Are Arab Americans Being Unjustly and Illegally Deprived of Their
Many residents and citizens of the
United States of Arabic background are making the claim that they are being unjustly and
illegally deprived of their constitutional rights. Many Arab Americans point out that
since the World Trade Center and Oklahoma bombings, there has been a series of legislation
and various orders enacted to deprive innocent Arab Americans and resident Arabs in
America of their freedoms and constitutional rights.
Arab Americans have pointed out that the enactment of the Omnibus Anti-Terrorism and Effective Death Penalty Act of 1996, the Executive order of 1995 (which designated Palestinian groups who have differing views than the U.S. government concerning the Arab/Israeli peace process as "terrorist organizations") and legislation which deprives innocent people of due process such as the use of "secret evidence" are examples that they are being unfairly targeted. Furthermore, the campaign to stifle Palestinian Arabs has evolved into a dangerous and frightening campaign to silence and cripple Arab activism. Additionally and most recently, Arab Americans have pointed out that the U.S. Government is now manipulating our grand jury system to serve foreign interests and to incriminate people because of their political beliefs.
This report will analyze and discuss whether the legislation that has been enacted since the Oklahoma and World Trade Center bombings is illegally targeting Arab Americans. Specifically, this report will focus on the criminalizing of humanitarian fundraising, the use of secret evidence and whether our grand jury system is being used improperly to target Arab Americans.
CRIMINALIZING INTERNATIONAL FUNDRAISING AND HUMANITARIAN AID
The criminalization of international fundraising and
humanitarian aid has been accomplished by the Anti-Terrorism and Effective Death Penalty
Act of 1996. This law makes it a crime to knowingly raise and contribute funds, donate
educational and humanitarian aid, or to provide lodging, transportation or other forms of
"material support" to designated foreign groups. Those convicted of this new
federal crime will face up to ten (10) years in prison.
After consultation with the Attorney General and the Treasury Secretary, the Secretary of State will designate political groups based abroad as "foreign terrorist organizations." The Secretary must certify that each group on the list threatens U.S. "national security" and has engaged in "terrorist activity." "Terrorist activity" is defined broadly and includes hostage taking, sabotage of a vehicle, and "the use of an explosive or fire arm with the intent to endanger directly or indirectly the safety of one or more individuals" or "cause substantial damage to property." Threats, attempts and conspiracies are covered as well as actions.
Under this definition, any liberation movement that takes up arms against a repressive regime that is friendly with the president serving at the time could receive a terrorist label. Under this definition, those colonial soldiers who took up arms against the British during the U.S. War of Independence and organizations like Nelson Mandellas ANC would be considered terrorists or terrorist organizations.
Once an organization is labeled a "terrorist organization" anyone who makes donations to a legal defense fund or sends supplies or money to a medical clinic or a school funded by that organization could face up to ten (10) years in prison. The government has enormous discretion to determine, depending on its changing foreign policy needs, which groups are legitimate and which are not.
The act also punishes those who engage in a financial transaction with a foreign government that, according to the U.S., has "repeatedly provided support for acts of international terrorism," with up to (10) ten years in prison. Again, the U.S. government has enormous discretion to determine, depending on its changing foreign policy needs, which countries support international terrorism. Presently, out of six (6) countries the State Department considers supporters of international terrorism five (5) are either Arab or Muslim. Out of those five (5) countries, all have views on the Arab/Israeli peace process that are different than that of the Clinton Administration.
The enacting of the "Anti-Terrorism Law" has shocked millions of Americans. Those who oppose the law are arguing that the "Anti-terrorism" law will be used to attack oppressed people and nations fighting for justice and self-determination. The law unilaterally abolishes internationally recognized distinctions between liberation movements and guerrilla warfare and terrorism. Opponents also argue that the law "conveniently" ignores the repressive behavior of regimes friendly to the leaders of the U.S., such as Israel which has routinely engaged in state sponsored terrorism against minority populations under its rule and has legalized torture.
Perhaps those who were the most shocked by the law are lawyers and others who have the most basic understanding of the U.S. Constitution and First Amendment. These lawyers argue that the law is inconsistent with two hundred years of established First Amendment jurisprudence that protects freedom of expression. These lawyers argue that the "Anti-Terrorism" law is being used by the United States government to chill and control political expression, the free exchange of ideas, and the right to associate politically and religiously throughout the U.S. and the world. Therefore, the Anti-terrorism law is over-broad and unconstitutional.
This report will analyze established First Amendment law and consider whether the assertion that the "Anti-Terrorism" law is unconstitutional is valid or not. This analysis requires a study of the standards and reasoning that American courts use to analyze First Amendment Law.
The First Amendment provides that "Congress shall make no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and petition the Government for redress of grievances." The First Amendment thus provides several distinct rights which may be grouped under the category "freedom of expression." Those distinct rights are freedom of speech, of the press, of assembly, and of petition. Additionally, the Supreme Court has recognized "freedom of association" which, although it is not specifically mentioned in the Constitution is derived from peoples rights of speech and assembly.
When government interferes with freedom of speech, its reasons for doing so can be placed into two broad classes. The first is that the government is restricting the speech because of its content. "Content" means the ideas or information contained in the speech or the general subject matter. In other words the government interferes because it does not like what is being said. This type of regulation is referred to as content-based regulation of speech.
The second reason for interfering with speech has nothing to do with the content of the speech; rather, the government seeks to avoid some evil unconnected with the speechs content, but the government regulation has the unintended or secondary by-product of interfering with particular speech. An example of this type of interference is when the government says "no passing flyers in the park." The purpose of this rule is to avoid litter or garbage but has an unintended by-product of interfering with speech because people will not be able to pass flyers that have many types of communications in them. This type of regulation of speech is referred to as content neutral regulation of speech. This is because the government is not targeting the speech or the content of the speech.
The U.S. Supreme Court has held that if the regulation falls within the first class, that is, content-based regulation of speech, where the government is trying to regulate the message or the speech, then there is a strong presumption that the regulation is illegal and unconstitutional. In this situation, the Court will Strictly Scrutinize the regulation: the government bears the burden of showing "that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." In other words, when the government tries to regulate the content of speech a very rigid analysis must be followed. The most important general rule is the following: "whenever the harm feared could be averted by a further exchange of ideas, governmental suppression is conclusively deemed unnecessary."
This rule reflects the First Amendment view that it is not the governments place to suppress ideas because they are "wrong" or "unpopular;" rather, as Justice Holmes put it in Abrams v U.S., there is to be "free trade in ideas," and the truth will become accepted through "the competition of the market." The market that Justice Holmes was talking about is the market of ideas; where people freely speak their mind; where the listener, and not the government, is left to decide whether an idea, belief or opinion is "wrong" or "right;" where the "wrongness" or "rightness" of ideas, beliefs or opinions will speak for themselves.
Lets now turn to the second type of speech regulation discussed above. This is the type of regulation that is referred to as content neutral regulation of speech. This is a type of regulation in which the governments interest in regulation does not relate to the communication of the speech but interferes with it unintentionally (e.g., the passing of flyers in the park). The important thing to know here is that the government has more power to regulate speech if the regulation has nothing to do with the content of the speech. Another important thing to keep in mind is that, even if the regulation is content neutral, the government must not close adequate alternative channels for communications, and the regulation must be narrowly-tailored to serve a significant government interest. This means that even when the government makes a regulation that unintentionally or secondarily regulates speech, the government must have a really important reason and the regulation must be designed to interfere with no more speech than necessary.
Another aspect of the First Amendment that is important to our analysis is the freedom of association. The First Amendment does not explicitly mention the freedom of association. But in numerous cases, the Supreme Court has held that freedom of association derives by implication from the explicitly-stated right of speech, press, assembly and petition. The Supreme Court has held that before the government may significantly interfere with protected association activity, two showings must be made: (1) that the governmental interest being pursued is a compelling one; and (2) that that interest can not be achieved by means less restrictive of the freedom of association. In other words, the Court is applying the Strict Scrutiny test it applied in content-based regulation of speech. This means that any regulation that interferes with freedom of association is presumed to be illegal and unconstitutional.
Having discussed the basics of First Amendment law lets return to the Anti-Terrorism Law. Recall that this law makes it a crime to knowingly raise and contribute funds, donate educational and humanitarian aid, or to provide lodging, transportation or other forms of "material support" to designated "terrorist groups". Is this law a violation of the First Amendment? The answer is yes and here is why.
The Supreme Court has held that, in our political times, speech and the expenditure of money go hand-in-hand. Whether money is spent by a private citizen who is contributing to a candidate, to a political movement or to a political party, the Court has held that spending money on such candidate, party or movement has a strong expression component and is thus protected by the First Amendment. For example, when a person donates to the Democratic party he is making a statement. He is perhaps saying "I believe that women should have the right to have an abortion" or "I believe in liberal values." If he sends money to the Republican Party, he may be saying that he believes in smaller government, higher military spending, and is opposed to liberal values.
The same reasoning applies when a person sends money to a Palestinian hospital operated by Hamas or the PFLP. That person is saying perhaps that it is wrong for Israel to shoot and maim stone-throwing children and he is expressing his beliefs by sending money to the hospital that treats victims of Israeli brutality. Another example is sending money to support a school operated by Hizballah. This may express a persons belief that Lebanon should be free from all foreign forces and his wish to help bring to good health those who are wounded in the push to liberate it.
Again, the same reasoning applies when a person sends money to the Likud party of Israel. That person may be saying that he believes Israel has every right to occupy all the land formerly known as Palestine and that he will express his beliefs by sending money to make certain that Likud remains strong. Similarly, one who believes that there should be an independent Palestine might express his views by sending money to the Peace Now Movement or the Labor Party.
There are no legal consequences for sending money to the Democratic, Republican, Likud or Labor Parties, however, a person who sends money to the PFLP or Hamas faces up to ten years in jail. Sending money to Benjamin Netanyahu of Likud, who has ordered the bombing of Lebanon on countless occasions and who has ordered the assassinations of various people, garners no legal consequences. However, sending money to George Habash of the PFLP, who may or may not have committed the same acts as Benjamin Netanyahu, may bring up to ten years in jail.
What is the difference between sending money to Likud or Hamas, Netanyahu or Habash? The difference is in the political message. When a person sends money to Netanyahu, he is saying that the land once known as Palestine is now Israel and its the home for Jews only. By sending money to Habash, a person is saying that the land some call Israel is still Palestine and it is the home of the Palestinians. Clearly, the U.S. does not like what Habash has to say and therefore, has labeled him a terrorist. It is also obvious that the U.S. does not like what Hamas and Hizballah have to say and has labeled them "terrorist organizations." Is this not content-based regulation of speech? The kind of regulation that the Supreme Court has said time and time again is presumed to be illegal and unconstitutional?
As further proof that the "Anti-Terrorism Law" is nothing less than unconstitutional content-based regulation of speech, let us once again consider the definition of "terrorist activity." It is defined to include hostage taking, sabotage of a vehicle, and "the use of an explosive or fire arm with the intent to endanger directly or indirectly the safety of one or more individuals" or "cause substantial damage to property." Lets apply this definition to Israel. Israel has on many occasions ordered the taking of hostages. One example is when special Israeli forces went into Lebanon and kidnapped and took as a hostage for ransom the leader of Hizballah. Israel has used explosives and fire arms with the intent to kill, and did, in fact, kill and endanger more than 20,000 people during the Intifada. Israel has used explosives to destroy many Palestinian homes. Do not Israels activities fall within the definition of "terrorism" as defined by the "Anti-Terrorism Law"? The answer is yes.
Therefore, the application of the Anti-Terrorism Law to Arab organizations only is nothing less than content-based regulation of speech which the U.S. Supreme Court has on countless occasions held to be illegal and unconstitutional.
It should be noted that this report is in no way suggesting that the Anti-Terrorism Act should be applied against Israel or Netanyahu. The assertion in this report is that the Anti-Terrorism Act is unconstitutional and should not be applied against anyone. Let us remember what Justice Holmes has said: there is to be "free trade in ideas," and the truth will become accepted through "the competition of the market."
(2) THE USE OF SECRET EVIDENCE
Arab Americans and residents have pointed out as further
proof that the U.S. government is unfairly targeting them, the new law that allows the use
of secret evidence in certain immigration cases. The use of secret evidence is based on
the governments assertion that immigrant political activists have engaged in
"terrorist activity" somewhere in the world. Once the assertion of terrorist
activity is made, the Attorney General can bring those activists before newly created
"Alien Terrorist Removal Courts."
In these proceedings, the Justice Department can use secret evidence (information that is classified to protect "national security"). The jailed immigrants, and their attorneys, will not get to see the specific evidence that is used to deport them. They will be denied their rights, under the Due Process Clause of the Fifth Amendment and the Confrontation Clause of the Sixth Amendment, to confront the governments informant in court and test his/her credibility.
As evidence of their assertions that they are being unfairly targeted, Arab Americans and residents point out that the overwhelming majority of people who have had secret evidence used against them are Arab residents. The following discussion will analyze several cases in which secret evidence was used against Arab residents and conclude whether secret evidence is used to stifle Arab political expression. In addition, the following discussion will consider whether the use of secret evidence is legal under U.S. constitutional law.
Nasser Ahmed is a 37-year-old Arab who immigrated to the U.S. in 1986 to work as an electrical engineer. He worked as a government approved paralegal aid to Shaikh Omar Abdel Rahman. The INS and FBI had been working together to recruit Mr. Ahmed against Shaikh Omar. When he refused to accept future "cooperation," Mr. Ahmed was threatened with deportation along with his wife and children. Mr. Ahmed was arrested in April of 1996 based on a government claim that he was suspected of being associated with a terrorist organization. The evidence was kept in camera, meaning that neither Mr. Ahmed nor his attorney were allowed to see the evidence against him. Despite testimony by Ramsey Clark that as Attorney General he saw many intelligence files and that they were unreliable, Mr. Ahmed has been in solitary confinement with no criminal charges pending.
Mr. Termos immigrated to the U.S. in 1986 as a student. After overstaying his visa for several years, he married an American in 1996. In the same year, he was arrested by the INS. The FBI questioned him about his ties to "terrorist" organizations. Mr. Termos acknowledged that he sent a nominal sum each year to the "Martyrs Foundation" in Lebanon to support a relative whose father was killed in an Israeli raid on South Lebanon. Mr. Termos also admitted to being outspoken in his belief that the Israeli occupation of South Lebanon is illegal. Although the FBI and the INS admitted that Mr. Termos has committed no crimes, either in the U.S. or abroad, he was deported on October 6, 1997, based on secret evidence that neither he nor his lawyer could review, and, thus, defend against.
Imad Hamad moved to the U.S. from Lebanon on a student
visa. He married an American and they had two children. Since the Israeli invasion of
Lebanon in 1982, Mr. Hamad has been an outspoken advocate for the rights of the
Palestinian people. Until the beginning of his deportation proceeding. Mr. Hamad worked as
a counselor for recent immigrants from the Middle East. The INS claimed that Mr. Hamad was
affiliated with the Popular Front for the Liberation of Palestine (PFLP), allegedly a
terrorist organizatin. Soon thereafter, Mr. Hamad started receiving threatening phone
calls from someone with access to internal INS information.
Mr. Hamads case stands out because the INSs behaviour has been questionable from the start. Claims of missing documents and missing files for example, in order to deny approval of immigrant visa petitions and adjustment of status, indicate that this case has been treated with mystery and impunity. It seems clear that the INS is trying to deport Mr. Hamad for his support of the PFLP and the Palestinian people.
Having reviewed the above three cases and the use of
secret evidence, the questions to ask are: (1) is the U.S. government targeting
Arab/Muslim residents for their views, political activism and association? (2) does the
U.S. constitution protect non-citizens as it does citizens? (3) does the use of secret
evidence violate the Due Process Clause of the Fifth Amendment and the Confrontation
Clause of the Sixth Amendment?
Recalling the discussion on freedom of speech and association at the beginning of this report, the U.S. Supreme Court has held time and time again that government regulation of speech based on the content or the message of the speech is presumed to be unconstitutional and therefore illegal.
In the above three cases, it is clear that the INS and the FBI have targeted those individuals for their political activism, opinions and associations, all of which, as has been shown, are protected by the First Amendment. Mr. Hamad and Mr. Termos for example, believed strongly that the occupation of Southern Lebanon by Israel is illegal. Nasser Ahmad was very critical of the Egyptian government. The positions of Hamad, Termos and Ahmad were contrary to official U.S. government policy. However, just because Hamad, Termos, Ahmad and other Arab residents have views that are different from official government policy does not mean that the U.S. has the right to target and prosecute those people. In fact, punishing Arabs for their views is contrary to the long-standing U.S. tradition that people are free to disagree with the government without suffering any consequences. This is the market flow of ideas that Justice Holmes was talking about.
The next question to be answered is whether the use of
secret evidence violates the Confrontation Clause of the Sixth Amendment. The
Confrontation Clause guarantees a defendant the right to be "confronted with the
witness against him."
At the very least, the drafters of the Confrontation Clause intended to assure a criminal defendants right to be present at his trial, to learn what evidence is being introduced against him, and to question those who inculpate him or testify against him. These are the basic requirements of a fair trial.
A literal reading of the Confrontation Clause might suggest that no out-of-Court statements could ever be used against a defendant unless the defendant has been given the right of cross examination at the time of the statement. But the Supreme Court has not taken such a view. The Court has held that so long as the declarant is available at trial to be cross-examined about his earlier declarations the Confrontation Clause is satisfied.
The Supreme Court has clearly shown its preference for live testimony in lieu of out-of-court declarations wherever possible. A key reason for the Courts preference for live testimony is that only with live testimony does the judge or a jury have a chance to observe and weigh the demeanor of the witness. Even if the prior out-of-court declaration was subjected to cross examination, and even if a transcript was made of it, the judge or jury is deprived of the opportunity to conclude, for instance, that the declarants nervous mannerisms or behavior makes his testimony suspicious. See, for example, Barber v. Page wherein the court stated, in part, "The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness."
Probably the most important principal under the Confrontation Clause is that even where the declarant is unavailable to be confronted and cross-examined; his out-of-court declaration will not be allowed into evidence unless it contains "indicia of reliability."
Given the above background on an accused persons rights to confront his accuser and see the evidence against him, lets return to the use of secret evidence. Recall that when secret evidence is involved, neither the accused nor his lawyer is provided a chance to see the evidence against him. In fact, in several cases, even the judge has been given no more than a mere, and sometimes useless, summary of the secret evidence against the accused. The accused is left with absolutely no opportunity to defend himself against deportation. These "Banana Republic" type of trials are clearly contrary to the Confrontation Clause and justice.
For example, former Attorney General Ramsey Clark testified that he saw many intelligence files and that they were filled with uncorroborated and unreliable evidence. If this is the case with the use of secret evidence in these special immigration courts then the evidence presented by the INS will not meet the "indicia of reliability" that the Supreme Court has demanded. This being the case, and unless the Supreme Court holds that the Confrontation Clause does not apply to immigration proceedings, then the use of secret evidence is clearly in violation of the Constitution and therefore illegal.
Even if the use of secret evidence does not violate the
Confrontation Clause of the Sixth Amendment, it does, most likely, violate the Due Process
Clause of the Fifth Amendment. The Fifth Amendment states in part that "No person
be deprived of life, liberty, or property, without due process of
" The due process right has been held to apply to all aliens in the
United States. Further, reliance on undisclosed or secret evidence against aliens has been
held to violate due process even when the INS is merely trying to deprive an alien of an
immigration benefit. If the use of secret evidence violates due process when the INS
denies an alien a benefit, then it must also violate due process when the INS tries to use
secret evidence to deprive an alien of his liberty.
The Supreme Court has formulated the following three factors to determine if due process is satisfied: (1) The private interest that would be affected by the governments action (so that the bigger the individuals stake in the outcome, the more safeguards would be required); (2) the risk of an erroneous deprivation of such interest through the procedures used; and (3) the governments interest, including the burden that additional procedure would entail. Lower courts applying these three factors to the use of secret evidence have uniformly found that due process prohibits such use where important liberty interests are at stake.
For example, in Rafeedi v. INS the INS sought to rely on secret evidence of Fouad Rafeedis alleged membership in the PFLP to exclude him from the country upon returning from a trip abroad. The D.C. Circuit Court held that the INSs attempt to rely on secret evidence violated due process. In that case, every judge who reviewed the INSs action found "the governments basic position profoundly troubling." The District Court found that the use of secret evidence "affords virtually none of the procedural protections designed to minimize the risk that the government may err." The Court of appeals stated, while referring to an alien confronted by the use of secret evidence, that "it is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden." Clearly the courts involved in the Rafeedi case made a just decision.
If, in cases like ADC v. Reno and Rafeedi V. INS, the courts found that the use of secret evidence does violate due process, then many non-lawyers are now asking the question, why does the INS continue to use such evidence? The answer is that the Supreme Court has yet to rule on the use of secret evidence in an immigration proceeding and against legal and illegal residents in light of the three procedural due process factors mentioned above. Until the Supreme Court rules on these issues, different circuits have the right to disagree and apply the three due process factors according to their own standards.
In order to reach the Supreme Court, a case must continue to be appealed until it reaches the point where the last appeal is to the Supreme Court. Then the Supreme Court has discretion as to whether it will hear the case. Going back to the Rafeedi case, for example, after the Court of Appeals ruled against the INS, the INS chose not to appeal and dropped its case against Rafeedi. In that situation, the case died and, thus, no nationwide precedent was set. That means that the INS is free to do the same thing in other jurisdictions.
The Grand Jury System and Foreign Interests
Perhaps one of the most disturbing actions taken
by the U.S. government to silence the Arab American community is the use of information
derived from Grand Jury hearings to serve foreign interests. A claim made by the
Arab community is that the United States is using the Grand Jury system to provide Israel
with information supposedly to help fight Palestinian terrorism or those who are against
the "peace process." The use of Grand Jury information to implicate people in
Israel is extremely dangerous because Palestinians have no due process rights in Israel
and no way to challenge abusive government conduct. Indeed, anyone who is targeted in
Israel as a "terrorist", a term interpreted very broadly in Israel to include
anyone that does not agree with how Israel treats Palestinians, may end up dead or placed
in jail for years without trial.
The issue of using Grand Jury information to serve foreign governments has led to the investigation of two men, Dr. Abdelhaleem Ashqar and Mr. Ismail Elbarasse, for money laundering. While being questioned in the Grand Jury proceeding they were asked various questions about people who are active politically inside Israel and the occupied territories. The two men became suspicious of the questions and refused to answer for fear that their information would be sent to Israel. Dr. Ashqar and Mr. Elbarasse believe that their testimony would be used to incriminate a group of people because of their political opinions. They also believe that this particular process is designed to criminalize lawful association in violation of the First Amendment of the U.S. Constitution.
The suspicions of Dr. Ashqar and Mr. Elbarasse were confirmed when various U.S. government agents informed the two gentlemen that the investigations were conducted for and on behalf of Israel. For example, on October 25 and 26 of 1994, Steve Taylor and Avery Rollins of the FBI informed Dr. Ashqar that they were questioning him on behalf of Israel. On another occasion, September 5, 1996, John Hilman of the U.S. Attorneys Office offered Dr. Ashqar various inducements for helping the U.S. Attorneys Office gather evidence against Palestinians. Dr. Ashqar was told that charges would be filed against him if he did not cooperate. He was further told that these charges would be filed in New York where the FBI and the U.S. Attorneys offices are made up of mostly Jews who are pro-Israel. Dr. Ashqar was then reminded that Israel was the beneficiary of these investigations.
GRAND JURY PROCEEDING
Before going further with Mr. Ashqar and Mr.
Elbarasses cases, a proper understanding of Grand Jury proceedings is essential. The
Fifth Amendment of the U.S. Constitution provides that "no person shall be held to
answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury." This provision has been interpreted to mean anyone charged with
a federal felony.
The Grand Jury panel is drawn from the same group of private citizens as a regular trial jury. Traditionally, the Grand Jury consists of 23 members, with a majority needed to indict. The Grand Jurys function is to determine whether there is sufficient evidence to justify a trial. The Grand Jury hears only evidence presented by a prosecutor. The proceedings are carried out in secrecy, with only the prosecutor, a series of witnesses, and the Grand Jury jurors present. The person who is the target of the Grand Jury investigation never has the right to be present throughout the proceedings. In the overwhelming majority of cases, the Grand Jury votes to indict. If the Grand Jury refuses to indict, the prosecution must be dropped.
The Grand Jury has the power to subpoena both witnesses and evidence. A witness who fails to comply with either type of subpoena may be held in contempt of court and put in jail.
The Fifth Amendment privilege against self-incrimination will frequently entitle a witness subpoenaed by a Grand Jury to refuse to testify. However, if each witness summoned before a Grand Jury could simply plead the Fifth Amendment and thereby be relieved of all need to testify, the Grand Jurys investigation powers would be severely undermined. This does not happen, because the Grand Jury has a powerful weapon to combat this problem: It may issue immunity to the witness. Because the grant of immunity means that the witness does not have to worry about his testimony being used to prosecute him in a later criminal case, the basis for the Fifth Amendment objection is eliminated, and the witness can be required to testify.
Returning to the case of Dr. Ashqar and Mr. Elbarasse, the Grand Jury investigation began in 1996 when Dr. Mousa Abu Marzook, a U.S. resident and the President of the political bureau of the Islamic Resistance Movement (Hamas) was jailed for nearly two years with no charges pending against him. The investigation uncovered no wrongdoing. However, lawful opposition to the "peace process" in the form of political expression and activism became a criteria for government harassment and incrimination.
In the initial Grand Jury proceeding both Dr. Ashqar and Mr. Elbarasse were asked if they knew Dr. Abu Marzook and other "Islamic" activists in the U.S. or Palestine.
In February of 1998, Dr. Ashqar was subpoenaed to appear before a federal grand jury sitting in New York. Dr. Ashqar immediately informed the U.S. Attorneys Office that he would invoke his Fifth Amendment right not to answer any question put to him. The U.S. Attorneys office obtained a grant of immunity from a federal judge.
Dr. Ashqar told the Grand Jury:
I respectfully refuse to answer any question put to me other than my name, address and occupation on the grounds that to do so would violate my long-held and unshakable religious, political and personal beliefs and that my answers will be used against my friends, family and colleagues in the Palestinian Liberation movement. I would rather die than betray my beliefs and commitment to freedom and democracy for Palestine. I will never give evidence or cooperate in any way with this Grand Jury, no matter what the consequences to me.
After making this statement Dr. Ashqar was jailed for
civil contempt and went on a six-month hunger strike. [Dr. Ashqar was finally released
from custody on August 23,1998 - ed.].
Clearly the system placed Dr. Ashqar and Mr. Elbarasse in a predicament. On the one hand, they are law-abiding citizens who believe in the Grand Jury system and who want to participate in it for the purpose of fighting crime. On the other hand, the Grand Jury system is being used for unjust reasons: It is being used to construe lawful association as evidence of guilt; it is being manipulated by the government for partisan gain and for serving foreign interests; it is being used to stifle and chill the positive reform, development and progression of a vibrant upcoming community; and it is being used to endanger the lives of many innocent Palestinians. When the Grand Jury system is being used for unjust reasons, do Dr. Ashqar and Mr. Elbarasse have any choice but to do the right thing and remain silent? Can anything be done to stop the Grand Jury system from being used for unjust reasons? Perhaps.
Since there are not many cases on point or laws on the proper use of Grand Jury investigations, the use of legislative investigations and their limits will be used as a comparison to determine what safeguards maybe available to stop the improper use of the Grand Jury system.
Issues about the scope of compulsory disclosure also
arise in the context of legislative investigations. Such investigations, carried out by
committees of Congress or state legislatures, have the right to subpoena testimony in
matters relevant to contemplated legislation. Witnesses who refuse to give relevant
testimony may be subjected to criminal contempt proceedings.
Such legislative investigations have sometimes come into conflict with the freedom of association that is guaranteed by the First Amendment. Typically, this conflict has arisen where the investigation concerns "illegal" or "subversive" activities, and the witness is asked either about his own associational activities or about those of other persons.
The Supreme Court has always imposed a number of procedural limitations upon investigations, especially where association freedoms are threatened. Thus the Court has required that the legislative body, in authorizing its committee to perform an investigation, sets forth in detail the scope of the inquiry. Questions which do not fall within such a clearly defined statement of purpose may not form the basis for a contempt prosecution of a witness who refuses to answer them. Similarly, the guarantee of due process applies. This due process right includes the right to be told with some precision how the question is relevant to the investigation. The question must relate in some way to the contemplated investigation. Where a question interferes with association freedoms, it is not a sufficient justification that the investigators want to publicize the identities of the alleged wrongdoing: "There is no congressional power to expose for the sake of exposure."
The Court has consistently held that where association freedoms conflict with a legislative need for information, the result may be ascertained by performance of a balancing test. The balancing test compares the validity of the legislative purpose compared to the individuals freedom of association. In applying this balance the Court has applied strict scrutiny (recall that this means that the need of the government must be compelling and the government is presumed to fail the test) to all legislative questioning which impairs freedom of association or expression. Gibson v. Florida Legislative Comm.
In Gibson, a committee of the Florida legislature, claiming suspicions that Communists had infiltrated the NAACP, demanded that the NAACP produce its statewide membership list. The association refused, and its local president was convicted of contempt. In reversing the contempt conviction, the Court articulated a strict scrutiny standard for judging any investigation which intrudes upon First Amendment rights. The Court held that the state must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."
As is obvious, the Gibson case is very similar to the case of Dr. Abdelhaleem Ashqar. The main difference is that in Gibson it was a state legislature rather than a Grand Jury that was conducting the investigation. Nevertheless, the principles are the same, and the Gibson case could be a very strong argument in support of stopping the federal government from using Grand Jury proceedings to implicate and criminalize Arab activists living in the U.S. and in territories controlled by Israel.
The purpose of this report was to analyze certain laws
and actions by the U.S. government and determine whether the Arab community is being
unfairly targeted and prosecuted for behaviors that are otherwise legal. This report has
focused on three subjects: (1) criminalizing international fundraising and humanitarian
aid, (2) the use of secret evidence, and (3) the improper use of Grand Jury proceedings.
In analyzing these three topics and the laws and orders enacted after the World Trade
Center and Oklahoma city bombings, it became very difficult not to believe that the Arab
communities were not being specifically targeted. Indeed, the analysis of the laws and
their implementation made it absolutely clear that the Arab communities are being targeted
because of their presently unpopular views. This is so, despite the fact that the Supreme
Court, in two hundred years of First Amendment jurisprudence, has made very little speech
In this report, various legal arguments were presented to defeat the unfair laws that are targeting the Arab communities. These arguments were presented to first, inform people of their rights, and second show that it is not impossible to defeat those laws. Arabs must fight for their rights with unrelenting vigor.
Furthermore, the Arab communities should not be discouraged because their views are presently unpopular [But] history has shown, time and time again, that the unpopular view of today may be tomorrows way of life. Let there be "free trade in ideas" and the Truth will become accepted through the "competition of the market."
Kamal Nawash serves as the Director of Legal Affairs for the American-Arab Anti-Discrimination Committee (ADC).
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