Many expected the Obama administration to slow or altogether stop the growth of the national security state that its two predecessor administrations brought into being, but just the opposite has occurred. Prisoners are still held without charge at Guantánamo Bay; the Patriot Act is still the law; t
Many expected the Obama administration to slow or altogether stop the growth of the national security state that its two predecessor administrations brought into being, but just the opposite has occurred. Prisoners are still held without charge at Guantánamo Bay; the Patriot Act is still the law; the administration has retained the use of rendition and protected state secrets with punitive vigor. President Barack Obama’s Justice Department has prosecuted more whistleblowers than all others combined. In key respects, indeed, the Obama administration has expanded and institutionalized the national security state.
On the one hand, the administration is reinvigorating age-old policies such as the Espionage Act of 1917, which it is using to try whistleblowers. One the other hand, it has attempted to bring previously unprotected law enforcement and detention practices, such as military tribunals and the suspension of habeas corpus, under the umbrella of legality. Unlike the Bush administration, which often acted outside the law, the Obama administration is intent on protecting itself by using the law. In fact, an article by civil rights attorney Bill Quigley reports that over 2,600 activists have been arrested since Obama was elected. While this figure is surely below the actual number, it reveals a steady increase over previous years. [1]
And the Obama administration has yet to abandon the Bush administration’s racial and religious profiling. To the contrary, the Obama administration has also begun a widespread effort to prosecute individuals based on political and ideological profiling. The Bush administration often targeted Muslim charities and mosques, accusing them of material support for terrorism. But during Bush’s eight years in office, that charge was rarely used against non-Muslims. Now the Obama administration is using the same allegation to go after primarily non-Muslim activists engaged in international solidarity with Palestine. Two ongoing cases illustrate the extent of profiling in government investigations and the continuity between administrations in shoring up the national security state.
In February 2011, Muslim leaders in Southern California filed Fazaga v. FBI, a major class action lawsuit. [2] The first of its kind in US history, the lawsuit alleges that the FBI’s use of an undercover informant violated the establishment and free exercise clauses of the First Amendment, the equal protection clause, the Fourth Amendment right to be free of unlawful searches and seizures, and other rights enumerated in the Foreign Intelligence Surveillance Act, the Religious Freedom Restoration Act and the Privacy Act.
In June 2006, Los Angeles FBI Assistant Director Stephen Tidwell spoke at a forum for the Muslim community in an Orange County mosque. There, he assured local Muslims that the FBI would not send covert informants into mosques and that the agency’s efforts to build relationships with the Muslim community would be open and public.
During that same period, the FBI hired Craig Monteilh, a white non-Muslim male, to operate as a paid informant and provocateur. His primary task was to gather information about Muslims in Southern California. As part of this effort, Monteilh requested a meeting with the imam of the Islamic Center of Irvine, told the imam he was of Syrian and French descent and just one week later formally converted to Islam before a congregation of hundreds. For months, he attended prayer at least once per day and built close relationships with people at the mosque. He eventually began to appear more outwardly pious, wearing traditional Muslim clothing and discussing the tenets of Islam with the members of the mosque. He also memorized Qur’anic verses that his supervisors had selected because they seemed susceptible to “jihadist” interpretation. The FBI believed Muslims’ reactions to these verses would elicit responses that revealed whether someone was a threat, thereby justifying further surveillance.
Monteilh gathered information on mosque members regardless of their ethnic origin or dominant language. Though he was in his forties, he spent much of his time building relationships with college-age youth, asking them questions about their politics, religious views and propensity for violence. At one point, Monteilh asked one of the youth members of the mosque, Ali Malik, what would happen if someone told the imam he wanted to blow himself up. Malik responded that the imam would probably think this person was crazy, so Monteilh persisted, and asked if there were other Muslim clerics in the area who would respond favorably to such a desire. Malik told Monteilh there were no such imams or mosques in Southern California as far as he knew.
On another occasion, Monteilh asked the same young man about jihad. When Malik answered that jihad means “struggle,” referring to the spiritual struggle to purify oneself, Monteilh pressed him about whether it meant physical violence, and resisted Malik’s answer that it did not. Malik eventually stopped attending the mosque because Monteilh was there so often. Ali Malik is now a named plaintiff in the lawsuit against the FBI.
Monteilh’s supervisors told him to focus on young men and people who studied Islamic law, went on the hajj, played leadership roles in the community or attended dawn and late evening prayers. The FBI believed that displays of devotion warranted particularly rigorous monitoring. Twice, Monteilh’s supervisors presented him with a large bulletin board bearing 200 photos of Southern California Muslims and community leaders. Monteilh was asked to arrange the photos from the most to least dangerous and into possible cells based on ethnicity or leadership.
Monteilh was sent to about ten mosques in Southern California, and would sometimes visit as many as four mosques per day to talk with people. His supervisors told him that electronic surveillance equipment had been installed in at least eight area mosques. At one point, they told him they could get in a lot of trouble if the public knew of the surveillance they were carrying out, leading Monteilh to believe they did not have the required warrants.
In addition to this general surveillance, Monteilh was instructed to attend lectures by religious scholars and record them on video. To that end, the FBI equipped him with a camera small enough to fit inside a shirt button. He was also given a key fob (resembling the remote control for a car lock) that had a recording device inside. With the key fob, he was able to record conversations of which he was not a part by leaving the device somewhere and walking away. In fact, he left the key chain around the mosque so often that people in the mosque joked about it. Often, if someone found his keys, she would deliver them to the imam’s office, unknowingly enabling the FBI to monitor the private conversations that the imam had with congregrants in his office.
Finally, Monteilh’s supervisors told him to collect cell phone numbers and e-mail addresses, giving him a quota of ten sets of personal coordinates per day. Monteilh was told that once a Muslim called his cell phone or e-mailed him, the FBI could tap into the Muslim’s phone and e-mail program to download the contact lists. All this information was allegedly kept in a database that could be monitored for international calls. In fact, Monteilh was told that all the information he collected was retained.
The investigation eventually came to an end after 14 months. Around May 2007, Monteilh told people in the mosque that it was his duty as a Muslim to take violent actions and that he had access to weapons. Concerned members of the community reported both this incident and Monteilh’s general behavior to the Council on Islamic Relations (CAIR), which in turn alerted both the FBI and the Irvine Police Department. Subsequently, in June, one of the mosques brought an action for a restraining order against Monteilh, which a California court granted. At around the same time, Monteilh’s supervisors told him that the FBI no longer trusted him. He was told that he would be going on hiatus. Eventually, Monteilh was outed. In the winter of 2009, the government arrested a Southern California community leader, Ahmed Niazi, for lying on his naturalization application. During Niazi’s bail hearing, an FBI agent testified that he had heard numerous recordings of conversations between Niazi and a confidential informant, the man that CAIR had reported to the FBI. Together, these in-court statements revealed that Craig Monteilh was an informant hired by the FBI. (The charges against Niazi were subsequently dismissed.) Over the course of this investigation, the FBI paid Monteilh over $170,000. Not surprisingly, this massive surveillance and religious profiling effort produced not a single terrorism conviction.
In the fall of 2010, 70 agents from a multi-agency task force that included the FBI, the Chicago Police Department, the Minneapolis Police Department, the Department of Homeland Security and other agencies raided the homes and offices of anti-war and international solidarity activists in Chicago, Minneapolis and Grand Rapids, Michigan. The agents remained at some of these homes for a total of 12 hours, collecting children’s artwork, family photos, passports, cell phones and computers.
Hatem Abudayyeh, executive director of the Arab American Action Network and a prominent figure in the Palestinian-American community, was confined to the couch with his wife and 5-year old daughter while the agents scoured the family home for everything that said Palestine on it -- pillows, pictures from his wife’s and daughter’s summer trip to the region, home videos, books and papers. The agents left the Abudayyeh home carrying boxes of the family’s personal belongings.
All in all, the government raided seven homes and offices and subpoenaed 14 individuals to testify before the federal grand jury in Chicago. All 14 refused to go before the grand jury, believing they were being unfairly targeted as a result of their activism in opposition to US foreign policy in the Middle East, Afghanistan and Colombia. Following this refusal, the government issued additional subpoenas in an attempt to get nine other people to testify. The targets of the raids and subpoenas fell into two categories: Americans who had done international solidarity work with Palestinian NGOs, and Palestinian-Americans who had traveled to the region or been involved in American activism demanding an end to the Israeli occupation. All 23 people were again subpoenaed to go before the grand jury in January 2011. Again, all 23 refused. The search warrants and subpoenas alleged “material support of terrorism.” The investigation came on the heels of the Supreme Court’s landmark decision in Holder v. Humanitarian Law Project, which offers a partial definition of material support. [3] The concept of material support emerged in the Clinton administration’s Antiterrorism and Effective Death Penalty Act of 1996, but has since been amended, clarified and expanded several times, including by the Patriot Act. Holder v. Humanitarian Law Project was brought by an NGO interested in using mechanisms of international law to promote peaceful resolution of conflict. The case was appealed all the way to the Supreme Court, and in the 2010 decision, the Court found that because Humanitarian Law Project’s effort would involve “coordinated advocacy” with groups designated by the State Department as foreign terrorist organizations, its activities would qualify as “material support for terrorism.” The activities were to include educational efforts aimed at fostering peace and non-violence.
As a result of this broad interpretation of “material support,” the Supreme Court’s decision effectively criminalizes many First Amendment activities. Though the Court went to great lengths to reason that its decision is protective of First Amendment rights, the decision does not clearly articulate the definition of coordinated advocacy. As a result, various kinds of political speech previously protected by the First Amendment could be considered material support for terrorism. A prominent example is the US-based movement against South African apartheid and in support of the African National Congress, which President Ronald Reagan considered a foreign terrorist organization. Had these material support laws been in effect during that era, the entire anti-apartheid movement would have been guilty of material support of terrorism. Even today, President Jimmy Carter’s election monitoring work in Lebanon, which was conducted in collaboration with Hizballah, would qualify as material support of terrorism. (In 2007, Chiquita Banana was fined, but not otherwise penalized, for paying protection money to elements of the Revolutionary Armed Forces of Colombia, or FARC, also classified as a foreign terrorist organization.)
When FBI agents raided the offices of the Minneapolis Anti-War Committee on September 24, 2010, they mistakenly left behind their “operation plans.” This file of secret FBI documents was found on April 30, 2011 and included an extensive set of interview questions. [4] A brief sampling: “What do you know about the Popular Front for the Liberation of Palestine? Where is it based? What is its philosophy? Have you, or anyone you know, ever given money intended for the Union of Palestinian Women’s Committee? Have you ever assisted in raising funds for a trip to Israel, West Bank or Gaza? What is your husband’s immigration status? Do you have a ‘red’ name? What did you do with the proceeds from the Revolutionary Lemonade Stand?”
These documents reveal that the FBI closely monitored the political and personal activities of the activists and was particularly critical of the activists’ relationships with the Palestinian movement. The files also listed the names of activists in other parts of the country who, while not yet raided or subpoenaed, were also subjects of the investigation. One of these individuals was Carlos Montes, a long-time Chicano activist. On May 17, the SWAT team of the Los Angeles Sheriff’s Department and members of the FBI raided his home. As they did during the raids of the Chicago and Minneapolis activists, the agents ransacked his house, taking his computer, cell phones, photos and mementos of political activities in support of immigrant rights. They also gathered papers related to Montes’ history of activism in the Chicano movement, dating as far back as 44 years.
The material support laws carry a penalty of up to 15 years in prison and high fines. More important, these laws, in combination with the FBI raids and subpoenas, have exerted a chilling effect on anti-war activism. It is clear that the US Attorney’s office in Chicago intends to prosecute at least a small portion of the 23 activists who were subpoenaed last fall. Moreover, the raid on Carlos Montes exposes the government’s efforts to continue monitoring the First Amendment activities of activists throughout the country.
In defense of the raid victims and the subpoenaed activists, organizations throughout the country have developed a national Committee to Stop FBI Repression, which is supported by local committees as well. This committee has engaged in nationwide call-in days to Chicago-based US Attorney Patrick Fitzgerald and Attorney General Eric Holder. The committee has also called for local days of action, and has organized legislative visits on Capitol Hill to urge elected officials to use their influence to stop these investigations. In addition, legal advocacy organizations around the country have come together to form the First Amendment Advocacy Network, a national network conducting research and education on the inefficacy and unworkability of these material support laws, and urging increased legislative oversight of the FBI.
The post-September 11 national security state is still in formation. The Obama Justice Department’s activities may look intended to test the limits of the law. But, in fact, these new investigations reveal an effort to combine racial, religious and ideological profiling with enhanced surveillance technologies. This effort seems to have the ultimate goal of suppressing American dissent, preempting the formation of a widespread anti-war movement and ensuring that the project of broadening the US empire will proceed without disruption.
[1] Bill Quigley, “The Resistance in Obama Time,” Counterpunch, May 24, 2011. [2] Yassir Fazaga et al v. Federal Bureau of Investigation et al, SACV11-00301. See also Washington Post, February 22, 2011. [3] Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2713 (2010). [4] The full text of the document is available online at: http://www.stopfbi.net/2011/5/18/ secret-fbi-documents-reveal-attack-democratic-rights-anti-war-and-international-solidarity.
