Defense Department spit out Yaser Esam Hamdi like a piece of bad meatloaf—deporting him to Saudi Arabia with the agreement that he renounce his U.S. citizenship and never visit or harass the United States again. Now back in Saudi Arabia, Hamdi says he was innocent all along. Following a serious smackdown from the U.S. Supreme Court in June 2004—which ruled that he could not be held without some measure of due process—neither the Defense Department nor the Justice Department could digest the hard, chewy lump that was Hamdi any longer. After nearly three years of detention and interrogation in the Tower of Charleston, err ... the Charleston, S.C., naval brig, Hamdi was sent packing.

One of the chief arguments advanced by Hamdi's supporters was that if the administration could do this to American citizen Hamdi, it could do the same to you. Yet, despite the Draconian implications of Hamdi's case, most Americans have little reason to fear this kind of treatment. After all, Hamdi was captured on an Afghan battlefield by U.S. forces and their allies engaged in active combat. Despite the best efforts of the U.S. Agency for International Development and others, Afghanistan has not yet developed a booming tourist business (although the jihad business remains quite brisk), so few Americans actually risk a fate like Hamdi's. However, lots of Americans face another fate, perhaps best dubbed "enemy combatant lite"—a status that involves more punishment and less process than the regular criminal justice system—via other Justice Department initiatives that affect the activities of millions of Americans. This dragnet has affected significant numbers of recent immigrants and foreign visitors to this country, all of whom face a substantially tougher immigration-enforcement regime since Sept. 11, regardless of whether they are connected to terrorism or from a country that sponsors terrorism. It may also affect the millions of Americans who give money to charity or support any number of political causes, because of the aggressive way the government has enforced the law outlawing material support to foreign terrorist organizations.

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Despite the popular myth about how the United States has welcomed the world's huddled masses to its shores, U.S. immigration law has long given foreigners a cold shoulder. Our immigration policies have long reflected American ambivalence about its role in the world, its responsibilities to refugees, and its recognition of hardship in other countries. Perhaps the most notable instance of this was during the Holocaust of World War II, when the United States refused entry to thousands of mostly Jewish refugees from Europe seeking to escape Nazi tyranny. (My own family fled Nazi Germany in 1942 only to be refused entry and shunted to a refugee camp in the Dutch West Indies for 10 years before they could meet the quota and gain entry to the United States.) It comes as no surprise today that the U.S. immigration laws continue to reflect policy decisions at the top echelons of government.

One would think we would have gotten smarter about the use of such laws since then. Today's enemies largely call the Middle East home. Perhaps our best hope of developing cultural intelligence on these enemies—and developing intelligence units capable of cracking their cells—lies in the successful incorporation of recent immigrants from the Middle East into our antiterrorism efforts. And yet, according to Georgetown law professor David Cole, that is precisely the opposite of what U.S. immigration policy has done since Sept. 11. In fact, if policymakers had consciously tried to invent a system more capable of alienating immigrants and citizens of Middle Eastern descent, it's hard to imagine they could have done so. Only two U.S. citizens—Hamdi and alleged "dirty bomber" Jose Padilla—have received the full "enemy combatant" treatment wherein they are locked up indefinitely without access to courts, lawyers, or charges. But thousands more have been detained as something just short of enemy combatants, on technical violations of immigration regulations once enforced with the laxity of traffic rules. There are now 11.4 million legal permanent residents in the United States living in perpetual fear that their status may be in jeopardy next. The government may not be shackling these folks and shipping them off to Gitmo, but it is threatening their liberty nonetheless.

The second category of "enemy combatant lite" comes in the form of criminal prosecutions by the Justice Department for providing material support to terrorists or foreign terrorist organizations. One of the more important parts of the 2001 USA Patriot Act enlarged the definition of "material support" to include additional forms of activity such as "expert advice and assistance." Here, there have been only a handful of charges brought thus far, both because it appears there aren't that many active terrorist supporters in the United States and because the government has used other means (like immigration regulations) to target people who might otherwise qualify for prosecution under these criminal laws. Unfortunately, the problem doesn't stop there. The Justice Department has signaled in the material-support cases it has brought that it intends to interpret this law quite broadly and in such a way that could threaten millions of Americans' otherwise lawful political and social activities.

In the case of Idaho graduate student Sami Omar al-Hussayen, the government alleged that the operation of Web sites purported to raise money for terror-linked charities could form the basis of a material-support charge. It's been well-documented that al-Qaida makes extensive use of the information superhighway to conduct its daily affairs, but the government never quite showed how al-Hussayen's activities contributed to terrorism. Similarly, the docket of material-support cases filed since Sept. 11 has had a tangential connection—at best—to the actual conduct of terrorism by al-Qaida, as detailed in this column. Regardless of the specific case, the pattern has been the same: At the first sign of any terrorist connection, the Justice Department has mustered all the fire and brimstone at its disposal to say this was the case of the century—only to subsequently downgrade the status of these defendants to something less than America's most wanted.

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There is a good argument to be made for the material-support law, insofar as it targets the weakest links in the al-Qaida organization. Global terror networks rely on supporters in target countries to provide logistical and intelligence help, and without these networks of supporters, al-Qaida might be nothing more than a regional group of thugs. But prosecutions for material support can go too far, too—to the point where they infringe on speech and political activism that would otherwise be constitutionally protected. The definition of material support—which uses terms like "expert advice and assistance" and "training" to describe activities that are verboten—is itself too vague, at least according to one appellate court that looked at the law recently. Does running a Web site for fundamentalist Islamic causes qualify as material support? According to the Justice Department, it does, but not according to the jury who found al-Hussayen innocent of those charges. What about a Tamil-American doctor who wants to provide medical assistance to his countrymen in Sri Lanka despite the fact they're on the FTO list? Until a recent federal court ruling, such assistance was illegal. The Justice Department has argued that all assistance to an FTO is criminal, because money is fungible and helping the Tamil Tigers with health care frees up their internal resources to conduct more terrorist activity. From an operational perspective, the argument makes sense. But the consequence of this tack is to sweep up Americans giving time-honored forms of charitable assistance to groups whose causes they support, making them our supposed mortal enemies along with alleged combatants like Hamdi and Padilla.

Targeting material support never deals with the easy cases: We have yet to capture the people who financed or trained the Sept. 11 hijackers or who conducted reconnaissance of airports and targets before the 2001 attacks. Instead, the current cases revolve around individuals who can be considered incidental to the actual conduct of terrorism, at best, and arguably unconnected to the actual operational side of terrorism at all. If the Justice Department continues down this road, it may not be long before even more tangential forms of support qualify for prosecution. Certain forms of speech may well facilitate crime—as Justice Oliver Wendell Holmes wrote in his Gitlow v. New York dissent many years ago, "every idea is an incitement"—and those forms of speech may eventually become ripe for prosecution. The material-support law is new enough, and relatively untested before appellate courts, that we really don't know where this slippery slope of enforcement will lead to.

Americans ought to applaud the administration for finally doing with Hamdi what it should have done two or more years ago, once it realized he had no intelligence value and was likely not an enemy combatant at all. But at the same time, we should continue to question our administration as it struggles to find the balance between liberty and security. We should also pay close attention to Congress, lest they pass their own form of "enemy combatant lite," like the provision in the current intelligence reform bill that would allow immigrants and permanent residents to be deported back to countries that practice torture. Despite the sensationalism of the White House's sweeping claims of executive privilege and wartime power, the real fight over civil liberties since Sept. 11 has never really centered on the authority to detain men like Hamdi and Padilla; it has focused on these lesser known and more broadly enforced powers involving immigration authority and material support of terrorism.

Thanks to Hamdi and his lawyers, Americans probably don't have to worry about being locked up indefinitely in brigs as enemies of the state. But if you run a Web site or raise money for any of the causes the Justice Department finds questionable, you may want to give Mr. al-Hussayen in Idaho a phone call: He'd warn you that folks like you really might be next.