Scapegoat: The Hounded — US Constitution Since 9/11

  • Historical Considerations in the Writing of Scapegoat: The Price of Freedom

The Constitution of the United States:

The actions and powers of the three parts of our national or federal government are spelled out in our Constitution of the United States. To re-read the Constitution and its Amendments go to http://constitutioncenter.org/learn/educational-resources/historical-documents/the-constitution-of-the-united-states-pdf or order a pocket-sized copy of the constitution.

Amendment One: At stake regarding the U.S. Constitution, is the question of whether or not questioning the policies and actions of the United States government is prohibited in time of crisis. Does the right to free speech stop when the government proclaims war on something – drugs, terrorists, other countries?

Does Amendment One in the Bill of Rights really mean what it says about not establishing a state religion?  If so, how might being Catholic, Quaker, or Muslim fit in with our stated freedoms?

For an interesting discussion of the arguments used to justify suspicion of those who question U.S. policy and actions, visit:  http://constitutioncenter.org/timeline/flash/cw.html . This National Constitution Center has an interesting look at the history of our balancing act between defending and over-riding the U. S. Constitution during times of crisis or hysteria. http://constitutioncenter.org.

Amendment four talks about the right to be free from warrantless intrusion into our private lives. Do we still believe that should be true? For all citizens? All the time?

These questions have become more and more important since the passing of the Patriot Act in 2001. The question of whether the Patriot Act and the Military Commissions Act can supersede the Bill of Rights is still an active part of our country’s court docket. Definitive decisions roll back and forth on this question.

  1. The Patriot Act:

This act was passed by Congress and signed into law in October 26, 2001 and reauthorized March 2006. Parts of it have been re-authorized since the time of the story, Scapegoat: The Hounded.

Also called “the Act to Unite and Strengthen America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”, The USAPatriot Act, was signed into law on 26 October 2001 and reauthorized on March 9, 2006.

At stake in our story, The Hounded, is the question of the definition of “material support of the enemy”. The Qubadi family sent money to a town in Iraq. Is that material support when terrorists may move in and out of a border area and might be able to use the money they sent? Does the accusing government or the accused person or organization have the burden of proof that the money sent was intended or used for good or evil?

The phone of the Qubadi family and of others in The Hounded has been tapped by the FBI without a warrant. Grandfather Gilbert insists Agent Saurus have a warrant before he requisitions the Evan’s computers. Why is getting a warrant before searching a house, office or tapping a phone important in our system of justice? Should this expectation that a warrant is necessary be waived in times of crisis? Who gets to define crisis?

Another fear for the Qubadi family is the possibility that they will be treated as enemy combatants and lose the right to a jury trial through the use of the Military Commissions Act of 2006. Can the U.S. government declare that they are enemy combatants without having to prove that in court? Can Nasdar and others in the family be sent to Guantanamo Prison without access to lawyers and the U.S. courts on the basis of mere accusation?

 

Download full-text of The Patriot Act at:   http://www.boulderlibrary.org/pdfs/patriot_text.pdf

Download reauthorized Patriot Act at: http://www.boulderlibrary.org/pdfs/patriot_2005_text.pdf

  1. The Military Commissions Act:

For the treatment of so-called enemy combatants in 2006 and after, learn about the Military Commissions Act. The United States Military Commissions Act of 2006 (MCA), also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006.  The MCA’s definition of “unlawful enemy combatant” – a term which, prior to the MCA, had no meaning in U.S. or international law – applies to both citizens and non-citizens. It is broad and carries the possibility for expansion. It gives the President or Defense Secretary a nearly unrestricted authority to declare people “unlawful enemy combatants.”

The MCA also attempts to grant immunity to officials who authorized or carried out the abuse of detainees at Guantánamo, Abu Ghraib, Bagram, and other US detention facilities, granting immunity from prosecution under the War Crimes Act for actions committed after November 1997. It attempts to prohibit civil suits relating to any aspect of detention, treatment or conditions of confinement for non-citizens detained by the US as “enemy combatants” or “awaiting such determination” – even those who were later freed. Nearly half of the men and boys held at Guantanamo Bay have been freed.

You can read the whole bill describing the Military Commissions Act at http://www.gpo.gov/fdsys/pkg/BILLS-109s3930enr/pdf/BILLS-109s3930enr.pdf

  1. Court rulings on sections of the Military Commissions Act:

Here are two examples of rulings on this act.

 

  1. In 2005, the Supreme Court, in a 5-to-3 decision authored by Justice John Paul Stevens, held that neither an act of Congress nor the inherent powers of the Executive laid out in the Constitution expressly authorized the sort of military commission at issue in this case. Absent that express authorization, the commission had to comply with the ordinary laws of the United States and the laws of war. The Geneva Convention, as a part of the ordinary laws of war, could therefore be enforced by the Supreme Court, along with the statutory Uniform Code of Military Justice. Hamdan’s exclusion from parts of his trial that were said to be classified by the military commission violated both of these, and the trial was therefore illegal. Justices Scalia, Thomas, and Alito dissented. Chief Justice John Roberts, who participated in the case while serving on the DC Circuit Court of Appeals, did not take part in the decision. (The preceding information came from: http://www.oyez.org/cases/2000-2009/2005/2005_05_184  a 25 year effort of Chicago-Kent College of Law at Illinois Tech. to expand public access to the Supreme Court. A very helpful project and an interesting website.)
  2. The D.C. Circuit Court of Appeals threw out two of the three convictions for Ali Hamza Ahmad Suliman al-Bahlul, the former media secretary to Osama bin Laden. Al-Bahlul, a native of Yemen, claimed that he wanted to participate in the September 11, 2001, hijackings, but that bin Laden wouldn’t let him because his public relations skills were too valuable.

A military commission had found al-Bahlul guilty of supporting terrorism, solicitation and conspiracy. But the appellate court, in a unanimous decision, invalidated the first two convictions, saying they weren’t considered war crimes prior to the Military Commissions Act of 2006. The court majority also questioned the third conviction. There is “little domestic precedent to support the notion that material support or a sufficiently analogous offense has historically been triable by military commission,” the opinion said. The ruling affirmed an earlier decision by a three-judge panel of the court.

The ruling could mean that other detainees’ convictions could come into question.

(See more at http://www.allgov.com/news/controversies/appeals-court-ruling-challenges-legitimacy-of-military-commissions-for-guantanamo-prisoners-140721?news=853744 )

  1. Court rulings on the Patriot Act:

I provide two counter examples here. If you want to know more, use your search engine to research court findings on Patriot Act. A lot of claims and counter-claims will turn up. It is very interesting to see who makes the claims and why.

 

Example 1. In 2004, a federal court struck down an entire Patriot Act provision that gives the government unchecked authority to issue “National Security Letters” to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. Judge Marrero’s decision enjoins the government from issuing National Security Letters or from enforcing the gag provision.

Following is the history of that 2004 ruling. These rulings took place both before and after the events in the novel Scapegoat: The Hounded. This timeline gives an idea of the workings of government, and of the courts regarding secrecy, security and constitutional rights.

April 2004: ACLU files a lawsuit in the U.S. District Court for the Southern District of New York on behalf of “John Doe.”

September 2004: District court rules that the NSL statute is unconstitutional under the First and Fourth Amendments.

March 2006: With the government appeal of district court’s September 2004 decision pending, Congress amends the NSL statute, remedying some of its problems but worsening others. In particular the statute’s gag provisions were made even more oppressive.

May 2006: The appeals court sends case back to the district court to consider the constitutionality of the amended gag provisions.

September 2007: After ACLU returns to court to challenge the amended gag provision, the district court strikes down the entirety of the NSL provisions of the Patriot Act, ruling that the NSL statute’s gag provisions violate the First Amendment and the principle of separation of powers.

December 2008: The appeals court upholds the district court’s September 2007 decision in part, finding the portions of the statute violate the First Amendment. The appeals court also rules that the government must justify the more than four-year long gag on the “John Doe” NSL recipient in the case.

August 2009: After the government attempts to justify the continuation of the gag on Doe by filing secret documents with the court (which not even Doe’s lawyers had any access to) the court orders the government to partially disclose its secret filing and to release a public summary of its evidence.

October 2009: District court rules that the government can continue to enforce the five-year-old gag order on Doe and that the FBI can continue to suppress an “attachment” to the NSL Doe received.

November 2009: ACLU files motion for reconsideration with respect to the continued suppression of an attachment to the NSL Doe received.

March 2010: Court orders government to release a less-redacted version of attachment to NSL issued to John Doe but rules that the government can continue to suppress certain information about the types of records the FBI demanded – information that would show the FBI’s abuse of the NSL power. In response to court order, government releases less-redacted version of NSL.

August 2010: As a result of a settlement in the case, the FBI lifts the gag on Nick Merrill, the ACLU’s client and the first NSL recipient to challenge the records demand.

Example 2, Court rulings on the Patriot Act: Holder v. Humanitarian Law Project, In June, 2010, the U.S. Supreme Court ruled 6-3 to criminalize speech in Holder v.Humanitarian Law Project, the first case to challenge the Patriot Act before the Supreme Court. The case is also the first to force the defense of the Patriot Act attempts to diminish free speech guarantees in the face of national security claims. Attorneys say that under the Court’s ruling, many groups and individuals providing peaceful advocacy could be prosecuted. President Carter submitted an
amicus brief in the case. Under this decision, President Carter and other advocates of peace training could be prosecuted. President Carter helped train all parties in fair election practices in Lebanon. For more information on this finding, see,  www.commondreams.org/newswire/2010/06/21/supreme-court-criminalizes-speech-ruling-patriot-act-case

The Spanish Train and one accused man: Arún references this case to Xander as an example of why the FBI and Agent Saurus may be searching for a case to bolster their reputation, and what can happen to you if you are Muslim.

Brandon Mayfield is an American attorney in Oregon who is also Muslim. He was mistakenly linked to the bombings of a train in Madrid in 2004. The FBI arrested Mayfield as a material witness in connection with the attacks, and held him for over two weeks. He was not charged. An FBI review later acknowledged serious mistakes in their investigation.

Lawsuits resulted in a formal apology from the U.S. government and a $2 million settlement. An initial ruling declared some provisions of the Patriot Act unconstitutional. The United States government appealed. The ruling was overturned by the Ninth Circuit Court, which said he did not have standing to pursue his Fourth Amendment claim because his injuries already had been substantially redressed by the settlement.

The FBI conducted an internal review of Mayfield’s arrest and detention. The review concluded that although he was not arrested only because of his religious beliefs, those beliefs may have contributed to investigator’s failure to pay attention to the Spanish when they said Mayfield’s prints were not a match.

The judgment of the U.S. court can be read at: http://www.ord.uscourts.gov/index.php?option=com_phocadownload&view=category&download=155%3Aopinion-and-order-in-brandon-mayfield-v-usa-04-cv-1427-aa&id=39%3Anotable-rulings&Itemid=457&lang=en

The mosques in The Hounded are fictional religious buildings and communities. They represent what can happen in times of public fear and turmoil. There are mosques and charitable foundations which have been singled out in ways similar to those in The Hounded.

 

  1. On November 28, 2010, the Salman Alfarisi Islamic Center in Corvallis was bombed. Federal law enforcement authorities arrested Cody Seth Crawford, 24, August 24, 2011, on a federal hate crimes indictment in what they say was a racially motivated arson at a Corvallis mosque. Authorities quickly determined the fire, which burned the office of the mosque, was an arson.

 

  1. The Portland Islamic Center has been under surveillance for several years. For a discussion of the reasons for this, read: http://www.oregonlive.com/portland/index.ssf/2012/06/fbi_actions_have_left_a_portla.html

And also read: http://www.investigativeproject.org/case/414

These articles mention The Portland Seven. This was a group of American Muslims from the Portland, Oregon area, arrested in October 2002 as part of an FBI operation attempting to close down a terrorist cell. The seven attended the Portland Islamic Center. The seven were attempting to join Al Qaeda forces in their fight against the United States military and coalition forces in Afghanistan, or aiding in that attempt. The members of the Portland Seven “were all named in the 15-count superseding indictment that included charges of conspiracy to levy war against the United States, conspiracy to provide material support and resources to al Qaeda, conspiracy to contribute services to al Qaeda and the Taliban, conspiracy to possess and discharge firearms in furtherance of crimes of violence, possessing firearms in furtherance of crimes of violence and money laundering.”

 

  1. The following charitable foundations were targeted by U.S. government as giving support to terrorists because of their charitable work:

Al-Haramain Islamic Foundation (AHIF) of Oregon

Criminal Charges also against AHIF Director Pete Seda

Benevolence International Foundation (BIF)

Global Relief Foundation (GRF)

Goodwill Charitable Organization Inc.

Holy Land Foundation (HLF)

Islamic American Relief Age Agency (IARA

KindHearts for Charitable Humanitarian Development Inc.

Care International Inc.

From 2001 to 2011, these American Muslim charities have been at the center of a troubling attack on their ability to carry out their work. In numerous instances, the U.S. government has infringed on their First Amendment right to free speech and to the religious freedom of Muslim citizens of the U.S. and their belief in giving to charity, known as zakat. In fact, laws passed after the 9/11 attacks and undue scrutiny by the government have significantly impacted the civil liberties of all Americans. But despite this scrutiny, only one American Muslim charity has been convicted of supporting terrorism, and it was not represented at trial.

For an interesting discussion of the charges of materially supporting terrorism, and the gag orders imposed on those who want to support the accused, read the report at: http://www.charityandsecurity.org/system/files/USMuslimCharitiesAndTheWarOnTerror.pdf