CM

In a sense, yes, but terrorism prosecutions have changed the landscape quite dramatically. We now have new laws, new investigatory tactics, relaxed evidentiary rules, a special sentencing enhancement, and even a separate prison experience for people convicted of terrorism crimes.

The problem of course resides in the fact that many of the convictions are for supporting FTOs in ways that we don’t think of as necessarily related to terrorism, and that informants have played an outsized role in convicting individuals who had no previous ties to any dangerous groups, but just happened to be targeted and pressured because they were Muslim.

Certain of these prosecutions call into question basic rights we associate with the criminal process in the United States. Take the Omar Abu Ali case. Here was a US citizen tortured in Saudi Arabia by the secret police, reportedly at the behest of the American government. He was held for weeks incommunicado and without access to counsel.

But the US district court admitted his confession to terrorism charges because it felt he gave it “voluntarily.” It’s an incredibly dangerous precedent to have in US law. While there isn’t a rash of cases like this, where an American citizen is tortured abroad and then has the statements he made there admitted here in a criminal prosecution, this is the dominant pattern, precedents that are being stockpiled for later.

Another big issue is snitches, informants. In the ordinary criminal context, this is something that a lot of people were beginning to criticize — academics, the popular press. Even Congress felt the need to regulate law enforcement’s use of informants, so this was a tactic coming under some scrutiny.

But terrorism has supplied the perfect “gateway drug” to expand and re-legitimize informants and undercover policing in varied contexts, none of which have anything to do with terrorism. Now the Small Business Administration uses undercover police, so does the Supreme Court. I don’t know whether we have any of this without the “terrorism moment” that we’ve had now for a decade and a half.

Federal agencies like the DEA are now emboldened to set up things like stash house stings — where informants tell criminal targets that they know of a house or apartment that contain large amounts of money and drugs. The targets then go, usually heavily armed, to the address in question, only to find even more heavily armed federal agents waiting to arrest them there. I don’t think you’d have this kind of out-and-out sting stuff without terrorism to cover for it.

And it’s not just informants — it’s also bringing back political spying, which had been tamped down a bit with the Pike and Church commissions, with the Handschu agreement in the city of New York.

Now, New York City has just recently agreed to new regulations on political spying, which is a very positive development in light of how pervasive and overreaching its surveillance of Muslims was, but what I fear is that any new crisis or attack could see the same sweeping tactics return. After all, political spying was also entirely fruitless, with an NYPD official admitting in a sworn deposition that the city’s surveillance of its Muslim communities did not lead to one successful prosecution.

The main point is these precedents are now out there to be used when the government wants to — they’re racking up precedents to deploy later.