All Muslims are not Radical Fundamentalist - a look at Hate Crimes
While we learn about radical Islamic groups, we must be cautious not to lump the good with the bad. You must be careful to distinguish between "radical" or "fundamentalist" Islamic groups versus law abiding religious Muslims. It should be noted here that "whether secular or religious, Muslims are associated with a majority of suicide terrorist attacks. However, Muslims are not especially likely to commit suicide. If anything, there are strong data that suggest Islam reduces the likelihood of suicide. Suicide rates in Muslim societies are among the lowest in the world, significantly below those in Christian and even Jewish societies." 17 In the documentary film Divided We Fall: Americans in the Aftermath, a student of Islamic decent embarks upon a journey to tell the stories of many American Muslims who have been victims of hate crimes after 9-11. If we treat all members of one group in a hateful manner because of a few, this mistreatment is discriminatory and unfair. All Muslims should not be racially profiled as terrorist simply because of how they look. This is the same profiling that other minority groups still fight against in American society today.
The FBI is responsible for keeping the statistics on hate crimes. A hate crime is defined as:
"A criminal offense committed against a person, property or society which is
motivated, in whole or in part, by the offender's bias against a race, religion,
disability, sexual orientation, or ethnicity/national origin." 18
According to the FBI, in 2006, 2,105 law enforcement agencies reported 7,722 hate crime incidents involving 9,080 offenses. There were 7,720 single-bias incidents that involved 9,076 offenses, 9,642 victims and 7,324 offenders. (See chart in Appendix D)
Terrorism and the Criminal Justice System
The criminal justice system is comprised of law enforcement, courts and corrections. Each entity intertwines with the other. When a crime is committed, law enforcement or police conduct an investigation about the alleged offense. They are responsible for arrest, booking, investigation and initial criminal charge(s) against the suspect. Once the suspect has been charged, they will be brought before a magistrate or judge for an initial appearance in court. At this time, the defendant will be formally charged and allowed to enter a plea of guilty or not guilty. If a person pleads guilty, they bypass the trial stage of the criminal justice process and go to sentencing. If the person pleads not guilty, the case is sent for preliminary hearing. During preliminary hearing, evidence is brought before a judge or magistrate to show probable cause that the defendant in all likeliness committed a criminal offense and should stand trial. If the judge or magistrate finds that there is enough evidence for trial, this sets the stage for the trial process and the case will be moved for pretrial hearings, trial and ultimately sentencing if the person is found guilty of the charge. If a person is indicted on a criminal charge, meaning a Grand Jury has determined there is probable cause to believe the defendant should stand trial, the defendant will be set for pretrial hearings and trial without having a preliminary hearing. Upon ending the trial, the defendant may be released if the jury or judge find the defendant not guilty or remanded to the custody of corrections officials if found guilty. If the defendant is found guilty, he or she will enter into corrections. (During this time, the defendant may also file an appeal to a higher court if unsatisfied with the results of their trial). Corrections would include probation, community service, jail, prison or death row. The Department of Corrections is responsible for supervision of the inmate until release from corrections.
Specific provisions related to the criminal justice system are provided in the United States Constitution. The 4 th, 5 th, 6 th, 8 th and 14 th Amendments each sets forth fairness of law for the accused as it relates to citizens being protected from search and seizure without a search warrant, excessive bail, habeas corpus, the right to a speedy trial, an impartial jury, or any denial of due process under the law. (See U.S. Constitution for specific reference). When dealing with terrorism cases, each area of the U. S. Constitution comes into play the same way it does in everyday criminal cases. What is different is that terrorist acts are viewed as a national security violation when ordinary criminal violations of law are handled by local, state and federal law enforcement. With terrorism, police are expected to retrieve intelligence. Criminals engage in crime for economic gain or psychological gratification. Terrorists are political actors using crime to strike their enemies. 19 In detecting terrorist activity causes the law enforcement officer to deal with criminal behavior in a different manner than traditional crime. Law enforcement officers may find themselves seeking to obtain information on a terrorist organization that leads to no criminal violation of the law. This is different from how law enforcement handles criminal offense. Usually, a crime occurs and law enforcement responds. This is considered crime control. Even crime prevention would not fall under this category, because crime prevention is social control, like large crowds, traffic flow, etc. With terrorism, law enforcement must gather intelligence to see if a plot is being hatched. This presents a problem where ordinary citizens are placed in a position to be under the microscope of law enforcement when they may not be involved in any terrorist activity. Such is the case with the recent warrantless wiretaps authorized by the President against ordinary citizens. The question to be answered is does local and state law enforcement agencies play a specific part in protecting America from terrorist the same way federal and national law enforcement is designed and permitted to protect citizens?
The 1993 World Trade Center Bombing Trial
Prior to the September 11, 2001 attacks on the World Trade Center the Twin Towers was the target for terrorist on February 26, 1993. This was the first time such an attack had occurred on American soil. Just before 12:18 p.m. employees and people who came and left the WTC experienced a normal business day. At 12:18 p.m. a bomb detonated beneath the building in the parking garage area. Six people were killed and over 1,000 people were injured. Emergency responders and law enforcement investigators from the FBI, AFT and local law enforcement began their investigation into the cause of the explosion. The duty of law enforcement is to preserve the crime scene and retrieve evidence for ultimate prosecution of the offenders. At the time of the blast, investigators did not immediately know that the bombing was an act of terrorism. Through the carnage, investigators located part of a van that yielded an identification that later showed it belonged to a Ryder Rental truck. The truck was rented to Mohammad Salameh who had reported the truck stolen. He had called the rental company to retrieve his deposit for the truck. Investigators arranged to have Salameh come in to the rental company, thinking he would receive his deposit. Instead, an undercover agent posed as a representative to return Salameh's deposit. Salameh was later arrested. Eventually several other suspects were arrested. Ahmad Ajai was already in custody on the day of the bombing, but had what is known as a "terrorist kit" in his possession. This kit included notes on explosives, manuals and formulas for bombs manufacturing, videotapes on terrorist activity against the United States and fraudulent identification. Nidal Ayyad was a chemist who was responsible for ordering chemical products to develop the bomb, and Mahmoud Abouhalima had "smokeless gun powder." It was also discovered that Salameh also rented a storage unit for the products to be housed. All four suspects were ultimately arrested for the bombings. Two additional terrorist were at large. Ramzi Yousef, who was labeled as the mastermind and plotted with Ajai in Afghanistan to bomb the WTC, fled to the Middle East. He was later arrested and tried in a separate trial.
The 1993 case was tried by prosecutors Gilmore Childers and Henry DePippo in the Federal District Court in New York City, New York. There were no eyewitnesses to the bombing. All the evidence in the case was circumstantial. The defendants were charged with conspiracy to commit a terrorist act against the United States. The defendants stood trial as co-defendants. A Motion to Severe was denied by Judge Duffy, who ruled over the trial. There was talk of a chemical agent combusting in the bomb, but that was not proven in trial and there was controversy around the FBI chemist lying about urea nitrate being found at the scene. One of the challenges for the defense lawyers was coordination of the courtroom objections, cross-examinations and case strategies. It was a delicate walk to avoid one defense attorney saying something that would incriminate another defendant. Another challenge for defense attorneys is that they did not fully understand the Islamic culture and the ways of the Muslim religion. Communicating in English was less of a problem because of court interpreters were present to translate and because these defendants had been in (and out) the United States prior to this incident. In reading accounts from defense attorneys representing the defendants, I was impressed to read that the defendants, not American citizens, were eager to engage in the American judicial process. It is ironic that they chose to target an American landmark, but worked to assist their defense counselors in their defense of the criminal charges against them. No defendant testified in the trial on their own behalf. It speaks volumes to the American judicial process in that these defendants chose to kill on American soil would receive due process of law on American soil, when if they had committed this criminal offense in their own countries, they would not have had the benefit of a trial or due process of law.
When I read the comments by the mastermind of the 1993 WTC bomber Ramzi Yousef, "I am a terrorist and I am proud of it" I thought how inhumane. The sad reality is that Yousef is representative of many more terrorists who could care less about wiping out scores of people for their cause. Yousef was born in Pakistan and his real name is Abdul Basit Karim. He was known by Interpol (international police agency) as a Muslim radical terrorist. 20 He is connected to terrorist organizations in Afghanistan. When he arrived in the United States he told agents he wanted asylum from Kuwaiti guerrilla organization. This story was a lie. The agents allowed him into the United States. (Remember that in 1993 the guidelines to allow foreigners into America were not as strict as they are today. It was much easier to get a visa or to come into the United States). Yousef made contact with the other members in his organization such as Abouhelima, and eventually became roommates with Salameh. He was responsible for organizing the players in the bombing. He wanted to bomb the WTC because of United States support of Israel. He felt it was the only viable response to both countries policies toward the Palestinians and people in other Muslin countries. "This is the only language which you understand," Mr. Yousef said. "It is very painful to innocent people and very painful for anyone to lose a close relative or a friend, but it was necessary. This is what it takes to make you feel the pain which you are causing to other people." 21 This dialogue is chilling, yet telling. The terrorists that flew planes into the WTC on 9-11, no doubt, had the same sentiments of Yousef. Mr. Yousef was apprehended, tried and convicted of masterminding this horrific terrorist event. Yousef, like the other defendant in the first trial, did not testify on his behalf. Yousef, along with the other five defendants were sentenced to 240 years in prison by Judge Duffy. He calculated the sentence by figuring the life expectancy of each of the six people killed in the bombing and subtracting the number of years left in their lives. 22 There were no great or unusual twists in the case. It was pretty much cut and dry. The case was won (and loss by the defense) on good and thorough work by the criminal justice system, i.e. law enforcement officers, trial attorneys, defense attorneys, the judge, jury and now corrections. The criminal justice system worked. With the current Patriot Act, the 1993 arrest, trial and convictions were conducted without laws that infringed upon the civil liberties of American citizens. I conclude that many of the provision created, and now stand as law, could potentially violate such civil liberties. The 1993 WTC bombing case serves as a model that terrorist can participate in the American judicial system and receive a fair trial.
USA Patriot Act
USA PATRIOT Act (is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) is legislation enacted as a direct response to the September 11 th attacks. The purpose of the Act was to give criminal justice agencies greater flexibility in counterterrorism measures. This Act is controversial because citizens feel their civil liberties are diminished, because many of the provisions provided in the United State Constitution are reduced. Supporters for the Act say it will help to ensure greater protection from terrorist activity. The question is why was it necessary to enact the Patriot Act when the criminal justice system worked to convict the culprits in 1993. This is not to say that the criminal justice system was perfect prior to 9-11, but an overreaction by the President and Congress to give greater authority to law enforcement may have been premature.
There are ten sections in the Act. Several sections are specifically related to the criminal justice system. The Act is designed to enhance domestic security, improve surveillance, stop terrorism finances, better protect U. S. borders, compensate the families of public safety officers killed during a terrorist attack, expand the Regional Information Sharing Network (RISS) which is a nationwide law enforcement information network, and to strengthen criminal laws related to terrorism. One very controversial section (Title II) deals with the improvement of surveillance. This title grants authority to federal law enforcement agencies to intercept communication about terrorism, allows searches of computers, allows intelligence agencies to share information with criminal justice agencies, explains procedures for warrants, creates new definition of intelligence, allows for roving wiretaps (where the person is targeted rather than a land phone, Blackberry, cell phone, etc), and provides for expanding intelligence gathering. 23 This is important because none of these new intelligence gathering techniques were in place in 1993 during the investigative phase or trial process of the 1993 WTC bombing case. There was no Patriot Act and the six defendants were apprehended through aggressive law enforcement measure to bring those who committed the bombing to justice. Attorney General Janet Reno poured a lot of manpower into finding these terrorist and prosecuting them. The measures used by the investigators for the 1993 case worked! The necessary authority to wiretap using the approved review of a magistrate for such tapping worked! Locating and apprehending Ramzi Yousef and Eyad Ismoil who helped load the bomb into the truck in 1993 both were brought back from Middle Eastern countries, tried and convicted. The criminal justice system worked! Each defendant enjoyed due process of law (although several of the defense attorneys felt some things that the judge said in his charge to the jury prior to deliberation and some ruling were unfair, they believed in the judicial process). Robert E. Precht who was the defense attorney for Mohammad Salameh in the 1993 WTC bombing trial said it best, "It especially seems premature to give up on the criminal justice system when there is no evidence that the system is unable to handle terrorism cases. The 1993 Trade Center trial was swift, and it did not disclose government secrets. While I believe the trial was unfair, the fault was not that the system lacked safeguards. Rather, the participants failed to use them…. the jury trial system is premised on the idea of impartiality, a concept alien to military tribunals, which lack any safe guards for insuring it. 24 The one thing that was not in place at the time these defendants were charged was the death penalty for terrorist act, but was broadly expanded after 1994. Each of the defendants in 1993 WTC bombing case received life sentences of 240 years. For further information on the USA Patriot Act 2001, you can retrieve a copy at: http://fl1.findlaw.com/news.findlaw.com/cnn/docs/terrorism/hr3162.pdf. One question you can discuss with your class is what do you think the Framers meant when they gave the President power to use in protection of the states? Do you think they would approve of the government listening in on the American people's conversations without a search warrant in order to detect terrorist activity? Is this a violation of the First Amendment rights of the people to speak freely? You can locate many news articles online about "warrantless wiretaps" used on American citizens that were secretly authorized by the President.
Boumediene, et al. v. Bush - U.S. Supreme Court Decision, June 2008
What impact does the "war on terror" have on the America judicial system? Because of the "war on terror," there is a new paradigm in effect. This shift appears to be from historical or traditional jurisprudence on American soil to that of a foreign land, specifically, Cuba. The most recent case that the United States Supreme Court had to make a ruling on was Boumediene, et al. v. Bush. Lakhdar Boumediene and thirty-six others held at Guantanamo filed habeas corpus petitions in federal courts challenging their detention. Boumediene is one of six men born in Algeria who were arrested in Bosnia in October 2001, on suspicion of planning an attack on the US embassy there. 25 Many of these individuals have been detained for as long as six years. The American criminal justice process would include a suspect that is arrested to be read their Miranda Rights. Habeas corpus requires a person to be brought before a court to be formally charged with a criminal violation of law and to be allowed to challenge such violation. In the Boumediene case, because the detainees are considered enemy combatants, 26 no such process occurred. The other question here is, are these enemy combatants POWs? Under traditional war guidelines, as set forth in the Geneva Convention, they are not. They are not fighting as an organized force with uniforms and not under the banner of a specific country. Many of these enemy combatants were picked up in the middle of a war in Afghanistan, and other places away from their homes. Many contend that they are not members of a terrorist organization such as Al Qaeda or the Taliban. They are non citizens of the United States, and have been detained at the naval base in Guantanamo Bay, Cuba without having seen a lawyer or even knowing the reasons for being detained. They also have no right to a trial.
Prior to the Boumediene case, the Supreme Court ruled on the 2006 case of Hamdan v. Bush. In a 5-4 majority decision, the court ruled that no military commission can try Hamdan, who is the former aid to Osama Bin Laden. The issue in the case dealt with this detainee receiving a court hearing by a military commission. The problem was that the military commission did not give the detainees a presumption of innocence or guarantee a public trial. 27 American criminal justice is an adversarial process whereby in a court of law, the accused have the right to an attorney, the right to face their accusers and all benefit of fairness as set forth under the United States Constitution including rules of evidence and trial court procedures. After the 2006 Hamdan decision, Congress initiated the military commission called Combatant Status Review Tribunals (CSRTs). "These tribunals complied with only a minimal description of what due process required. The Detainees were provided with special legal "representatives" appointed by the administration rather than lawyers of their choice. They were not allowed to confront government witnesses, they could call only those witnesses the government decided could be produced "reasonably," hearsay evidence was allowed against them, the government's factual claims were to be presumed correct unless rebutted." 28 Justice Stevens in the majority opinion concluded "Common Article 3 of the Geneva Convention, a provision that guarantees a "minimum" protection for detainees applies to the war against Al-Qaeda, and is thus part of the "law of war.' In the present case, however, the court ruled that the military commission was unsatisfactory for due process of law for the detainees.
President Bush made a decision to house enemy combatants in the "war on terror" at Guantanamo Bay, Cuba. To date, each of his presidential orders pertaining to detainees have been struck down by the high court. In a 5-4 ruling in favor of Boumediene, et al. (liberal justices as the majority), the Court said that aliens detained as combatants in Guantanamo have a constitutional right to challenge their detention in American courts. This means the detainees now have the same rights in a foreign territory as someone living on American soil. This ruling was unprecedented. Never before has foreign aliens enjoyed the same rights of those imprisoned within the United States. The Boumediene decision was divisive for the American people. Many Americans felt this decision would allow terrorists to be released so they could return to the battlefields in the Middle East, and ultimately terrorize or harm innocent American citizens again. Liberal opinions on this decision feel that in a democracy, it is unfair to indefinitely keep someone in custody without the person being charged with a crime. The right to constitutional habeas corpus should always be extended to a person that has been taken into custody whether on American soil as an American citizen, or in this case, a non citizen of the United States being held as a enemy combatant in Guantanamo Bay, Cuba.
Terrorism Novels and Court Documents
Terrorist by John Updike: In a previous seminar "Crime Fiction" at the Yale National Institute, I learned the use of fiction to teach students. This fictional book by Updike tells the story of a young man, Ahmad Ashmawy who is troubled. He experiences marginality when living between two cultures. Ahmad, whose mother is American Irish by ancestry and his father is of Egyptian ancestry, attends the local mosque that he finds to be just as contradictory as the predominant African-Americans and Jews he live around in Trenton, New Jersey. Ahmad is an outcast at school. He feels at home nowhere! The plot is set after 9-11 and Ahmad identifies with the terrorists. He ultimately embarks upon the quest to become a terrorist.
The Terrorist Trial of the 1993 Bombing of the World Trade Center by Michael J. Pellowski.: This book lays out the hunt for the killers of the 1993 WTC bombing and the controversial trial. There is a "Questions for Discussion" section, along with a Chronology of the events of the bombing and trial. It also offers information on Islam and the history of terrorism. This is a very easy read with information about the WTC's architecture.
Court Case: Boumediene et al. v. Bush, President of the United States, etal., Cornell University Law School. Boumediene, et al. v. Bush (Nos. 06-1195 and 06-1196), 476 F. 3d, reversed and remanded, 2008 can be retrieved at: http://www.law.cornell.edu/supct/html/06-1195.ZS.html. The decision in this case allows detainees to receive constitutional privileges. The teacher can design a mock trial or role-play on this Supreme Court proceeding in a collaborative assignment.
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