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In January 2004, President Bush delivered his annual State of the Union address. He reviewed the victories of the past two years in Afghanistan and Iraq, and assessed the war tasks ahead. Homeland security was prominent on the president’s agenda and its cornerstone was the Patriot Act, which Congress had passed in 2001 just after the World Trade Center attack. When the president came to the point in his address where he intended to ask legislators to renew the Act, there was an unscripted moment in the proceedings. “Key provisions of the Patriot Act are set to expire next year,” he said. The Democrat side of the chamber broke out in applause. The president paused to look in the direction of its opponents, and then, with emphasis on each word that followed, he said: “The terrorist threat will not expire on that schedule.” Now the Republican side applauded. “Our law enforcement needs this vital legislation to protect our citizens. You need to renew the Patriot Act.”
Just six days after the president’s speech, a federal judge in Los Angeles struck down one of the Patriot Act’s key provisions “aimed at blocking support for foreign terrorist groups.” The provision prohibited citizens from providing material support to foreign terrorist organizations by giving them “expert advice or assistance.” This provision had been incorporated from the “Anti-Terrorism and Effective Death Penalty Act,” signed into law by President Clinton in 1996 after the bombing of the Oklahoma federal building.
It was a Clinton appointee who decided in favor of the plaintiffs in the Los Angeles case, agreeing with their lawyers that the Patriot Act provision—which prohibited technical and personnel assistance to designated terrorist organizations—would violate the First Amendment. The governments’ lawyers defended the provision arguing that the law “made clear that Americans are threatened as much by the person who teaches a terrorist to build a bomb as by the one who pushes the button.” The judge’s rejection of this argument was summarized by a Wall Street Journal reporter as “a setback for government anti-terrorism policies.”
The Los Angeles lawsuit—Humanitarian Law Project et al v. Reno et al—was brought by the radical Center for Constitutional Rights, which had been challenging the law on behalf of the same defendants—the Kurdish Workers Party of Turkey and the Tamil Tigers of Sri Lanka—since 1996. The Center was one of a group of legal organizations—the fraternally related National Lawyers Guild was another—with a long history of legal campaigns against federal internal security measures and an equally long history of political agitation on behalf of radical and terrorist groups accused of violating them. Both organizations were core constituents of the “legal left” and its protest movements against American national security policies and against American policy generally.
The Center for Constitutional Rights was founded in 1966 by William Kunstler, Arthur Kinoy, and Morton Stavis, attorneys who were either members of the Communist Party or politically allied with the radical agendas of the “new left.” Michael Ratner, long time president of the Center has also been president of the National Lawyers Guild, which began as a Soviet front and has continued to embrace the Communist political heritage. The Center and the Guild are integral parts of the radical left and see themselves as the legal arm of a movement against American “imperialism.” Each has a long history of obstructing the American government’s efforts against Communism in the Cold War with Russia and in Vietnam and other fields of conflict.
Since the attorneys themselves are activists in these movements, they see themselves as supporters of radicals who are declared enemies of the capitalist system and are there to help them when they get themselves into trouble. In an interview with George Packer for the New York Times, Kunstler law partner Ron Kuby, a member of both groups was candidly introspective in talking about a colleague who had been indicted for aiding and abetting a terrorist: “Lawyers are cowards, Kuby told me, … They live vicariously through their clients. ‘Movement’ lawyers, especially, identify with the people they represent. … In the best of cases we identify with their determination, with their courage, and we see the people that maybe we could have been had we the courage to do what they did. And as a result, if you’re a good lawyer, you spend a lot of time doing gut checks. And because it’s a profession that is so cowardly, enjoying the aura of being those people without ever taking the risks of being those people, it’s easy to say: this is the right thing to do, I’m not hurting anyone, this is morally justified.”
While embracing the agendas of their clients, the radical legal groups assumed deceptive names like the Center for Constitutional Rights and passed themselves off as “civil liberties” organizations. Their terrorist clients, on the other hand, frequently presented themselves as “humanitarian groups.” This was the case with the plaintiffs in Los Angeles. The Court obligingly accepted their self-description at face value and referred to them as such, a practice adopted by the news media covering their legal proceedings. In the Los Angeles case, the plaintiffs bore names like the “Tamil Human Rights and Welfare Committee,” although this was in a fact a front group for a Marxist terrorist organization, the Liberation Tigers of Tamil Eelam.
There were actually two terrorist organizations involved in the Patriot case—the Kurdish Workers Party was the other—and they were among the largest in the world, responsible for hundreds of suicide bombings and more than 100,000 deaths between them. Both had been officially designated terrorist groups by Secretary of State Madeleine Albright during the Clinton Administration. In arguing their case, the lawyers for the Center for Constitutional Rights contended that the designation of groups as “terrorist” was itself unconstitutional—a position maintained by the legal left generally. But in Los Angeles, Judge Audrey Collins ruled against the plaintiffs, affirming that such governmental designations were valid.
The lead plaintiff in the case was an American organization, the “Humanitarian Law Project.” This was a radical organization with a record of years of service providing legal counsel and promotional help to the Kurdish Workers Party, the Liberation Tigers of Tamil Eelam and the Zapatistas, a Marxist guerrilla group in Mexico. The Humanitarian Law Project is part of a network of radical organizations funded by the Anagnos Peace Foundation and housed rent-free in the Anagnos Peace Center that includes the National Lawyers Guild and the Coalition for World Peace, an equally radical group. One of the member organizations in the Coalition is the Committees of Correspondence for Democracy and Socialism, a Communist Party faction co-chaired by Leslie Cagan, head of United for Peace and Justice. The directors of the Humanitarian Law Project are well-known leftists and veterans of the solidarity campaigns in behalf of the Communist movements in Central America in the 1980s.
In making its case, the Humanitarian Law Project claimed that the “expert advice” it provided to the terrorists was in the area of “international law and the art of peace-making and negotiation,” and that its free speech in these areas would be infringed by the Patriot Act. The government’s lawyer countered that advice in these areas “was not even arguably expert.”
Acting as lead counsel for the plaintiffs and the Center for Constitutional Rights was Georgetown Law Professor David Cole, himself a radical and one of the advisory board members of the anti-war organization and Maoist front group, Not In Our Name. In court, Cole maintained that the provisions of the anti-terrorism law that designated “material support” for terrorists a criminal act were unconstitutional. His argument was that they “do not require proof that an individual intended to further terrorist activity, and that the law, therefore, imposes guilt by association, rather than on the basis of one’s acts.”
The same argument was being used at the time by Palestinian non-governmental organizations who were refusing to accept US foreign AID “rather than sign a pledge promising that the money would not be used to support terrorism.” James Zogby, head of the radical Arab-American Institute, defended the Palestinian organizations saying that their refusal to sign the pledge, “should not be seen as support for terrorism,” and that the very “idea of providing non ‘material’ support’ is such a broad brush stroke, it compromises the ability of the humanitarian organizations to function.”
Both Zogby’s and Cole’s legal arguments ignored the fact that “accessory to a crime” and “conspiracy to commit murder” are features of established law. Their argument would make Saddam Hussein innocent of complicity in suicide bombings in Israel if the $25,000 donations he made to the families of “martyrs” were paid through a charitable organization. But as terrorism expert Michael Radu has observed, “In a globalized world of mass communications, travel and instant financial transactions [terrorist organizations like] the Kurdish Workers Party and the Liberation Tigers of Tamil Eelam cannot survive without international help. The same can be said of al Qaeda, Hamas, the Philippines’s New People’s Army, the Basque ETA and many other violent groups. As Clausewitz put it, war is the continuation of politics by other means. Giving ‘political and humanitarian’ aid to terrorists is paying for murder.”
The “material support” provision of the Patriot Act had become an important instrument in the battle against terrorism because terrorist organizations depended so heavily on political and charitable fronts for financial and legal help and to recruit members and advance their agendas. This was as true of the Irish Republican Army, whose political arm was Sinn Fein, as it was of Islamic terrorist groups like Hizbollah, Hamas and al Qaeda. Millions of dollars had been raised through charitable fronts in the United States to fund global Islamic terror.
Charitable and political non-profits were not incidental to the terrorist threat but central. A prime counter-terrorism effort of the federal government, for example, was to pressure the Saudis not to fund madrassas or religious schools which were the principal recruiting centers for al Qaeda. As terrorism expert Steven Emerson summed up, “By far the most important tactic utilized by terrorist groups in America has been to use non-profit organizations to establish a zone of legitimacy within which fund-raising, recruitment, and even outright planning can occur.”
An under-appreciated fact about the war on terror is that America itself is a primary base of Islamic terrorist operations. America has functioned as a prime organizing site for international terrorism because the liberties provided by the American legal system allow terrorists to travel freely, raise money, propagandize, recruit, and move men and money across international borders. Terrorist organizers, including the leaders of al Qaeda, Hamas and the Muslim Brotherhood have all traveled extensively in the United States, raised funds, recruited soldiers and sent emissaries back and forth across America’s borders. This makes control of borders and other immigration issues a crucial front in the anti-terrorist war.
Not surprisingly, the National Lawyers Guild, the Center for Constitutional Rights, the American Civil Liberties Union (ACLU), and associated legal experts like David Cole are also fierce opponents of border control and immigration security. They are leaders of the movement to open America’s borders and to establish rights for illegal immigrants that would blur the distinction between citizens and non-citizens and extend the protections of the Constitution to the latter. Since 9/11, this movement, which includes dozens of radical organizations, has targeted every effort by the Homeland Security Department under the Patriot Act to strengthen America’s borders.
The principal financier of the open borders movement is the Ford Foundation. Its $11 billion in assets makes it the largest dispenser of “philanthropic” dollars in the world. On the second anniversary of the 9/11 attacks, the Ford Foundation published a newsletter interview with David Cole about his new book (also Ford funded) Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism. The Ford grant to underwrite Cole’s book was intended to “safeguard human rights and civil liberties of non-U.S. citizens and to inform policy makers and the public about these issues.” The Ford newsletter warned that, “Cole’s fight has taken on new urgency, as the government has detained thousands of Arab-American and Muslim men, held hundreds of ‘enemy combatants’ without trial, charges or access to legal representation, and endorsed racial profiling in terrorism cases.”
In the interview Cole denounced “the criminalization of what the government calls material support for terrorist organizations (emphasis added). This is a practice that was introduced, again through the immigration law, against foreign nationals, but has now become part of the criminal law, and applies to both U.S. citizens and foreign nationals. It criminalizes any support of any blacklisted terrorist organization without regard to whether one’s support actually had any connection whatsoever to terrorist activity that the group undertakes.” As noted, however, making a member or supporter of a criminal group accountable for its crimes is an established legal concept. Funding a suicide bomber or the organization that supports suicide bombers obviously makes the crimes themselves possible.
The reforms introduced by the “Anti-Terrorism and Effective Death Penalty Act” of 1996 and the Patriot Act of 2001 were inspired by the fact that the existing framework of legal protections had made America a primary organizing base for global terrorism, and in particular for terrorism directed against the United States. Before embarking on their fatal mission on 9/11, all of the terrorists had lived and operated and trained within the United States. The terrorist organizations Hamas and Palestine Islamic Jihad had actually been created in the United States and were able to coordinate their worldwide terror with the aid of existing American laws.
Among the architects of the terrorist jihad who had taken advantage of the situation existing prior to the enactment of the anti-terrorism legislation was the Palestinian radical, Abdullah Azzam, the mentor of Osama bin Laden himself. A university professor and member of the Muslim Brotherhood, Azzam founded the Alkhifa Center in Peshawar in the early 1980s, where he had gone following the Soviet invasion of Afghanistan. Starting with only a storefront, he revived the concept of armed jihad among Muslims with the best selling tract, Defending the Land of the Muslims is Each Man’s Most Important Duty. In 1985, Azzam recruited a young Osama bin Laden to be the financier of the holy war he had launched against Israel and the United States.
As Steven Emerson reports, “It was in the United States that Azzam was able to raise much of his money, enlist new fighters, and—most important—enjoy the political freedom to coordinate with other radical Islamic movements. From 1985 to 1989, Azzam and his top aide, Palestinian Sheikh Tamim al-Adnani, visited dozens of American cities, exhorting new recruits to pick up the sword against the enemies of Islam. They raised tens of thousands of dollars and enlisted hundreds and hundreds of fighters and believers.” Thus, the First Conference of Jihad was held by Azzam not in Peshawar or Riyadh or Damascus, but in Brooklyn, at the Al-Farook Mosque on Atlantic Avenue. There, in 1988, Azzam exhorted the nearly two hundred Islamic militants who attended the conference with the following words:
Every Muslim on earth should unsheathe his sword and fight to liberate Palestine. The jihad is not limited to Afghanistan. … You must fight in any place you can get. … Whenever jihad is mentioned in the Holy Book, it means the obligation to fight. It does not mean to fight with the pen or to write books or articles in the press or to fight by holding lectures.
The terrorist centers created by Azzam were embedded in mosques and Islamic community centers across the United States. He opened branches of Alkhifa in Atlanta, Boston, Chicago, Brooklyn, Jersey City, Pittsburgh, Tucson and thirty other American cities as well as in Europe and the Middle East. He published a magazine called Al-Jihad with inflammatory articles directed against the United States, Christians and Jews, exposing their alleged crimes against Islam. “Al-Jihad called for Muslims to pick up the gun and wage jihad to kill the infidels and ‘all enemies of Islam.’”
According to Emerson, these Alkifah centers shipped bombs, timers and explosives to Hamas in Gaza, counterfeited money to purchase weapons, forged passports to enable Islamic militants to visit the United States and the jihad battle fronts. Azzam’s Tucson Alkifah Center was a base for Wadih el-Hage, Osama bin Laden’s personal secretary who was convicted of the bombing of the U.S. embassies in Africa. When Azzam was assassinated in Pakistan in 1989, a power struggle ensued to control his organization. The center of this struggle was not in Pakistan, but in the Brooklyn Alkhifa Center.
The victor in this struggle (his rival was also assassinated) was the blind sheik Omar Abdel Rachman, leader of a terrorist organization called the Islamic Group, and of the terrorist cell that bombed the World Trade Center in 1993 in an attempt to kill 250,000 people. (The group also intended to blow up the Lincoln and Holland Tunnels filled with rush-hour traffic, but the plots were thwarted.) When he was arrested for the Trade Center bombing, the blind sheik was represented by Lynne Stewart, a Center for Constitutional Rights attorney and a member of the National Lawyers Guild. In direct defiance of a Justice Department order, Stewart used her role as the sheik’s counsel to enable him to communicate with his terrorist followers in Egypt, specifically to break a truce between violent factions. The Justice Department promptly indicted Stewart for providing material support to terrorist organizations.
Stewart’s attitude towards her terrorist client (and he was not the first) was described by her Center for Constitutional Law colleague Ron Kuby this way: “When the lawyer is as loving and committed as Stewart, [Kuby] said, and the client as charismatic as Sheik Omar Abdel Rahman, the identification becomes passionate.” Stewart described her own view of “Muslim fundamentalists” to the radical magazine Monthly Review: “They are basically forces of national liberation. And I think that we, as persons who are committed to the liberation of oppressed people, should fasten on the need for self-determination. … My own sense is that, were the Islamists to be empowered, there would be movements within their own countries … to liberate.”
When asked about her attitude towards terror by the New York Times, “Ms. Stewart suggested that violence and revolution were sometimes necessary to right the economic and racial wrongs of America’s capitalist system.” Stewart elaborated: “I don’t believe in anarchistic violence, but in directed violence. That would be violence directed at the institutions which perpetuate capitalism, racism, and sexism, and the people who are the appointed guardians of those institutions, and accompanied by popular support.” This was a solid basis for what Kuby described as the “passionate … identification” between radical attorneys like Stewart and their terrorist clients.
Stewart’s comradely attitude towards Islamic terrorists was hardly unique in the American left. One of the most sophisticated terrorist leaders based in America was able to insert himself into the very heart of this left and become one of its best-known Muslim figures. Osama (Sami) al-Arian was a Palestinian professor of engineering who operated out of the University of South Florida. Al-Arian created two non-profit organizations, a think-tank associated with the University called the World Islamic Studies Enterprise (WISE) and the Islamic Committee for Palestine, which raised funds and recruited soldiers for Islamic jihad. Al-Arian’s Islamic Committee had featured the blind sheik, Omar Abdul Rachman, as a guest speaker while Tarik Hamdi, a board member of WISE was known by authorities to have personally delivered a satellite telephone and battery pack to Osama bin laden in Afghanistan in May 1998.
Sami al-Arian was, in fact, the North American head of Palestinian Islamic Jihad, one of the principal terrorist organizations in the Middle East, responsible for suicide bombings that took the lives of more than a hundred people including two Americans, aged 16 and 20, before he was arrested in February 2003. An FBI surveillance video of al-Arian’s fund-raising tour of American mosques shows al-Arian being introduced as “the president of the Islamic Committee for Palestine. … the active arm of the Islamic Jihad Movement.” While others in the video praise the killing of Jews and Christians, al-Arian states, “Let us damn America … Let us damn [her] allies until death.” In another speech al-Arian said, “We assemble today to pay respects to the march of the martyrs and to the river of blood that gushes forth and does not extinguish, from butchery to butchery, and from martyrdom to martyrdom, from jihad to jihad.”
In 1997, Al-Arian created another organization, the National Coalition to Protect Political Freedom. He appointed Kit Gage a member of the National Lawyers Guild and a veteran of the anti-Vietnam left to be its executive director. The specific purpose of the National Coalition to Protect Political Freedom was to oppose the “Anti-Terrorism and Effective Death Penalty Act”—the predecessor to the Patriot Act—which had been passed in 1996 following the bombing of the Federal Building in Oklahoma City, a terrorist atrocity which killed 175 innocent people. Pursuant to the Act, Palestinian Islamic Jihad was declared a terrorist organization. The Act made “material support” for terrorist organizations illegal and authorized the use of secret evidence in terrorist cases. Sami al-Arian’s brother-in-law Mazen al-Najjar was arrested under its terms, held for three and a half years and eventually deported after 9/11. His attorney was David Cole, the Center for Constitutional Rights counsel in the Los Angeles Patriot Act case and the Ford Foundation’s legal scholar and advocate against post-9/11 immigration controls.
Among the organizations supporting al-Arian’s “civil liberties” crusade against the terrorist legislation were the National Lawyers Guild, the Center for Constitutional Rights, the ACLU, the American Muslim Council and the Council on Arab-Islamic Relations (CAIR), two radical Islamic groups which also pretended to be civil liberties organizations. CAIR is an offshoot of the Hamas-created Islamic Association for Palestine and several of its leaders have been arrested as terrorists. The American Muslim Council is the “founder, corporate parent and supporter of several militant Islamic groups, while its leaders have openly championed Hamas terrorists, defended Middle Eastern terrorist regimes, [and] issued anti-Semitic and anti-American statements.”
The 120-page indictment of Al-Arian issued by the Ashcroft Justice Department was based on a seven-year investigation including extensive wire-taps of al-Arian’s conversations with Hamas terrorists in Syria and the Middle East. Among the 200 specific acts connecting al-Arian to the terrorist organization listed in the indictment were a fax sent “to Saudi Arabia, [that] inquired about obtaining palletized urea fertilizer [a chemical compound used in explosives] in fifty kilogram bags suitable for ocean transportation,” and telephone calls arranging payments to the families of suicide bombers, which was one of al-Arian’s responsibilities as financial head of the terrorist organization.
Sami al-Arian was arrested for his terrorist activities in February 2003. He had been under investigation by the FBI since 1996 and had long been publicly identified as a terrorist by close observers of the Islamic jihad movement like Steven Emerson. The basis for their suspicion was fairly transparent. For example, one board member of al-Arian’s think-tank (WISE), a Palestinian academic named Khalil Shiqaqi, was the brother Fathi Shiqaqi the well-known founder of Palestinian Islamic Jihad. When Fathi Shiqaqi was assassinated, he was replaced as head of the terrorist organization by Ramadan Abdallah Shallah who was the director of al-Arian’s think-tank and a board member of WISE himself. At the same time, Al-Arian’s non-profit—the Islamic Committee for Palestine—was involved in raising money and recruiting at public events across America to “sponsor” Palestinian martyrs and featuring appeals by fundraisers “who begged for $500 to kill a Jew.”
When Emerson began warning the public about al-Arian’s terrorist recruitment efforts and his connections to Palestinian Islamic Jihad, he was ferociously attacked for “Muslim-bashing” and “McCarthyism” by prominent figures in the political left, among whom al-Arian was by now a familiar colleague. On September 26, 2001 al-Arian made the mistake of appearing on the FoxNews Channel’s O’Reilly Factor. The host confronted al-Arian with his public calls for “Death to Israel” and declared, “If I was the CIA, I’d follow you wherever you went.” The ensuing public uproar produced enough embarrassment to University of South Florida officials that they finally suspended al-Arian from his professorship, albeit with pay.
Al-Arian immediately adopted the posture of the victim: “I’m a minority,” he said. “I’m an Arab. I’m a Palestinian. I’m a Muslim. That’s not a popular thing to be these days. Do I have rights, or don’t I have rights?” The American left sprang to al-Arian’s defense. Their efforts included articles in The Nation and Salon.com, whose reporter Eric Boehlert called it, “The Prime Time Smearing of Sami al-Arian” and explained, “By pandering to anti-Arab hysteria, NBC, Fox News, Media General and Clear Channel radio disgraced themselves—and ruined an innocent professor’s life.” Others who joined the al-Arian defense chorus included the ACLU, the Center for Constitutional Rights, the University of South Florida faculty union, and the American Association of University Professors. The leftist head of Georgetown’s Middle East studies program, John Esposito, expressed concern that al-Arian not be a “victim of … anti-Arab and anti-Muslim bigotry,” and Ellen Schrecker, the foremost academic expert on the McCarthy era (who regards American Communists as well-meaning social reformers and innocent victims of government persecution) called al-Arian’s suspension “political repression.”
After the O’Reilly show and just before al-Arian’s indictment, Duke University held a symposium on “National Security and Civil Liberties.” Al-Arian was the featured (and university-sponsored) speaker. After his arrest, a report on his appearance at Duke was posted on the leftist website CommonDreams.org. It was written by Sarah Shields, a professor of Middle Eastern Studies at the University of North Carolina: “Professor Sami al-Arian made an impassioned plea for free speech. An immigrant, a professor, a leader of his Muslim community, al-Arian had campaigned against the use of secret evidence in court, embracing the democratic guarantees of a constitution designed to protect the innocent. Professor al-Arian had seen first hand the triumph of our most valued principles. At a time when Americans needed the information about the growing number of Muslims in this country, he helped found a think-tank [WISE] devoted to the study of Islam in this country. … Sami al-Arian has spent the past decade arguing passionately for the freedom of conscience, for the protections against arbitrary imprisonment that form the very foundations of our civilization. Now he is locked up, unable to appear in court in his own defense, awaiting trial under conditions uncommon for even the worst convicted criminals. … When I was in preschool, I heard fairy tales about all-powerful kings who arbitrarily threw people into dungeons. When I was in Hebrew school, I learned how Jews were rounded up by rulers during times of instability. … And today I wonder: was there a warning in those fairy tales, those stories about bad kings, evil advisors, and their dungeons?”
Sami al-Arian was arrested five months after the O’Reilly episode. The arrest took place seven years after the FBI investigation began, and was made possible only by provisions adopted in the Patriot Act. The reason for the long delay was the existence of a government rule that created a wall between criminal and intelligence investigations, and barred agents of the FBI and intelligence agencies from communicating with each other. It was this rule that had prevented FBI agents in Minneapolis from breaking into the computer of Zacarias Moussaoui—the so-called “20th hijacker”—a month before 9/11. Had the FBI agents been given permission to search Moussaoui’s computer, two of the 9/11 hijackers would have been identified along with the Hamburg cell that planned the attack, and it is possible that the 9/11 tragedy would have been averted.