Stretching The Evidence To Fit

By Cernig

Eric Umansky emailed to point out his latest piece at MoJo, an examination of how the rules of evidence as commonly understood in civilized jurisprudence are being stretched all out of shape by the Bush administration as they try to secure minor terrorism convictions on chages of "aiding" terrorists.

The laws on material support provisions are far broader than commonly appreciated and the administration has used them as the basis for many of its controversial terrorism cases. It turns out you can aid terrorists in the criminal sense, and end up in jail, by just thinking. (Emphasis below is mine)

Material-support laws are not like other laws. Central to what the Department of Justice has described as an approach of "strategic overinclusiveness," they have underpinned many of the government's most controversial criminal terrorism cases, from the so-called Lackawanna Six—young men from upstate New York who trained at, and later fled from, a militant camp in Afghanistan—to José Padilla, the man once accused of being a "dirty bomber."

Indeed, look at the heavily criticized "foiled plot" cases over the past few years—the ones with an informant at the center offering encouragement and often much more—and you'll find material support charges underlying nearly all of them. Material-support statutes have been cited to deny thousands of immigrants—some on the run from actual terrorists (see file of "Kumar the Fisherman," above)—entrance into the country and are offered by the Pentagon as justification for detaining hundreds of people at Guantanamo, many of whom have provided little more "support" than being, for example, conscripted to cook for the Taliban.

There's a reason material support has become such a popular charge, a reason it's central to many of the government's most questionable cases: The laws are a prosecutor's dream. They don't require evidence of a plot or even of a desire to help terrorists. They give the government a shot at convictions traditional criminal laws could never provide. "The administration adopted the preventive paradigm, i.e. 'We've got to stop people before they've done something wrong,'" says David Cole, a Georgetown University law professor who's the author of several books about the effect of anti-terror laws on the justice system. "There's tremendous pressure to expand grounds of criminal activity, to prosecute people who might represent a threat. The material-support provisions have been the principal vehicle for pushing that envelope."

...The core concept behind the criminal material-support laws—there are two—seems, at first glance, to be straightforward. The first law, passed in 1994 after the first World Trade Center bombing, bans almost any support of terrorist activity. The second law, passed in 1996 in the wake of the Oklahoma City bombing, criminalizes knowingly giving support, financial or otherwise, to groups designated as foreign terrorist organizations, even if the money is supposedly earmarked to support peaceful activities—say, a hospital for Hamas.

Think of the laws as "aiding and abetting"—only on steroids. It has always been illegal to support criminal activity. If a man drives a getaway car for bank robbers, then he can be charged for the robbery, too. Prosecutors have simply had to show that there was an intent to further the crime and some meaningful connection between the help and the crime itself.

What the material-support laws did was roll back those requirements. A taxi driver hired for a short drive by a Hezbollah politician—a driver who had no intention of engaging in terrorist activity—would, so long as he knew the politician was with Hezbollah, be guilty of providing material support. That's because the laws that define "material support" contain a long list of often nebulous activities, such as providing "property, tangible or intangible" or "service," and are applied whether or not those activities truly helped advance the cause of a terrorist group, and regardless of the suspect's intentions. The laws make little distinction between the taxi driver and, say, an arms merchant who sells detonators to Hezbollah. The Patriot Act extended the concept further, making it illegal to attempt or conspire to provide material support. Before, prosecutors had to prove you gave support. Now they just have to show you wanted to.

That change, along with other newly exploited vagueness in the existing material-support laws, opened up a whole new path for prosecutors. In the Padilla case and others, the government has argued successfully that a suspect is guilty of attempting to provide material support even if the plot he allegedly supported was purely a government concoction or, just as curious, even if the government hadn't said what group or plot the accused might have been supporting.

Prosecutors have only had to show that the accused expressed interest in helping—as the government puts it—the "global jihad movement." "Under our system you have to show a defendant has done something specific," says Peter Margulies, a national security scholar at Roger Williams law school in Rhode Island. "These charges are really a departure from the usual way of our doing justice."

Go read the whole thing, including the case studies Eric has appended to the main piece.

Between torture, the roll-back of the centuries-old practise of universal habeas corpus and now this, America under Bush has ceased to acknowledge the universal rule of law as understood by the rest of Western civilization.