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Column for Los Angeles Daily Journal & San Francisco Recorder

Pursuing Justice

A Non-"Defining" Day in the War on Terrorism

Peter A. Schey
President, Center for Human Rights and Constitutional Law
(Los Angeles, CA. October 6, 2002)


While everyone agrees that fighting terrorism must be a top priority of law enforcement at all levels, the October 4th arrests of four U.S. citizens is hardly the major "victory" claimed by Attorney General Ashcroft. Pointing to the arrests of four Oregon residents, the guilty plea of Englishman Richard Reid, and the sentencing of Marin County's John Walker Lindh, Ashcroft, speaking at a major press conference, hailed October 4th as a "defining day" in the war on terrorism.

However, prosecutors have offered no evidence that any of the US citizens charged in recent weeks in Michigan. New York and Oregon have had any contact with Al Qaeda or any other terrorist group, nor has any evidence emerged suggesting that they were preparing to attack or have ever sought to attack any American targets.

"Defining" comes from the Latin words de- + finire, meaning to limit, or to end. A defining moment in World War II, for example, was June 6, 1944, when Allied invasion forces under the command of General Eisenhower began landing on the northern coast of France. A defining time in the Cuban missile crisis was October 22, 1962, when President John F. Kennedy announced a strict quarantine on all offensive military equipment under shipment to Cuba. If Ashcroft thinks that the events of October 4th are a defining day in the war on terrorism, its worth carefully considering what, if anything, made it so.

At the top of Ashcroft's press announcement was the arrest of four United States citizens accused of planning to join Al Qaeda, one year earlier, if they could ever find it. This group or Oregon residents, much like millions of young Muslims around the world, saw it as their duty to travel half way around the world to defend the Taliban--though they probably thought, to defend Afghanistan--against outside invasion and bombardment. Minds may differ on this plan. When the United States military action started in Afghanistan, there was no hard evidence linking Al Quada with the September 11 attacks, and the Taliban had offered to produce Bin Laden before an international or third country tribunal.

Given the high level of resentment against the United States in wide areas of the Arab world caused by a combination of our support of family dictatorships in the region, plundering of Arab oil, and neglect of the Palestinian issue, it is not surprising that pockets of young people scattered throughout that world believed it was their duty to help defend the Taliban. While the Taliban were hopelessly lost on issues of human rights and democracy, the desire to defend Afghanistan against another foreign invasion was entirely unrelated to the terrorist killing of civilians on September 11.

Arresting and overcharging a handful of U.S. citizens who were observed firing weapons in a gravel pit in late September 2001, and a year ago embarked on an unsuccessful search for a way to enter Afghanistan, is hardly a major "victory," as Ashcroft put it, in the war on terrorism. While Ashcroft knows all the buzz words--today we've "neutralized" a suspected "terrorist cell"--and the charges grandly include conspiring to "levy war against the United States," it is more realistic to observe that a year ago a handful of Oregon citizens wanted to fight along-side the Taliban but had trouble even crossing borders to do so, there is no known evidence that any of them had contact with Al Qaeda or the Taliban, nor is there any information suggesting that they intended to attack any American targets.

It seems the F.B.I. was aware the group had been observed by a local law enforcement officer gun practicing in September 2001, and was even aware of their plans to travel to Afghanistan, but did nothing to stop them. An F.B.I. official commented, "They were American citizens. They hadn't broken any laws yet. You can't stop them from traveling." It is more than a fair question to ask, if you can't legally stop them from traveling, can you charge them with a crime for having done so? Or is this really a prosecution over this small group's beliefs and associations, matters generally protected by the First Amendment?

The second big announcement of the day involved John Walker Lindh's sentencing to 20 years behind bars. In the Qala-i-Jangi prison fortress in Afghanistan last November, a few hours before he became the first United States officer killed in that war, CIA agent Johnny Spann discovered a half-starved, dirt-covered Lindh. Snapping his fingers in front of Lindh's face, Spann asked: "Hey ... Wake up! Who brought you here? How did you get here?" Spann's last questions were never satisfactorily answered in the prosecution of Lindh that followed.

Nor for that matter, were important legal issues answered. Is it a crime under the federal constitution for someone to take up arms in defense of a foreign government under aerial bombardment by this country aimed at toppling that government? In this instance, the United States never declared war against the government of Afghanistan pursuant to the mechanism provided for in the United States Constitution. There is evidence the Northern Alliance, the main group fighting the Taliban, were ruthless and bombed villages and thought nothing of killing captured Taliban fighters. There is no evidence that Lindh had any connection whatsoever with the September 11th terrorist attacks. There is evidence that agencies like the FBI and the CIA and the INS could have done more to prevent these attacks than Lindh. There is no evidence that Lindh ever fired his weapon at or near any United States soldier.

John Walker Lindh shed all of his materialistic concerns and became a foot soldier in the fundamentalist jihad to preserve a conservative view of the Koran. He attended a madrasah--an Islamic fundamentalist school--in Pakistan where he memorized the Koran and then, like thousands of other young graduates, went off to join the jihads in Afghanistian, Kashmir and Kunduz. He says he was convinced to join this struggle by stories of atrocities committed by the Northern Alliance against Afghani civilians. There is no evidence that he went to Afghanistan to fight Americans, and he claims he did not. U.S. District Judge T.S. Ellis III. made clear at Lindh 's sentencing that the government had no evidence indicating that Lindh was in any way responsible for CIA agent Spann's death.

In the end, Lindh pled guilty only to carrying explosives and aiding the Taliban. For his misguided religious zealousness, and where it led him, he will serve at least 17 years in a federal prison.

Slamming John Walker with a 20 year sentence however is hardly a "defining" day on the war on terrorism when on the same day thousands of young militants primed to join the jihad are graduating from fundamentalist schools all around the world. Its hardly a defining day when none of the men who trained, armed, and led Mr. Walker have been captured, tried or convicted. Its somewhat like claiming you've harpooned Moby Dick when what you actually did was net a sardine.

The final event in the trilogy making October 4th a defining day in the war of terrorism for Ashcroft, was the guilty plea of Englishman Richard Reid. He admitted that he intended to blow up an American Airlines transatlantic plane with explosives hidden in his shoes. He is obviously not too well balanced and his belated claim--after months of denial--that he is an Al Qaeda member is of questionable truthfulness. His conviction or guilty plea was predictable. After all, sitting in his airline seat, this man with a fifth grade education took off his shoes and six times used matches trying to light the explosives hidden in his shoes. Horrified and angry fellow travelers promptly tied him up using their belts. While obviously an inept and dangerous terrorist, his conviction was a foregone conclusion.

Reid e-mailed his mother from prison saying he sees himself as "part of the ongoing war between Islam and disbelief," and he felt a duty "to help remove the oppressive American forces from the Muslim lands." From the moment he was restrained on American Airlines Flight 63, it was obvious Reid would be spending the rest of his life in a U.S. prison. His rambling guilty plea is a mere formality along his road to a life of imprisonment, not a defining moment in the war on terrorism. The Justice Department has not won Reid's cooperation, nor have investigators arrested those who made the explosive device found in his shoes. None of those who guided this deranged fellow on his mission have been identified, arrested or convicted.

The Attorney General offers no reports on the unsuccessful search for Bin Laden. He offers no reports on efforts to crack down on Saudi Arabia's financing of hundreds of fundamentalist schools around the world breeding fighters for the jihad. He offers no reports how and why the September 11 attackers were permitted to lawfully enter and remain in the United States. He offers no reports on any useful information obtained from the Afghani prisoners in Camp X-Ray, or how much longer they will be detained, or whether they will ever be charged with anything or entitled to a defense or any procedural protections. He offers no reports on the effort to capture and bring to justice Mullah Omar, the leader of the Taliban. He offers no evidence of operating Al Quada camps anywhere in the world planning further attacks on the United States, or their destruction by U.S. forces. These would be defining moments in the war on terrorism.

In terms of constitutional rights and civil liberties, there were perhaps more "defining" days when the Bush administration announced it would set up military courts outside of any international structures in which to charge and try non-citizen alleged enemies, or when it announced the power to detain even United States citizens considered enemy combatants without charge or access to lawyers, or when it rounded up hundreds of non-citizens using the INS to detain them without formal charges, or when it was denied sweeping domestic surveillance authority by the Foreign Intelligence Surveillance secret court, or when it closed deportation hearings making their process and the identities of those charged national secrets.

The Attorney General's hyperbole may lead some people to believe that the war on terrorism is making real progress, and this may give the President's interest in starting a new war against Saddam Hussain a boost. But getting a guilty plea from an obviously deranged and fumbling Englishman, and a prison sentence for a young misguided idealist from wealthy Marin County who never touched a hair on any U.S. soldier's or civilian's head, and arresting a handful of people who wanted to fight in Afghanistan but couldn't even get across its border, seem to add very little to the scales of justice compared with the enormous crimes against humanity committed on September 11th.

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