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The “Terrorist” Batting Average

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For almost six years, the Bush administration has acted as if every terrorism accusation it makes should be received as the word of God on Mt. Sinai. Assistant Attorney General Steven Bradbury declared at a Senate hearing last July, “Under the law of war, the president is always right.” Thus, the issue is settled after the president’s men formally accuse someone.

But when it comes to hits and errors on terrorists, Uncle Sam could not qualify even for a tryout for the minor leagues. The federal government has had far more strikeouts than people realize when it comes to terrorist suspects.

In the six weeks after the 9/11 attacks, the U.S. government rounded up 1,200 people as suspected terrorists or terrorist supporters. The only thing necessary for a Muslim or Arab illegal immigrant to be considered a “suspected terrorist” was to be encountered by FBI agents in New York or New Jersey.

Arab students were locked up as suspected terrorists for working at pizza parlors (in violation of their student visas); a Pakistani immigrant was jailed after attracting attention because he and his Queens housemates failed to cut the grass and hung their underwear to dry on the fence; one Muslim was arrested because “he had taken a roll of film to be developed and the film had multiple pictures of the World Trade Center on it but no other Manhattan sites,” the Justice Department inspector general noted. Some FBI agents were instructed to look in phone books to find names of Arabs or Muslims who could be interrogated, as Newsweek columnist Steven Brill reported. None of the detainees proved to have links to the 9/11 attacks.

Since 2001, the feds have carried out wave after wave of arrests and crackdowns on alleged terrorist financing. But none of those apprehended in the United States has been linked to al-Qaeda. And the vast majority have been arrested merely for carrying more than $10,000 out of the United States without filling out a government form. Because the $10,000 rule was revved up as part of the USA PATRIOT Act, federal officials portrayed all the arrests as victories over terrorism. That made as much sense as assuming that anyone who failed to pay a parking ticket was linked to Hezbollah.

The PATRIOT Act made it a federal crime to operate a money-transmittal service without a state license. The first person convicted under the PATRIOT Act was Mohamed Hussein, a 33-year-old Somali native who ran a money-forwarding service out of Boston. Though Hussein was convicted merely for not having a state license, federal prosecutors sought a harsh sentence. Federal Judge Robert Keeton was outraged: “You’re trying to ask me to sentence him as a terrorist. It shocks my conscience that I would even be asked to do that.”
The TSA and its No Fly List

The federal government has inflated the No Fly List to 300,000 names. But the list has nabbed more members of Congress than terrorists. Sen. Edward Kennedy (D-Mass.) and Rep. John Lewis (D-Ga.) have been repeatedly blocked from flying, and anyone named David Nelson is likely to face a major interrogation each time he flies. The Wall Street Journal noted,

Many entries on the list lack details that could make it easy to know if a traveler is really the person named. The Transportation Security Administration gives airlines little guidance on just when a passenger’s name is close enough to one on the list to warrant flagging the person for a law enforcement check.

The feds make it very difficult to correct the list, thus tormenting citizens who are guilty of nothing more than having a name resembling a name suspected sometime by some government official.

Agents of the Transportation Security Agency (TSA) are now chatting up airline passengers to determine if they are terrorists. TSA agents have been trained to provoke and detect “involuntary physical and psychological reactions” — including whether people appear stressed out, frightened, or deceptive. The number of people who fear flying is larger than the number of al-Qaeda associates by at least a few thousandfold. Yet visible fear will be “close enough for government work” for TSA to justify taking people aside for far more intensive examination. Will the feds keep a list of sweaty flyers to justify subsequently tapping their phone calls and emails?

Hundreds of disruptions have occurred at U.S. airports since 9/11 after security breaches set off fears of terror attacks. The subsequent lockdowns boosted local television news ratings. Though no terrorists have been apprehended, thousands of Americans have been arrested at airports for violating TSA regulations or other rules.
NSA, the Pentagon, and Homeland Security

The NSA’s warrantless wiretaps also exemplify how terrorist suspicions mushroom. Shortly after the news of the program leaked out, Bush announced that “the NSA program is one that listens to a few numbers called from the outside of the United States and of known al-Qaeda or affiliate people.” But the program also listens to calls from inside the United States to abroad, and, in some cases, to calls exclusively within the United States. The Washington Post reported that the phones of 5,000 Americans have been tapped without a warrant as a result of the program — yet none of them has been nailed for supporting or conspiring with al-Qaeda.

The Pentagon has its own catch-all definitions of suspicious or terrorist-related behavior. Its Counterintelligence Field Activity program is covertly gathering information on Americans who protest the Iraq war or who are involved with websites critical of U.S. military policy. The Pentagon has conducted surveillance on anti-war protests and gatherings, including one at a Quaker meetinghouse in Florida. Names gathered in such fishnets are added to a Pentagon database involving the “terrorism threat warning process,” according to Newsweek.

The feds usually strike out because their notion of a terrorist suspect seems borrowed from a comic book, or maybe a pro-war editorial page. The federal Homeland Security Department in May 2003 urged local police departments to view critics of the war on terrorism as potential terrorists. The feds told local lawmen to be on the alert for potential suicide bombers, who could be detected by such traits as a “pale face from recent shaving of beard.” They “may appear to be in a ‘trance,’” or their “eyes appear to be focused and vigilant”; either their “clothing is out of sync with the weather” or their “clothing is loose.” Perhaps to ensure that there will never be a shortage of suspects, federal experts advised local agencies of another tell-tale terrorist warning sign — someone for whom “waiting in a grocery store line becomes intolerable.”
Flexible standards for labeling

Many of the home-front successes the feds have claimed in the war on terrorism are the result of ludicrous labeling. The Philadelphia Inquirer reported that most of the 56 federal terrorism suspects charged and reported by the Justice Department in early 2003 were mislabeled, including

28 Latinos charged with working illegally at the airport in Austin, Texas, eight Puerto Ricans charged with trespassing on Navy property on the island of Vieques, and a Middle Eastern college student charged in Trenton [New Jersey] with paying a stand-in to take his college English-proficiency tests.

The feds have charged 10 times as many people in terrorist investigations as they have convicted on terrorist-related charges. Bush declared in 2005 that “federal terrorism investigations have resulted in charges against more than 400 suspects, and more than half of those charged have been convicted.” But only 39 people were convicted of crimes tied to terrorism or national security, as a Washington Post analysis found.

The feds have also used very flexible standards that have been used for ticketing people to Guantanamo. Though Bush declared in 2003 that all of the enemy combatants were “picked up off the battlefield aiding and abetting the Taliban,” the Pentagon later admitted that many of the detainees were noncombatants and released them. At least one Gitmo detainee was nabbed off a tourist bus in Pakistan.

Though Bush announced in 2002 that all those held at Guantanamo were “killers,” his November 2001 executive order creating the “enemy combatant” category was very broad and included people suspected of threatening to cause “adverse effects” on the U.S. economy by participating in alleged terrorist conspiracies. Deputy Associate Attorney General Brian Boyle declared in 2004 that even a “little old lady in Switzerland” who mailed a contribution to an Afghan orphanage could be seized as an enemy combatant if some of her donation was passed on to al-Qaeda.

To use the same category for violent young conspirators and elderly donors makes no sense. But this exemplifies how the Bush system was designed to vest maximum discretion and boundless power in government officials.

On the bright side, the Bush team is confident of getting a high percentage of convictions before military tribunals because detainees have been tortured to confess to long lists of crimes. If only the feds could torture people on the No Fly List, perhaps most of them would admit their guilt as well.

An incompetent and often craven news media creates windfall political profits for bogus accusations. Regardless of how often terrorist charges have been dropped, the media routinely greet each new indictment as a vindication for the Bush war. The system is further skewed because politicians profit from false alarms. Each time the feds issued a new warning of a terrorist threat after 9/11, the president’s approval rating rose by an average of almost 3 percent, according to a 2004 Cornell University study.

False accusations will not keep America safe. A government official’s suspicions of wrongdoing proves nothing. The contempt that the Bush team has shown for due process and rules of evidence has opened a Pandora’s box which could haunt this nation for many years.

This article originally appeared in the June 2007 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.