2016 ESML – “The Terrorism Label: an Examination of American Criminal Prosecutions”

 
Video & Edited Transcript
Professor Wadie Said
 Transcript No. 468 (October 7, 2016) 


Zeina Azzam: Good afternoon, everyone. It’s my pleasure to welcome you to the Jerusalem Fund’s Annual Edward Said Memorial Lecture. And it’s my honor, on behalf of the Fund’s board of directors and staff, to introduce our distinguished lecturer this year, Wadie Said. My name is Zeina Azzam, and I’m the executive director here. Wadie, we’re so delighted to have you with us today, and that you accepted our invitation to deliver this important lecture.

Before I introduce our distinguished lecturer, I would likely to say a few words about Dr. Edward Said, who is Wadie Said’s father. Edward Said is regarded as one of the most illustrious Palestinian public intellectuals. He wrote more than 20 books and was a passionate advocate for Palestine. Edward Said was an acclaimed literary and music critic and theorist, whose seminal work, Orientalism, influenced generations of academics and scholars who study the Middle East and other non-Western societies. He died in 2003.

We’re all most proud of his ideas and analyses and writings, and, therefore, the Jerusalem Fund wanted to set up an annual event in his memory. We believe he would’ve been very proud and pleased with our choice of Wadie Said to deliver this important lecture in his name.

Wadie Said is professor of law at the University of South Carolina School of Law, where he teaches criminal law, criminal procedure, and human rights law. Before joining the South Carolina faculty, Said represented terrorist suspects as an assistant federal public defender in Tampa, Florida, serving as counsel in United States v. Al-Arian, one of the largest terrorism prosecutions in American history. A graduate of Princeton University and Columbia Law School, he clerked for Chief Justice Charles P. Sifton of the US District Court for the Eastern District of New York. He’s the author of the recently published book, Crimes of Terror: the Legal and Political Implications of Federal Terrorism Prosecutions, which provides a comprehensive legal analysis of the criminal terrorist prosecution in the United States. His scholarship also appears in many prestigious law journals and reviews.

As the Palestine Center’s Edward Said Memorial Lecturer this year, Wadie Said will discuss the issue of terrorism and the ways in which it’s produced and dealt with in the American legal system. Terrorism laws and prosecutions raise essential questions about sacrificing constitutional rights and protections in the name of security. Indeed, Edward Said wrote in the preface of his book, Orientalism, that “our role is to widen the field of discussion, not to set limits in accord with the prevailing authority.” The title of Wadie Said’s talk today is “The Terrorism label: An Examination of American Criminal Prosecutions.” He’ll speak for about 35-40 minutes, after which we’ll open the floor for discussion and questions. So, please join me in welcoming Wadie Said.

Wadie Said: Thank you all very much for being here, and thank you to Zeina for inviting me and for that very generous introduction. Because, while I’ve spoken at several events over the past 13 years in my father’s honor, this is really quite an amazing honor, privilege, for me to give a lecture in his memory. I think my sister gave this lecture a few years ago, but I’m honored to join the list of very impressive speakers, in addition to her, giving this lecture. Although, I think today, I might be saying something a little bit different outside the norm of what you may hear in terms of what you all might be used to in terms of how the law—specifically the criminal law in this country—implicates our concept of what terrorism is, and how it represents a threat (or how the government believes it represents a threat) and how it’s construed.

Having said that, I think I should really note that it’s always a bit of a strange experience when you have to reflect on someone’s intellectual and activist legacy when you’re also that person’s son. Because I’ve also been shaped by my father in a personal capacity, and very much influenced by him, not just in terms of how I think and my belief system, both as an individual but also as it relates to world affairs and matters of public concern—because there is, in my case, I believe, a great deal of overlap between the two spheres. And I hope to make that connection in the words that I’ll offer here today.

My father’s role in merging academic rigor with his political activism and analyses was something I always marveled at, and I think, at the outset, I want to say—and I think you all understand this and know this—he never really shied away from drawing lessons that were relevant in the Middle Eastern context, the Palestinian context, from other situations, other areas of the world. So, for example, something he wrote about, although I think it’s important to re-raise it, is his 1991 trip to South Africa where he met with members of the African National Congress, and he had sessions with Nelson Mandela and Walter Sisulu. And that trip allowed him to draw linkages between the Palestinian struggle and that of South Africans against apartheid. Unfortunately, when he tried to raise those lessons with Palestinian leadership, they were reluctant to embrace them. But, I think, that’s one example among many that demonstrate his vision, his expansive vision, and his understanding of where struggles and occupation lie on the spectrum, and how we can draw support from other struggles in facing injustice.

Back to me. Specifically, I think mostly I really absorbed the idea that one shouldn’t cease in trying to help those who are truly marginalized and ostracized. And I think when I gave some thought in how I wanted to put this into action—I think when I went to law school I had had ideas of being a human rights lawyer, being involved in international human rights. And I think where I struggled was the idea that—I don’t mean to, in any way, put down the work that people in international human rights feel too—but I think there are some structural limitations, or conceptual limitations, and I also think the idea of just writing reports wasn’t something that appealed to me, so I thought to do something a little bit more (what I believe to be) concrete. And that led me to try and work as a public defender. Interestingly, and sadly as well, in the fall of 2003, my father had only been gone—had only since passed away a few days earlier—I had accepted a position as an assistant federal public defender in Tampa, Florida, where I helped defend one of the accused in the prosecution involving the former University of Florida professor, computer science professor Sami Al-Arian, of Palestinian origin and charged with all sorts of things that related to his allegedly being active on behalf of a group called the—or what the government called—the Palestinian Islamic Jihad. The group called themselves the Islamic Jihad Movement in Palestine.

It’s very interesting, by the way, this is a complete aside before I get into the meat of my remarks here—but, I’m not really sure, I want to raise this point just to raise it, I don’t know how important it really is—but, when we think about things, especially when we talk about terrorism, things have to be translated, phrases and terms have to be translated from foreign languages. And I think there are lessons to draw here, in the sense that the government translates things the way it wants, not necessarily how they line of up or how they’re most properly translated into English, for example. And you see things like this—I’m going to talk a little bit about a case involving a fellow whose last name is Abu Ali. And if you read the federal register, one of the case opinions involving him is recorded as United States v. Ali. Now, you wouldn’t have—and I think Americans would probably be rightly aggrieved—if, for example, foreign countries referred to State or People v. Jackson as People v. Jack. It doesn’t make any sense to just clip off whole parts of names. How important that is? I’ll leave it to you. But you see that over and over in my line of work. Translations rendered in funny ways, etc. Again, it’s a small aside, I just raise it to highlight some of the things that come up—some big, some small.

In any event, the decision that I made to become a public defender and that experience which included several years of motion practice plus a 6 month jury trial, which was unusual in the criminal defense business, exposed me to the government’s criminal prosecution regime of individuals they believe were terrorists. And that is a regime that you may have seen over the years, touted as the better alternative to the Guantanamo military tribunal model. Now, what I came to realize rather quickly that that either/or comparison of “terrorists deserve either military tribunals of very few constitutional protections” or, the ‘better alternative,’ as it has been touted, of prosecution in an article 3 federal court. I believe that comparison was false. Just because the former, the military tribunal model was an unprecedented violation of constitutional principles, the other—criminal prosecution in federal court—seemed to me to encroach in more subtle but no less alarming ways on those same kinds of constitutional rights. And it also reminded me of my father’s own legacy and long work in trying to directly confront many of the fallacies at the heart of demonizing impossibly large constructs like “Islam” and “terrorism.” I’ve now learned—I might be a little bit slow on the uptake—I’ve now learned of these new things that—they now call them “scare quotes,” I like that. Especially when you see Islam between quotes, or terrorism, it’s meant to scare you. And often the fear and hysteria associated with what has come to be known, even in the mainstream press, as Islamophobia, that fear and hysteria serve other agendas that seek to—I think this is part of the legacy of my father’s work—these agendas seek to discourage popular participation and critical thinking in a democratic society about what the nature of the threat really is. I think that we face this construct of Islamophobia, with its stated goal to allow the state more liberties to take away our own liberties under the rubric of “fighting terrorism.” And I think we allow the state to do that at our own peril.

Well, I’ll talk a little bit about my work in the federal public defender’s office. That was because it was focused on a terrorism prosecution, but it also kind of gave me a real inkling about what it is that these prosecutions represent. So even in a case that was as large as the Al-Arian prosecution, with many of the laws and practices, like the material support law—and I’ll talk about what that is in a second here—at its heart—I quickly became frustrated. Because if you’re practicing, if you’re making motion, for example, usually—especially if you’re on the defense side—you make a motion, and the judge just denies it because that’s the way the system is kind of setup. And I kept wanting to delve deeper into the issues and continue to argue about them, because I felt there were some deep flaws here, at the heart of the prosecution, its case, its theory of the case, the laws it was using, etc. So that led me to, after leaving the federal public defender’s office, focus on terrorism prosecutions as kind of a study. And that culminated in my book, which Zeina mentioned to you, Crimes of Terror: the Legal and Political Implications of Federal Terrorism Prosecutions. And the goal of the book was to document what I term a kind of terrorist exceptionalism to the normal rules of criminal law and procedure. We see now our criminal justice system, the phenomenon of mass incarceration, the issues of police violence and racial profiling, continue to occupy a very, very important space in the national discussion. And, what I think the book tries to do is to talk about how, under the heading of “fighting terrorism,” we’ve seen the government win some very significant victories and bring in tactics and practices that relax the normal protections a criminal defendant is entitled to in a prosecution. And so here, I would like to just give a few examples of some of the things that we’ve seen that establish this terrorism exceptionalism, and also, I think, when I kind of sum up, essentially allow the government to reach beyond the narrow terrorism context and change our notion of what it is to be in a liberal democratic society. Our notion of freedom and our notion of activism and participation—I don’t think we can underestimate the force of the phenomena and the legal rulings that we witnessed especially in the last 15 years since the September 11, 2001 attacks.

So, the book basically looks at the terrorism prosecution in a kind of linear way, starting from the beginning from when the government decides to initiate an investigation and then tracks getting information from suspects, bringing a prosecution, what laws are used, what happens in the courtroom, and then what happens when someone—as usually occurs, although not always—is convicted and then sentenced and then sent—you probably are not surprised to learn that there are special prison units for people who are convicted of terrorism crimes, even nonviolent ones.

So, starting from there—in beginning an investigation, what we’ve come to learn is that a lot of the investigations of terrorism-related prosecutions begin with the use of an informant. Now here, it’s very important to note, informants are people, in this instance, who have no preexisting knowledge or suspicion of any criminal plot. So, the classic construct in criminal context is the police, the FBI, have knowledge that someone is—they catch someone selling drugs. So they say to him, “Okay, you know what. If you tell us where you bought your drugs from, we will offer you a good deal, and you flip on them.” In that situation, you would term the person who got caught, not as an informant but more as a cooperator, because he was involved in a pre-existing plot.

In the terrorism context, the informant is someone who knows nothing but the government finds them. Often times—we’ve in fact—in the last few days, there was just an article I read about how the FBI is exploiting people at the borders, whose immigration status is in some doubt or limbo, and asking them—they’re usually from certain countries or certain backgrounds—and saying, “Hey, would you mind telling us things you know about what they’re talking about in the mosques that you pray at,” for example.

Okay, so informants have no prior suspicion, no preexisting suspicion that anything is going on, and the FBI take these people, and they send them to mosques, usually, or to look for people. Usually, the informant plays a pretty active role. And that’s a kind of a euphemism—one would say, concocts the plot, and provides the means to carry it out. And, we’ve seen that the number of informants that the FBI have employed—one investigative journalist looked into it and came up with a figure of about 15,000 in the post-September 11th era are employed as, or engaged as, informants in the FBI’s books, as opposed to about 6,000 beforehand. We also see part of what the terrorism, criminal terrorism, prosecution construct also engenders is a sort of knockoff effect in other areas of law enforcement.

So now, there was another article a few days ago in The Intercept about how the DEA, the Drug Enforcement Agency, employs some 18,000 informants. In addition, that also fuels related practices—like use of undercover police. Now, the police have always had—at least in the modern era—undercovers, who go out and investigate activity. But on the other hand, we’ve now seen—I think this is kind of related to the terrorism construct—we now see undercover police popping up in areas like the small business administration has an undercover police wing, OK. The Supreme Court, as you know, it’s been documented that they send out their own undercover Supreme Court police—I didn’t know that there were Supreme Court Police, but there are. They go out and they spy on protests in front of the Supreme Court. So you can trace a line from this sort of idea that there is a threat out there, and the government needs to send people out to kind of uncover it and dig it up. You’ve probably also heard phrases bandied about, like radicalization that needs to be countered or violent extremism that needs to be countered, countering violent extremism.  So the government has invested heavily in these theories that the threat is out there lurking. And, its identity, I think we sort of understand what they believe the identity to be, but we’ll discuss it a little bit more in a second—or, I’ll discuss it a little bit more in a second. So, that’s how the investigation gets started. Now what happens if someone is nabbed? We’ve seen, also, criminal justice protections kind of weakened as well. The one that I want to talk about here as we proceed along the line from investigation to interrogating a suspect is that of there is an exception to the—we all know I think—the Miranda warnings that the police are supposed to give you, you know, “you have the right to remain silent.”

Well, in the wake of the 2009, unfortunately named underwear bombing episode where a fellow from Nigeria tried to detonate a bomb that he had hidden in his underwear, there was a lot of hand wringing here in Washington D.C. in Congress and law enforcement circles about the idea that if he were given the normal warnings that a normal criminal might get about his right to remain silent—well he might conceal more violent activity. Which is, I think, let’s be fair—I’ll try to be fair—I think, conceptually, that is a concern that law enforcement has. It’s legitimate, right? The FBI then went to Congress and said “OK, well, write us a law that gives us a Miranda exception.” Congress didn’t do that. So, the FBI wrote it’s own memo, where they talked about in certain cases where an individual has knowledge of an active terrorist plot, the FBI is allowed to interrogate that person without giving them warning. Now the question is, “How does the FBI know that?” You know, that’s the sort of the Old Harry problem—remember the movie Dirty Harry. The idea that the guy knows that the criminal has someone hidden, and if Dirty Harry goes in and roughs them up a little bit, they’ll give it up. I don’t know if that hypothetical always works, but let’s assume that it does, and let’s assume that’s valid because I think there are situations where we can imagine where dangerous people would want to do dangerous acts. That’s fair. This issue kind of came to the fore in the public consciousness in the wake of the 2013 Boston Marathon bombings.

Now, the exception to the Miranda warnings is I think an important topic to discuss and debate and the FBI articulated its point and granted itself an exception. The problem was is that they not only did they stop—they didn’t stop there, they went on to another situation where they in certain instances  where they feel that it would be of intelligence value to continue to interrogate someone without giving them Miranda warnings, the FBI says that they can do that and who makes that decision? Not a court. An FBI supervisory agent, and that’s not something that’s reviewable. So, we went from a situation that’s of public concern which was an issue that people I think have a legitimate interest in being safe and the FBI have I think a strong case, but they didn’t stop there. They tacked on something else, where individuals who even though they didn’t pose any risk of future violence because there’s intelligence value in interrogating them the FBI can proceed to go ahead and the problem with that is, if you take someone that you pick up for example—that the government picks up between Somalia and Yemen, for example—and holds them for two months at sea—and cases like this have happened—holds them for two months on a naval war ship at sea and interrogates them, and gets all sorts of information, and then decides you know what actually you have the right to remain silent you don’t have to say anything, nothing you say can be used against you. But you know what, you’ve told us all this stuff. Why don’t you just go ahead and say it again? I mean, are they going to actually say, “No, I’m not going to admit to it this time”?  It’s not a realistic construct.  Even more alarming has been the idea that individuals who have been interrogated abroad by foreign intelligence agencies, have had their confessions admitted here, in the United States, criminal prosecution. So, there are two examples. Maybe because of time related issues, I’ll only give one.

Many of you, or maybe some of you, have heard of the case of a fellow by the name of Ahmed Abu Ali who grew up in this area who was picked up in Saudi Arabia by the secret police there and interrogated. He ended up in this country after a lot of legal wrangling, but the heart of this case centered on this confession that he made. Now, he argued that he had been tortured. His interrogators in Saudi Arabia testified via video link from Saudi Arabia and they said stuff like: “Yeah, we abuse our detainees. Yeah, I once tied a guy to a tree. Yeah I’ve beaten guys, but I didn’t in this case.” And, his confession was admitted and he was subsequently convicted of the charges based on a standard known as the voluntary confessions test.  Now, there’s also a case of a Palestinian fellow by the name of Muhammed, Palestinian American, Muhammed Salah who had a similar thing happen to him while he was in Israeli custody, and his confession was admitted. Now, I don’t know that I’m the best person to be making arguments about American exceptionalism and the sort of pristine nature of the criminal justice system, but I can say that confessions in American law are guided by pretty strict standards, one of which is people are entitled to at least consult with a lawyer, if they want. They can waive that right if they want, but when you’re held, for example like Ahmed Abu Ali  was, for months, where you saw the consular official, you know, a couple of times, didn’t have access to a lawyer, you’re being held incognito, I don’t see how that can possibly be a voluntary confession. Yet, that precedent exists. And the terrorism prosecution has brought it to exist.

I mentioned the material support law. The key law at the heart of these prosecutions is something called the ban on providing material support to foreign terrorist organizations, and its mild confusions although—or it need a little bit of explanation—because there are several steps involved. Basically in the mid 90’s, Congress became concerned about the idea that, in this country, there were terrorist groups that were raising money under the cover of humanitarian activity to do violence; and so there needed to be a law that banned providing material support to foreign terrorist groups—even if those groups, legitimately, have charitable activities or humanitarian activities that they—functions that they perform. The theory behind it is twofold. One is, congress articulated it, or made a finding, that any activity a terrorist group carries out is so tainted. Any kind of interaction with a terrorist group is so tainted by that group’s violent activity that it becomes de facto support for terrorism. That’s one finding that Congress made. The other is that money is fungible, money for widows and orphans, charity, freeze up money for bombs and weapons. And so, Congress passed a law making it a crime to provide material support to a designated foreign terrorist organization. Now, to make the law active there has to be a list of foreign terrorist organizations, and that’s done by secretary states. The secretary of state designates a number of groups. There are now about sixty of these groups. There are now three prongs to this: The group has to be foreign. It has to engage in terrorism or terrorist activity and that terrorist activity has to harm United States nationals or the national security of the United States, which is defined quite expansively, including foreign interest relations of the United States. Now, that third prong about the terrorist activity harming US interest is not something that can be challenged in court. In addition, there are no corresponding domestic terrorist lists. There are only foreign terrorist organizations on that list. As I mentioned, there are sixty groups on the list. Now, I know I’ve talked a little bit about various aspects of terrorism prosecutions. When we come to the title of the talk and the sort of terrorism label, I think we start to get an idea of who the government believes to be the ‘terrorist enemy’ so to speak. So there are sixty groups on the list, forty-eight of which are Arab or Muslim in makeup or orientation. For the purposes of where we are today, seven of those groups are Palestinian. Thirty-five—in the more kind-of-modern formulation over the last fifteen years—thirty-five out of the thirty-eight groups that have been listed since September 11th, 2001, are what you might call Islamist groups. Now, the interesting thing from a criminal law point is that the law itself criminalizes support.

Now, usually when you look at criminal laws, the crime is evident. Someone assaulted someone. Someone killed someone. Someone raped someone. There is sort of—what we call—a substantive crime. Here, the substantive crime is the support, or what you might call in the criminal terms, aiding and abetting is the actual substantive crime. On sort of a conceptual criminal law theory level, this is an interesting law. Now, if you violate this law, if someone is charged and then convicted of providing support to a foreign terrorist organization you can be in prison for up to twenty years—life, in the case of someone dying. But, there is no requirement that the government link the material support to any act of violence—just that there was material support provided to a foreign terrorist organization, and you’ve seen the more recent cases. I don’t know how many of you follow these things—I do. My email inbox gets updates every few weeks. The material support law has been used over the last couple of years, year and a half or so, where individuals who are looking to go to Syria are charged with providing material support in the form of what is known as personnel—themselves—to go fight in Syria on behalf of this organization known as the Islamic State, or Da’esh, or the Islamic State in Syria and the Levant. etc. The press reports in June of this year said there had been about ninety cases—ninety prosecutions—and you read about them all the time.

So, that’s the first clue that material support is not just money. It can be yourself; you can provide yourself as material support, if you want to go fight on behalf of a terrorist organization. And, if that were all we were discussing maybe we would complain about certain inequities at the heart of the practice, but here’s where the prosecution material support law starts to go to impact everyone’s constitutional right more directly. So first of all, it’s not just money. In 2010 the Supreme Court decided, in a case called Holder v. Humanitarian Law Project, where it said that material support in the form of speech can be banned. So, you can be prosecuted for providing material support in the form of what would otherwise be first amendment protected speech. That case dealt with a situation where individuals wanted to help the Kurdistan Worker’s Party, also known as the PKK, and the Liberation tigers of Tamil Eelam, also known as the Tamil Tigers. They were US citizens who wanted to provide support to these groups; and, they said, “You know what? Forget money. All we want to do is advise these groups on how to use international law to peacefully advocate for solutions to their conflicts with the Turkish government and the Sri Lankan government.” The Supreme Court said, “No. People providing material support in the form of speech can be prosecuted for violating this law.” So, that’s something that I don’t think we saw coming in 1996 when the law was passed: the idea that material support can become in the form of speech. One of the hypotheticals that one of the litigants in this case mooted was, “What if they wanted to teach these groups, give them advice in terms of how to peacefully advocate?,” and they actually tied it to steering them away from violence—making these groups less violent. No, the government can prosecute.

The second example comes from of what is material support, and the dangerous expansion of this concept comes from a case—many of you might be familiar with. That’s the prosecution of the former directors and executives of the formerly largest Muslim charity in the United States, the Holy Land Organization for Relief and Development, based in a Dallas suburb. There, the government made an interesting point. So, remember the money is fungible argument. There, the government initially charged these men and said that they were providing direct aid, material support in the form of funding, to the banned foreign terrorist organization under the list, Hamas, the Palestinian group Hamas.

They were doing it by appealing to religious observant Muslims’ sense of charitable obligation in the form of giving zakat. So, they would give money to these, what the prosecution called “zakat committees”, operating in the West Bank and Gaza, which were the government-charged front groups for the Hamas organization. Now again, we can think about it in terms of the Middle Eastern conflict, the Palestinian cause, but it doesn’t stop there, and here’s what I mean: when the case actually went to the trial, the government backed off that theory. They didn’t say money was fungible. What they said was, “These groups, they’re not part of Hamas; they’re not front groups from Hamas; we admit that. But, in the public consciousness in the West Bank and Gaza, they are associated with the Hamas movement; and so, Hamas derives legitimacy from these groups receiving support.” So, the Holy Land Foundation was providing material support to a banned foreign terrorist organization by enhancing the group’s legitimacy through the provision of unquestionable charity. The government never questioned that the money was to actual charity. So, here we have a new concept: material support in the form of legitimacy—a far cry from money is fungible.

The Holy Land Foundation case is a particularly thorny one and a particularly difficult one to grapple with because in addition to this expansive notion of support for terrorism and material support other innovations took place. So, for example, what is it—because here we’re thinking about what does the terrorism label really mean? And, I think we’ll try to answer that question in a second. At the Holy Land foundation trial, the government was permitted to use an Israeli security officer and have him testify as an expert witness. Ok, so please forgive me. I’m not trying to be pedantic. I don’t know how many of you are familiar with the rules of evidence in federal cases, but a normal witness who comes up and says, “Yeah, I was standing at the corner of, you know, 18th Street and Broadway and I saw a guy, you know, pull out a gun and fire two shots. Ok, he was wearing black jeans and a blue T-shirt.”

That’s a fact witness. They’re brought on to give facts. They are not allowed to give their opinion as to what happened. An expert witness on the other hand is allowed to give their opinion. They’re allowed to draw conclusions from the material. So, in the Holy Land Foundation case the government was allowed to use their opinion it sought to have admitted, as an expert, and Israeli security agent who testified anonymously. What did this agent testify anonymously to? The fact that the zakat committees were linked to Hamas.

So, the whole theory of the case hinged on this security agent who was testifying under a pseudonym. Now, if you know anything about expert witnesses you also know that one of the main things that someone challenging an expert witness can do is get up there and say, “Ok you said this. You wrote this. You argued this, but so-and-so disagrees with you. Aren’t you wrong?” And try to make that point to the jury; but if a person’s identity isn’t known, how can you do that? Even more amazing—and this is a point that shocks even mainstream legal commentators, so people who have no interest in terrorism prosecutions, the Palestinian cause, the Middle East whatever—was the idea that there was a Supreme Court case precedent that dealt with anonymous witnesses and the trial court in Dallas ignored it, the court of appeals, the 5th circuit Court of Appeals brushed over the issue.

What is an anonymous status? What does an anonymous witness mean? The anonymous status sends a message to the jury it says, “These defendants are so dangerous. They can’t know who this guy is because their agents will threaten them.”  And, as I mentioned, it also allows no inquiry as to the witness’s background. And that’s where we are.

In the years and the decades past, and I think my father—kind of bringing it back to his thoughts—wrote eloquently and trenchantly about the issue of the legitimacy of resistance to military occupation. That’s at the heart of the Palestinian struggle, and that’s where the debate was. But, now in this day and age were in a different sphere. The post 9/11 construction of the terrorist enemy doesn’t allow for such discussions. Terrorism and its expressive dimensions in the popular conscious—we’re talking about groups like the Al Qaeda phenomenon or the ISIS phenomenon—once you’re associated with a group like that, you’re tainted beyond all hope, even if you are many degrees removed.

These stateless groups that don’t have a popular mandate and use barbaric methods to fight basically guarantee that, over here, we cannot think rationally about things like foreign policy, or closer to home, criminal prosecutions and the problems at the heart of the criminal justice system. I mean, we have, now, the movement for Black Lives and Black Lives Matter movement and related protests and upheavals confronting police violence and mass incarceration directly. But, when we think about in terms of this new—and forgive me if this sounds hyperbolic—obsession with terrorism, it allows the government to retain many of the tactics that are being challenged in the domestic sphere and have them stay viable and alive to maybe come back and haunt us in another day. This is something, I think, we need to understand and confront on its own terms, on our own terms, and I hope, in my remarks, that I’ve been faithful to my father’s legacy in continuing to do so. Ok, I’ll stop there, so thank you.