How the Son of Edward Said Is Trying to Change Terrorism Prosecutions

Law professor Wadie Said, in a new book, delves into the ways unwarranted terrorism cases have eroded the rule of law.

In 1999, Wadie Said was finishing his graduate studies at Columbia Law School, unsure of the direction he wanted his career to take.

A year earlier, the U.S. embassies in Kenya and Tanzania were bombed by a little-known terrorist group called al Qaeda. The lawyer for Muhammad al-Owhali, accused of organizing the bombings, reached out to Palestinian-American academic Edward Said for help in communicating with his Arabic-speaking client, as well as in understanding the politics of the region. Said suggested that his son might provide assistance.

“Sure, I guess,” was Wadie’s somewhat nervous reply at the time.

The experience was formative, setting Wadie, now a law professor at the University of South Carolina, down a path of legal practice and activism in the field of post-9/11 terror cases.

“I really absorbed from my father the idea of standing up for people who were persecuted or otherwise down-and-out, and wanted to apply that lesson in a different way, hence my initial decision to become a public defender,” Said says in an interview. “I was fortunate enough to start my career working on a high-profile prosecution like that with political overtones, and I came to the belief that it is always important to try and get the client’s message across, especially given how the overwhelming official hostility towards anyone with the status of terrorism defendant can subvert the legal process.”

The judicial fearmongering is perhaps best encapsulated by a 2013 appellate ruling in the case of Tarek Mehanna, a Boston-area man convicted of material support for terrorism. Mehanna was not actually accused of planning any violent act. The terrorism charges were instead based primarily on an accusation that he had translated ideological materials from Arabic to English and posted them online.

In his ruling upholding Mehanna’s 17-year sentence, Judge Bruce Selya wrote, with considerable rhetorical excess, “Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat,” and he added that terrorism defendants, even ostensibly non-violent ones like Mehanna, should expect the posture of the courts toward them “will be fierce.”

Wadie Said’s critical view of these sorts of cases was shaped by his father’s scholarship, as well as his own legal studies. “My father’s books obviously had a deep impact on me, as I learned how negative stereotypes affecting whole regions, cultures, languages and religious practices of anyone who could be considered part of the Muslim world could be very overwhelming,” Said says. “Once these stereotypes migrated to the realm of criminal prosecution, I felt I should try my best to counteract and dispel them in the legal field, particularly in cases where the government wanted to put people in prison for non-violent political activism, charity and other forms of solidarity with oppressed people around the globe.”

Said has written a new book, Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions, which argues that “the mentality that we are in a nebulous and continuous war on terror” has led to overzealous and unwarranted terrorism prosecutions, while eroding key aspects of the rule of law. “The excesses of the past, including the use of agents provocateurs, racial profiling and mass infiltration by informants, have all been quietly revived under the banner of fighting this ill-defined threat,” Said told The Intercept.

Since 9/11, the U.S. government has pursued extraordinary legal (as well as extralegal) efforts to combat terrorism, and in doing so has expanded the “terrorist” label far beyond its previous connotations. Said argues that measures taken by the courts have created an effective “terrorist exception” to previously existing legal standards. Crimes of Terror examines the way in which this exception has altered normal law enforcement and judicial practices at every stage of the legal cycle, from initial investigation and evidence gathering, to trial, and finally to sentencing and incarceration.

In the courts, the admission of evidence obtained through torture, violations of due process rights and even evidence obtained by agents of foreign governments known for human rights abuses, have been deemed legally acceptable. Ahmed Abou Ali, a U.S. citizen who confessed under torture by Saudi authorities to a plot to kill then-President George W. Bush, had his confession deemed admissible by an American judge, in a trial that Amnesty International criticized as potentially “[setting] a precedent in US courts of according support to …. statements obtained by torture and ill-treatment.” Abou Ali is presently serving a life sentence in the ADX Supermax facility in Florence, Colorado.

The extent to which normal legal procedures are often suspended was highlighted in one bizarre episode, described in Said’s book, from the 2007 trial of the directors of the Holy Land Foundation, once the largest Muslim charity in the United States. At that trial, agents of the Israeli Mossad were permitted to testify anonymously and with their faces hidden as expert witnesses about the foundation’s purported links to Hamas. One of the agents, introduced to the jury solely under the pseudonym “Avi,” told the court that he could “smell Hamas” on the defendants’ charity work.

Crimes of Terror documents what Said says is a willful, ongoing effort by the government to blur the line between peaceful activism and terrorism, wherein people advocating for unpopular political causes are treated by the legal system in the same manner as those accused of committing violent acts. During the Holy Land Foundation trial, the prosecution played incendiary videos of Hamas and Islamic Jihad rallies to connect the defendants in the minds of the jury to violent militarism, despite the government conceding that the defendants themselves were engaged in purely humanitarian work.

Indeed, it was revealed at trial that several of the defendants had attempted in 1996 to clarify the rules on sending charity money to the Gaza Strip without running afoul of material support laws, a request to which the government had been unresponsive. The defendants in that case were ultimately convicted of terrorism charges and sentenced to lengthy prison terms on the grounds that their funding of charitable committees in Gaza had provided “reputational” benefits to the Hamas government there.

“One deliberate goal of the government has been to effectively equate having unpopular politics with being a terrorist,” Said says. “No one involved in the Holy Land Foundation had anything to do with violence and the government readily acknowledged they were involved in purely humanitarian work. However, because they were advocating Palestinian nationalism, an unpopular cause in the United States, they were successfully prosecuted as ‘terrorists’ and will now likely serve the rest of their lives in prison.”

The sense that terrorism cases are legally exceptional pervades the entire legal process, right up to incarceration. The U.S. government now operates a number of highly restrictive prison facilities for terrorism suspects on the mainland, known as Communication Management Units, or CMUs. These units are widely perceived to have developed a religious component, specifically as facilities created for the purpose of housing Muslim prisoners. A 2011 NPR report documenting the existence of these facilities, dubbed “Guantanamo North,” cited figures showing up to three quarters of CMU detainees were Muslim, a “tenfold over-representation” when compared with the national prison population.

Even unluckier, however, are the people convicted of terrorism who wind up in facilities like ADX Supermax in Florence, Colorado, where they are subjected to solitary confinement, as well as Special Administrative Measures (SAMs), which restrict their ability to communicate with other inmates, friends and relatives outside prison, and even prevent them from receiving news of the outside world.

While these measures are justified on the basis of preventing convicted terrorists from issuing orders to potential co-conspirators, in practice, Said says, they serve no purpose other than to make prison a more punitive experience for those convicted of terrorism offenses. “The element of punitiveness and gratuitous cruelty involved in incarcerating and holding terrorism suspects is off the charts. There is simply no way that any of these people, locked in solitary confinement in some remote prison, could coordinate crimes with or without the existence of SAMs,” he says. “There are bad prisons around the world but the idea of a ‘clean version of hell,’ which ADX has been widely described as, is a uniquely American idea.”

Although movements like Black Lives Matter and Solitary Watch are attempting to end some of the harsher practices of the police state, Said writes that exceptional measures taken in terror cases can have ramifications throughout the criminal justice system. “There is a poorly understood creep that is going on between terrorism prosecutions and what you might call ‘ordinary’ criminal cases,” he says. “The number of terrorism cases are small enough to slip under the radar, but it keeps alive the precedent to be used in future against some of the inchoate social movements challenging other aspects of government power.”

Said believes that these judicial and legal practices are enabled by a pervasive sense of fear and racism toward Arab and Muslim defendants. “If you have a funny name and darker skin and are facing charges like this, then really, good luck to you,” he says. “It’s going to be really tough when the government begins drawing all these connections to a jury based on your religion or politics.”

Photo: Courtesy of Wadie Said

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