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TAKING LIBERTIES
This page intentionally left blank
SUSAN N. HERMAN

TAKING
LIBERTIES
The War on Terror
and the Erosion
of American Democracy

1
Oxford University Press, Inc., publishes works that further
Oxford University’s objective of excellence
in research, scholarship, and education.

Oxford New York

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With offices in
Argentina Austria Brazil Chile Czech Republic France Greece
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South Korea Switzerland Thailand Turkey Ukraine Vietnam

Copyright © 2011 by Susan N. Herman

Published by Oxford University Press, Inc.

198 Madison Avenue, New York, NY 10016
www.oup.com
Oxford is a registered trademark of Oxford University Press
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording, or otherwise,
without the prior permission of Oxford University Press.
Library of Congress Cataloging-in-Publication Data
Herman, Susan N.
Taking liberties : the war on terror and the erosion of american democracy / Susan Herman.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-978254-3 (hardback)
1. Terrorism—Prevention—Law and legislation—United States. 2. Internal security—United States.
3. Detention of persons—United States. 4. Electronic surveillance—United States.
5. Civil rights—United States. 6. War and emergency powers—United States.
7. War on Terrorism, 2001–2009. I. Title.
KF9430.H47 2011
344.7305′32517—dc23 2011016285

9 8 7 6 5 4 3 2 1
Printed in the United States of America
on acid-free paper
To Paul, who was with me every step of the way,

with love.
This page intentionally left blank
Contents

Acknowledgments xi

Introduction 3

I Dragnets and Watchlists

1 The Webmaster and the Football Player 23
Material Support of Terrorism 28
The Football Player 32
The Material Support and Material Witness Dragnets 37

2 “Foreign Terrorist Organizations,” Humanitarians,

and the First Amendment 39
The Iranian Democrat 39
Peacemakers and Humanitarians 44

3 Charity at Home 51
The Campaign Against Charities 53
Collateral Damage to Freedom of Religion and Association 61
viii CONTENTS

4 Traveling with Terror 66

Watching the Watchlists 73
Security Theater? 77
The Rights of Others 81

5 Banks and Databanks 86

Financial Institutions as TIPSters 88
Watchlists and the Private Sector 91
Does It Work? 94
Collecting the Dots 95
Why Should I Care?—Privacy and Democracy 98

II Surveillance and Secrecy

6 Gutting the Fourth Amendment 105
The Fourth Amendment and Terrorism 109
“Foreign” Intelligence Surveillance, Americans,
and the Patriot Act 111
Mayfield v. United States Part II 115
The Secret Court and the One-Sided Litigation 116
A Job for Congress and the Courts 119

7 The Patriot Act and Library/Business Records 121

American Librarians 121
Judicial Fumbling 125
Third-Party Records and the Fourth Amendment 130
Reconsidering the “Library Provision” 133

8 Gagging the Librarians 136

The Library Connection 136
Other Librarian Tales 146

9 John Doe and the National Security Letter 150

Why National Security Letters? 153
John Doe and Victor Marrero 155
Loosening the Gag 156
Fourth Amendment Rights for NSL Recipients 159
First Amendment Rights for Internet Users 160
The Inspector General Exposés, 2007–2010 161
 CONTENTS ix

10 The President’s Surveillance Program 165

In the Halls of the Department of Justice 168
The Rubber Stamp Congress 172
Closing the Courthouse Doors 177
Post-FAA Litigation 178
The Secret Court Strikes Again 184
“What Else Is It That We Don’t Know?” 185

III American Democracy

11 Losing Our Checks and Balances: The President,
the Congress, and the Courts 189
The View from the Oval Office—From Bush to Obama
and Beyond 190
The Sleeping Watchdog 195
Secrecy and the Courts 198
The Eclipse of the Courts 202

Conclusion 209
Ordinary Americans and the Constitution 211
Restoring Balance 214

Notes 219
Further Reading 259
Photo Credits 263
Index 265
This page intentionally left blank
Acknowledgments

M
Y HEARTFELT THANKS to my readers and sources, without
whom this book truly would not have been possible: Liz Brandt,
Nusrat Choudhury, George Christian, Ralph Fertig, Paul Gang-
sei, David Gangsei, Erica Herman Gangsei, Lee Gelernt, Melissa Good-
man, George Herman, Jameel Jaffer, Abdullah al-Kidd, Lindy Laub, Mary
Lieberman, Michael Madow, Christopher Man, Brandon Mayfield, Nick
Merrill, David Nevin, Roya Rahmani, Paul Rashkind, Anthony Romero,
Ali Safavi, Erich Scherfen, Steve Shapiro, Jay Stanley, Rubina Tareen, Nel-
son Tebbe, Jennifer Turner, Vic Walczak, and Ben Wizner.
For their invaluable research assistance and support, I am grateful to
Emily Powers, Anita Aboagye-Agyeman, Allison Lack, Tia Clinton, and
Ateqah Khaki, and for their commitment to this project and wise advice, I
thank my agent, Sydelle Kramer, and my editor, Dave McBride.
For academic support and early encouragement, I thank my colleagues
and faculty workshop members at Brooklyn, Cornell, and NYU Law
Schools, and the Brooklyn Law School research stipend program. Thanks
also to Professor Theodore Ruger.
I also want to thank and acknowledge the perceptive early critics of the
Patriot Act, including Rachel King, whose work at the ACLU served as a
template for all who followed, and Russell Feingold, the only senator to
vote against the Patriot Act.
This page intentionally left blank
TAKING LIBERTIES
This page intentionally left blank
Introduction

A
N ACQUAINTANCE, KNOWING of my position as president of the
American Civil Liberties Union, asked me to tell her what the ACLU
was doing these days. “But don’t tell me about that Guantánamo
stuff,” she said. “I’m so sick of hearing about that. Why should I care
about those people when they’re not even Americans?” I started to explain
that the Patriot Act and other post-9/11 antiterrorism measures do affect
Americans, including her, but she waved me off, insisting that all of that
had nothing to do with her.
This woman is not alone is assuming that the War on Terror does not af-
fect law-abiding Americans, or even that all “that Patriot Act stuff” ended
when George W. Bush left the White House. But she is wrong. Her own
rights and those of many other ordinary Americans—and even the democ-
racy she takes for granted—are compromised by antiterrorism strategies
unleashed after September 11, 2001. She could be one of the hundreds of
thousands of innocent Americans the FBI has been spying on using the
broad net of the Patriot Act and supplemental powers; her banker and her
stockbroker, among many others, have collected financial and other per-
sonal data about her to lodge in government databanks, ready to trigger
an investigation of her if the government happens to connect some dot
of information to her dots (even if she’s done nothing wrong); her com-
puter geek neighbor might be one of the innumerable telecommunications
workers and librarians whom the FBI has conscripted to gather informa-
tion on hundreds of thousands of occasions, perhaps about her friends
or acquaintances—and then ordered not to tell anyone anything about
their experience on pain of criminal prosecution; her nephew could be the
computer studies student prosecuted for providing “material support to
terrorists” (a crime punishable by up to fifteen years, imprisonment) be-
cause he served as webmaster for a website posting links to other people’s
hateful comments; her son could be the college student detained and inter-
rogated for packing his Arabic-English flash cards to study during a plane
flight; she could find herself unable to complete an important business or
personal trip because her name was incorrectly placed on a No Fly list,
4 TAKING LIBERTIES

or simply because she has a common name, like “T. Kennedy”; her favor-
ite charity could be shut down for years or even permanently because a
government bureaucrat once decided to investigate it even if the investiga-
tion went nowhere; her generous contribution toward humanitarian relief
might be sitting in government escrow for years instead of reaching the
intended recipients or being returned to her; her doctor’s assistant could
be the young Kashmiri-American who was stopped and searched in the
New York City subways on twenty-one separate occasions even though
the odds of the same person being selected for a “random” search that
often are 1 in 165 million. She might not know the Americans whose lives
were seriously derailed because government agents mistakenly identified
them as terrorists—like the Oregon lawyer who was falsely suspected of
involvement with terrorist incidents in Spain due to an incorrect identifi-
cation of his fingerprint, or the former University of Idaho football player
who was arrested on the pretext that he was needed as a “material wit-
ness” although he was never asked to testify—but post-9/11 policies have
also fostered devastating mistakes like these.
All of these things have happened; all of these things can keep happen-
ing. Should we be willing to tolerate this level of surveillance, intrusion,
and potential error because these efforts are helping to keep us safe? The
beginning of the second post-9/11 decade is a good time to start a serious
reevaluation of our approaches to fighting terrorism and to expose and
question some underlying assumptions that may not be serving us well.
The War on Terror decade has generated a powerful frame for evaluating
government antiterrorism strategies, based on three assumptions: (1) ter-
rorism is an exceptional threat; (2) we need to adapt by giving up rights in
order to be safe; and (3) our strategies for combating terrorism have to re-
main secret so we just have to trust the president, who is best able to oper-
ate in secrecy, to decide what rights we need to give up. This fear-inflected
frame is the very antithesis of constitutional democracy. The time has come
to rattle this frame and return to first principles in reevaluating our course.
In this book, I will not be talking about “that Guantánamo stuff.” Many
other books, articles, and nationwide conversations have agonized about
the legality, constitutionality, and morality of the detention and interro-
gation policies 9/11 tempted us to use against suspected terrorists. Many
scholars and pundits have also criticized the Bush/Cheney Administration
up, down, and sideways for its responses to 9/11. This book is about us and
it is about now. A decade is a long enough time to allow us to step back and
try to look at the whole picture of the costs and benefits of strategies that
 INTRODUCTION 5

were forged during the panicky days right after 9/11. The death of Osama
bin Laden in some respects ended an emotional chapter, perhaps freeing us
to view the costs and benefits of our antiterrorism strategies with a calmer
eye. And more than halfway through Barack Obama’s term is a good time
to disentangle the criticisms of George W. Bush’s policies, many of which
are still with us, from the more personal criticisms of his presidency itself.
It is not surprising that in the weeks immediately following 9/11, the
president and Congress reacted by creating dragnets of all kinds aimed at
investigating and preventing any possible recurrences. They did not know
whether there were terrorist sleeper cells embedded around the country,
how the hijackers had financed their activities, or how Al Qaeda could be
neutralized, but they wanted to find out as much as possible in all these
areas and to be able to take any action that might be productive. A fright-
ened country demanded protection as well as comfort. So the country’s
leaders improvised and adopted a wide variety of emergency measures
that could imaginably discover or thwart terrorists. The prevailing idea at
the time was that we should take aggressive preventive action even if we
didn’t have evidence that a particular action would actually enhance our
safety, as long as there was some chance that it might do so. This attitude
was epitomized by Vice President Dick Cheney’s “1 percent doctrine”: “If
there’s a 1% chance that Pakistani scientists are helping al-Qaeda build or
develop a nuclear weapon, we have to treat it as a certainty in terms of our
response. It’s not about our analysis . . . It’s about our response.”1
Congress’s chief contribution was the USA PATRIOT Act, a rather labored
acronym for an act actually entitled “Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001.”2 This Act was passed a mere six weeks after 9/11, without any
meaningful deliberations or hearings. In retrospect, the assertion that Con-
gress already knew exactly what tools were required to obstruct terrorism
sounds like fear-induced swagger. The contents of the Act matched its over-
confident title. In hundreds of provisions amending previous laws, the Patriot
Act empowered administration officials to spy on anyone, including Amer-
icans, with less basis for suspicion and less judicial review; it stretched and
repurposed criminal laws by allowing prosecution for “material support” of
terrorism even if the person prosecuted did not have any intention of sup-
porting terrorists; it exposed business records, including medical, educational,
and library records, to easy capture by government agents in several different
ways; and it expanded the reach of the Foreign Intelligence Surveillance Act,
initially designed to keep track of Soviet spies, to more easily cover spying on
6 TAKING LIBERTIES

Americans. Many of these provisions threatened privacy; the freedoms of

speech, association, and religion; due process; and equality, but supporters
declared that although this was unfortunate, it was necessary—we have to
give up some of our rights in order to be safe. Only one senator, Russell
Feingold, voted against the Patriot Act and introduced measures to hone its
provisions, questioning the widespread assumption that security and liberty
were contestants in a zero-sum game.3 President Bush provided dragnets of
his own, like a declaration of emergency under which he abruptly seized
the assets of a number of American charities, and the creation of a highly
secret “President’s Surveillance Program” under which the National Secu-
rity Agency conducted surveillance of countless numbers of Americans, in
defiance of the law in existence at the time. Bush and Cheney were as will-
ing to dispense with the Constitution’s checks and balances as its rights for
the sake of combating terrorism, and so the administration repeatedly tried
to minimize the role of Congress and the courts—and the American people
themselves—in formulating or reviewing antiterrorism strategies.
It is understandable if some of those immediate reactions were overreac-
tions. There are many reasons to be skeptical of the decisions made in the fog
of 9/11. First, the course of many of our antiterrorism strategies was set be-
fore anyone had a chance to study the events of 9/11, so antidotes were being
prepared before the disease had been diagnosed. Second, decisions made in
the grip of fear are not likely to be balanced. Third, strategies that may have
seemed plausible as emergency measures in the fall of 2001 could prove, over
time, to be inefficient, too costly (in terms of rights or resources), or even
counterproductive. Finally, short-term emergency sacrifices of rights can be
regarded as a break in our usual patterns. Continuing into a second decade
and beyond, these emergency measures stop being temporary exceptions and
become part of who we are: the New Normal. For these reasons, the 9/11
Commission, which actually did study the causes and consequences of 9/11,
recommended that the executive branch be required to bear the burden of
showing why extraordinary powers conferred after 9/11 should be retained.4
But our approach to counterterrorism strategies has not changed appre-
ciably during the past decade, despite the fact that a new president occu-
pied the White House. President Barack Obama inherited the weapons and
infrastructure of Bush’s War on Terror, along with government employees
who had been engaged in the campaigns, and much of the litigation brought
to challenge the constitutionality of actions like those listed above. Obama’s
rhetoric has certainly been different. He has expressed skepticism about the
misleading “war” metaphor and promised his allegiance to constitutional
 INTRODUCTION 7

values. In his inaugural address he declared, “We reject as false the choice
between our safety and our ideals.”5 And he has disavowed some Bush-era
tactics. His first executive orders promised to close Guantánamo, to impose
limits on harsh interrogation techniques, and to put democracy back on
track by increasing the transparency of government.
Nevertheless, the Obama Administration has explicitly endorsed or
just continued to employ most of the Bush/Cheney post-9/11 strategies
when it comes to the rights of ordinary Americans to be free from unfair
prosecutions and excessive government spying. Obama’s Solicitor General
and Supreme Court choice Elena Kagan, for example, told the Supreme
Court that a Patriot Act–enhanced provision criminalizing the provision
of “material support” to terrorists could properly be applied to prosecute
people who try to persuade terrorist groups not to commit acts of terror-
ism, or even to lawyers filing briefs on behalf of groups the government
believes have ties with terrorism.6 Obama might never actually prosecute
humanitarians or lawyers, but he does want to retain the dragnet power to
do so. Candidate Obama denounced the use of National Security Letters
to gather information about innocent Americans without any court order,
but the Obama Administration has asked Congress to expand the reach of
this power.7 Senator Obama voted in favor of the institutionalization of an
expanded version of Bush’s National Security Agency warrantless spying
program, and in favor of granting immunity to the telecommunications
providers who cooperated with that program even while it was plainly
illegal. Consistently with those positions, the Obama Administration has
defended the constitutionality of that controversial program. Although
President Obama has expressed a greater willingness to share power with
Congress, he sometimes echoes at least some of Bush’s antipathy to mean-
ingful congressional oversight. Obama threatened, for example, to veto a
version of the 2010 intelligence authorization bill in which congressional
Democrats provided for increased oversight of intelligence agencies.8 And
Obama’s Justice Department has continued the Bush effort to sideline the
courts by any means imaginable. His lawyers, for the most part, stick to
the Bush lawyers’ script. They employ the same extreme procedural argu-
ments, including the state secrets privilege and claims of immunity, to tell
the courts that they should not even think about finding executive actions
like sprawling surveillance programs unconstitutional, or finding Bush-era
government officials accountable for illegal actions.
The Obama Administration seems, at least at times, to agree with the
Just Trust Us philosophy that unilateral executive power is acceptable—as
8 TAKING LIBERTIES

long as the people wielding that power act in good faith. President Obama
and his appointees no longer object as strongly to unilateral executive
power as candidate Obama did, because they believe that they truly are
trustworthy. Attorney General Eric Holder, for example, issued a much her-
alded revised policy on use of the state secrets privilege.9 In the extreme
form employed by the Bush Administration, this claim of privilege asserted
that the executive branch rather than the courts should get to decide which
cases the courts must dismiss if the executive branch says that the very
act of litigating a claim would compromise national security. Bush lawyers
had argued, for instance, that the president’s surveillance program was too
secret even to be reviewed by the courts, as was the “extraordinary rendi-
tion” program that led to people being kidnapped and sent to other coun-
tries where they were locked in black holes and tortured. Holder earnestly
announced that his state secrets policy would be different—he would only
claim the privilege where it really is necessary. But he still reserved the op-
tion of not showing the courts the documents on which his assessment is
based.10 Just trust us. We’re different.
The Holder state secrets policy itself is not substantively different from
his predecessors’ policy and, given that the whole point of these privilege
claims is to prevent issues from being openly discussed, we are unlikely
ever to be able to evaluate whether Holder’s application of that policy will
indeed be different. The Holder Justice Department clearly understands
the dangers of unilateral executive power exercised in secret—the policy
announces that the state secrets privilege will not be used to cover up
mistakes—but expects us to be reassured by a solemn insistence that, un-
like their predecessors, these lawyers will not succumb to those dangers.
Plato, in The Republic, uses the myth of Gyges, who discovers a ring that
renders him invisible, to discuss the temptation of those who believe their
actions are invisible to disregard the limits of the law.11 It is unrealistic to
believe that people who have undertaken a noble mission—to safeguard
the American people—will police their means of pursuing that mission
effectively if they also believe that they will not be accountable for their
actions. That is why the Constitution establishes an elaborate system of
checks and balances to provide accountability. But wielding the state se-
crets privilege, invisible government actors claim the power to decide for
themselves when and if they will give up their cloak of invisibility. Thus,
in a case involving eavesdropping without a warrant, Obama Administra-
tion lawyers who were urging the court to dismiss the case on the basis of
the state secrets privilege acknowledged that secrecy can indeed provide
 INTRODUCTION 9

a cover for government misconduct. So the lawyers addressed this prob-

lem by promising the court that the government (under Bush as well as
Obama) really had not committed any misconduct. And they continued
to conceal documents that might have shed light on whether or not that
assertion was accurate.12
It is certainly true that, in some respects, the Obama Administration has
used its weaponry more sparingly and with more circumspection. Bush-
era officials, for example, denied Swiss Islamic scholar Tariq Ramadan a
visa to enter the United States, preventing him from accepting a teaching
position at Notre Dame. Their justification changed so abruptly (Did he
preach or endorse terrorism? Had he contributed to an Islamic charity
with alleged ties to terrorism?) and matched the actual facts so poorly
(Ramadan styles himself as an anti-jihad Islamic reformer) that it began
to seem obvious that this was an ideological exclusion—a McCarthy-like
attempt to keep prickly ideas out of the country. Obama lawyers initially
defended this exclusion in court, but the issue was mooted when Secretary
of State Hillary Clinton issued Ramadan his visa. While other scholars
shared Ramadan’s fate under the Bush Administration, the Obama Ad-
ministration does not seem to be trying to fence out ideas. During the Bush
era, antiwar activists frequently complained that they were being subjected
to special surveillance, harassment, or other retaliation because they ex-
pressed their dissenting views in ways that are supposed to be protected
by the First Amendment.13 Comparable complaints about misuse of anti-
terrorism powers against dissenters or political opponents have not been
leveled against the Obama Administration.14
It is still too early to assess to what extent the Obama Administration
will manage to avoid the mistakes and abuses of Bush Administration
officials in implementing antiterrorism laws—like the prosecution of a
University of Idaho graduate student for posting links on a website, or the
FBI’s persecution of Oregon lawyer Brandon Mayfield, who was suspect-
ed of involvement in the Madrid train bombing even after it should have
been apparent that he was completely innocent. But tools as powerful as
those in the post-9/11 arsenal are dangerous no matter who wields them.
Dragnets, especially when used in secret, will sweep in people who are not
the intended targets—people who are innocent but who suffer collateral
damage. When broad discretionary powers are delegated to thousands
of government agents, it is inevitable that there will be serious lapses of
judgment somewhere along the chain. George W. Bush did not tell the
FBI to arrest Brandon Mayfield. And not every Transportation Security
10 TAKING LIBERTIES

Administration (TSA) or FBI agent will exercise discretion in the same way
Barack Obama or Eric Holder would.
Furthermore, many of the Patriot Act–enhanced statutes do harm even
when they are not called into play. Dragnet laws that make it possible
to prosecute other webmasters, or to prosecute humanitarians who come
too close to members of a designated “terrorist” group while they are dis-
tributing aid, abridge our First Amendment rights by their very existence.
They cause people to think twice about whether to engage in speech or
association that might draw unwanted government attention or suspicion.
Laws that threaten nonprofit charities and foundations with the possibility
of being blacklisted and having their assets unceremoniously seized, on the
basis of secret hearsay evidence, discourage people from exercising their
First Amendment right to choose their associations and to fulfill their re-
ligious obligations by contributing to charities of their choice. Overbroad
surveillance laws deter people from speaking freely on international calls,
even if they are talking to their attorney or an investigative journalist,
making it difficult for lawyers and reporters to do their jobs. Laws that
require schools, hospitals, and libraries to turn over sensitive records to
the government undermine relationships of trust and cause people to think
twice before sharing information that might be needed to help them.
The immediate emergency after 9/11 was to apprehend and neutralize
members of Al Qaeda. But the War on Al Qaeda quickly morphed into
a generalized War on Terror. Many Patriot Act and other tools that may
have seemed acceptable approaches to dismantling Al Qaeda and its direct
threat to Americans on American soil are not actually limited to that goal.
The emergency-inspired antiterrorism laws I will describe apply in full
force to dozens of other government-designated “terrorist” groups, rang-
ing from Hamas to Turkish Kurds to pro-democracy activists in Iran. And
some of the post-9/11 expanded powers have already been prey to mission
creep. Patriot Act–authorized “sneak and peek” warrants, dispensing with
notice that one’s premises have been searched, were used 763 times in fis-
cal year 2008, but only 3 of those cases involved terrorism investigations.15
When a Patriot Act anti-money-laundering provision was used to investi-
gate the owner of a Las Vegas strip club for bribery, Nevada Senator Harry
Reid remarked: “The law was intended for activities related to terrorism
and not to naked women.”16 Once we become accustomed to lowering our
baselines—of what counts as an acceptable level of surveillance, or a toler-
able criminal law, for example—it is all too easy for us to endorse the use
of increasingly familiar tools against anyone, not just a suspected terrorist,
 INTRODUCTION 11

but a tax evader or a racketeer. And the Constitution is downsized another

notch to accommodate another law enforcement strategy.
Legal historian Geoffrey Stone reminds us that Americans have, in the
past, overreacted during times of war or crisis—our shameful treatment of
West Coast Japanese-Americans during World War II, our war on an ideol-
ogy during the McCarthy era—but observes that after the emergency ends,
we generally regret what we have done and are able to regain our balance.17
But when does the emergency of terrorism end? Unlike a conventional
war, the “War on Terror” has no natural end point. As Barack Obama
has recognized, terrorism is a tactic. We cannot end this metaphorical war
by signing a peace treaty with Al Qaeda and dozens of other groups we
list as terrorists. Are we willing to countenance a second decade of emer-
gency reactions that are more costly to our rights and to our democracy
than most Americans realize? The time has come to decide whether these
weapons are truly consistent with our Constitution’s foundational princi-
ples, rather than just trusting that the current president will use them more
wisely than his predecessor. As Justice Robert Jackson so memorably said
in the Korematsu case, dissenting from the Supreme Court ruling allowing
over 100,000 loyal Japanese-Americans to be removed from their homes
because the government said it was impossible to distinguish a few disloyal
individuals, once we opportunistically revise a constitutional principle,
“[t]he principle then lies about like a loaded weapon, ready for the hand of
any authority that can bring forward a plausible claim of an urgent need.
Every repetition imbeds that principle more deeply in our law and thinking
and expands it to new purposes.”18
Those who trust Barack Obama more than they trusted George W. Bush
should bear in mind that there will be other presidents after Obama. The
level of trust in a particular administration can indeed affect the extent to
which people will fear being arrested or investigated for exercising their
rights. But future presidents will inherit the Bush-era arsenal of weapons
unless we persuade Obama and Congress to disarm or retrofit some of the
undesirable ones now, and those presidents may be less sensitive to consti-
tutional values than a former Constitutional Law professor.
Whatever one’s personal views of Barack Obama, it seems surprising
that at a time when, according to public opinion polls,19 three-quarters
of the American people distrust the federal government, we are willing to
trust that same government to strike the right balance between our cher-
ished constitutional rights—indeed, our democracy itself—and national
security. Why is this so? One reason is certainly that most Americans do
12 TAKING LIBERTIES

underestimate the costs of our antiterrorism programs—in privacy, liberty,

fairness, and equality as well as in resources. This is partly because so
many of those costs are invisible behind the wall of secrecy; because the
laws involved are dauntingly complex and hard to comprehend; and be-
cause it is difficult to put together a complete picture just based on periodic
news stories about particular incidents or debates. I am writing this book
to offer a more complete and coherent account of those costs.
A second reason there has not been more resistance is undoubtedly that
many Americans believe that these laws and policies will not cause them
much inconvenience if they are not Muslims or Arabs. As the following
chapters will show, many of our post-9/11 strategies do have a significant
impact or potential impact on a large number of people regardless of their
religion or ethnic origin. But it is true that the most substantial costs of our
antiterrorism campaign have fallen on Muslims and Arabs, whether they
are American citizens or not. Muslim-Americans are more susceptible to
being prosecuted even if they are innocent, to being prevented from return-
ing to their homes in the United States because they are incomprehensibly
included on a No Fly list, to having their banks inexplicably decide to close
their accounts, or to having their legitimate charities put out of business.
Muslim-Americans are Americans, even if their names or religious
practices seem unfamiliar to many, and they have the same constitutional
rights as all other Americans. But as shown by the recent controversy over
the New York City mosque planned for a site near the World Trade Cen-
ter, Muslims are readily stereotyped as terrorists or potential terrorists be-
cause the 9/11 hijackers were Muslims. Rationally, everyone should know
that the vast majority of the millions of Muslims in the United States are
law-abiding people who have nothing to do with terrorism. Rationally,
everyone should understand that targeting all Muslims, or any Muslim
who happens to be within sight, is a remarkably ineffective and probably
counterproductive way to fight terrorism. But emotionally, many Ameri-
cans are suspicious of Muslims generally and so are willing to countenance
treating any or all Muslims as suspect.20 This stereotyping is unjustifiable
and un-American. Earlier waves of immigrants, whether Irish, Italian, or
Jewish, also met hostility and discrimination. During the post–World War
I Palmer Raids, thousands of Russian and Eastern European immigrants
were arrested, prosecuted, deported, and sometimes abused because Attor-
ney General Mitchell Palmer thought that because some anarchists were
immigrants, it was logical to assume that any immigrant (people whom he
described as looking “sly and crafty”) might be an anarchist.21 We should
 INTRODUCTION 13

be able to learn from our history that when we assume guilt by association,
when we target groups of people because of their religion or ethnicity, no
good is accomplished and we are later ashamed. The Equal Protection
Clause of the Fourteenth Amendment, added to the Constitution after the
Civil War to prevent the freed slaves from being abused because of their
race, embodies our commitment to treating every person as an individual
rather than solely as a member of a racial, ethnic, or religious group. The
American tradition of tolerance goes back to the original framers of the
Constitution in the eighteenth century. Benjamin Franklin, for example,
writing in his autobiography about the nonsectarian nature of a church in
Philadelphia, said that “even if the Mufti of Constantinople were to send
a missionary to preach Mohammedanism to us, he would find a pulpit at
his service.”22
An additional reason we have been just trusting the president is that the
last ten years have inculcated in many Americans a sense that we cannot
know enough to make the policy decisions about how much surveillance
is too much or whether particular security programs work. While it is cer-
tainly true that the rigors of secrecy make it difficult for us to assess what
benefits we may be getting from broad material support laws, wholesale
surveillance, or massive data banking, for example, there is no good rea-
son why the American people cannot be included in the decision-making
process to a greater degree than we have been so far. We, the people, have
been excluded by excessive claims of secrecy and infantilized by the Just
Trust Us approach. The other side of the Just Trust the Government coin is
distrust of the American people. In the chapters to follow, I will document
how antiterrorism laws are built on lack of faith in the American people,
with our leaders positing that we can’t be trusted to evaluate hateful ideas
for ourselves, that we can’t be trusted to talk to a terrorist, that we can’t
be trusted to form our own opinions about the wisdom of antiterrorism
measures. This is not American democracy.
Some might contend that we accept this diminished, antidemocratic
role because Americans have become generally disengaged and passive and
do not expect to be able to control the government. If this is true, it is a
dangerous pattern and one that we, like many of the people I will describe
in the book, should resist vigorously. In addition to fighting apathy, we
also battle powerful psychological forces when we confront the question
of what to do about terrorism and rights. Fear of terrorism makes it dif-
ficult for us to be rational and easy for us to hope that the government
actually does know better than we ever could how to protect us. And so
14 TAKING LIBERTIES

we may not really want to learn that the government’s promises to keep us
safe are inflated or that particular tools vaunted for their ability to obliter-
ate terrorism don’t amount to much more than dearly bought magic beans.
Because we prefer, or maybe even need to believe that we can buy se-
curity by squandering our liberty, contrary information may bounce right
off of us. Linguist George Lakoff tells us that a frame on an issue, once
embedded, can trump facts.23 The War on Terror frame has us start with
the assumption that we are unsafe unless we give up some of our rights
and, conversely, that giving up some of our rights is likely to make us safer.
Beginning with that premise, people have been willing to trust the New
York City Police Department, for example, when it declares that random
searches of backpacks in the subway will deter terrorists. We want it to
be true, and so perhaps we, like the court finding the program to be con-
stitutional, don’t want to ask too many hard questions. Will this program
really prevent terrorism if any terrorist can simply walk away and enter
the subway at a different stop? Shouldn’t we be concerned if it seems that
the program, despite contrary assurances, involves racial profiling of peo-
ple with brown skin who look Muslim or Arab? I have heard people say
that they don’t actually think the New York City subway search program
is an effective way to prevent terrorism, but it still makes them feel safer.
After a decade of watching antiterrorism measures being instituted and
listening to assurances that they are effective—usually with little or no
evidence offered to back up those assertions, on the excuse that both our
successes and failures must be kept secret—are we willing to ask hard
questions about whether those programs are really effective, cost-effective,
or counterproductive? Or are we so anxious that we will accept placebos,
even if they have serious side effects? Are we willing to play our intended
role in a constitutional democracy, or do we prefer to let the president
decide what’s best for us?
Democratic distrust is not ad hominem. It extends equally to George
W. Bush, Barack Obama, and every one of their successors. The Constitu-
tion is a very distrustful document. Under its hydraulic system of checks
and balances, presidents are rarely allowed to make important decisions—
like appointing a Supreme Court Justice, entering a treaty, or declaring
war—without participation by Congress. The courts then provide an es-
sential check if the president and Congress are not respectful enough of
our rights. But during most of the War on Terror decade, Congress has
remained passive, letting the president make too many key decisions uni-
laterally and allowing the executive agencies to police themselves. As the
 INTRODUCTION 15

examples I will give clearly show, this is a mistake, just as the Constitu-
tion predicted. Discretionary powers exercised in secret, without sufficient
oversight, are easily subject to abuse and, as I will document, have in fact
been extensively abused.
And the courts have allowed themselves to be muzzled, an even graver
mistake. In fact, the courts have actively collaborated in keeping them-
selves from speaking out on behalf of our rights. Although the Supreme
Court decided a series of historic cases questioning the president’s and
then Congress’s detention policies (“that Guantánamo stuff”), the Court
simply declined to hear case after case where Americans complained that
our own rights are being compromised by excessive secrecy and overzeal-
ous antiterrorism strategies—the issues I will be discussing in this book.
The lower federal courts have hidden behind a dizzying array of proce-
dural excuses for refusing to consider constitutional claims about issues
affecting us. A number of courts have declared that no one has standing—
that is, the right to bring a lawsuit—to challenge eavesdropping programs
unless they can prove that the government has been listening to their own
telephone calls or intercepting their own e-mails. This is a true Catch-22,
when the whole point of secret surveillance is that the target is unaware of
being the target. Accepting this definition of standing amounts to bench-
ing the courts. Executive branch demands for secrecy have compromised
litigation in many cases and wholly precluded it in others, as courts have
accepted radical standing, governmental immunity, and state secrets priv-
ilege arguments. Courts have allowed the government to conceal key doc-
uments from the lawyers on the other side and sometimes from the court
itself, and even conspired to keep the very existence of entire cases a secret.
The Supreme Court refused to decide any case about the domestic im-
pact of antiterrorism strategies until 2010. And then, in the case of Holder
v. Humanitarian Law Project,24 the Court essentially just deferred to the
government’s assertions that the dragnet law in question (a broad material
support law) was useful enough to warrant elbowing the First Amendment
out of the way.
This book will show how ordinary Americans have been affected by
the War on Terror by having our own rights and privacy compromised,
by being deterred from exercising our collective right to free speech and
association, and by having our democracy skewed. Aspects of a number
of these stories may be familiar to some from news accounts over the
years. But it is critical to put together the pieces of this puzzle to see the
full picture and to observe the themes that emerge: the pitfalls of excessive
16 TAKING LIBERTIES

secrecy, the consequences of abdication by Congress and the courts, and

the enduring wisdom of the Constitution’s prescribed methods for protect-
ing our rights. It should also be noted that these stories are only the tip of
an iceberg of consequences. I will discuss, for example, six people—four
librarians and two Internet service providers—who challenged a particular
form of surveillance called the National Security Letter. Hundreds of thou-
sands of National Security Letter requests have been served since 9/11 but,
because of draconian gag orders built right into the statute, the public only
knows the stories of these six intrepid individuals. The people involved in
the hundreds of thousands of other instances apparently caved in to the
government’s demands to turn over sensitive records about their clients or
patrons without any court order and never to mention the experience to
anyone, and so we don’t know what they might have to say. Secrecy pre-
vents us from fully assessing costs—as well as benefits—and also means
that we often cannot see the features of the people adversely affected by
our policies, even when we know they exist. The stories that can be told
and woven together at this point are not a complete history, but they are
troubling enough to cause concern and to help us visualize what else might
be behind the curtain.
I also want to stress that many of the people whose stories I will tell are
not just victims. In a decade when all three branches of government failed
to safeguard our constitutional values, ordinary Americans—librarians
like George Christian of Library Connection of Connecticut, Internet ser-
vice providers like Brewster Kahle of the Internet Archive and another
patriotic litigant who spent over six years identifiable only as John Doe, as
well as military leaders, social workers, journalists, administration officials
who made the difficult decision to share their concerns about runaway
programs with reporters, even local governments—rose up to do the job
the Constitution expects “the people” to do—to be the government and to
defend our constitutional birthright.
My interest is not in flogging the Bush Administration for its errors or
indulging in schadenfreude. My focus is primarily on powers and potential
problems that are still in play as I write. Unlike Andrew Bacevich25 and
some others who have written damning critiques of the Bush Administra-
tion’s War on Terror, I do not seek to portray 9/11 as a convenient excuse
for people who wanted to aggrandize executive power for their own self-
ish reasons. There are many other reasons why presidents and government
officials of good faith who do believe in constitutional values are willing to
seek overinflated executive powers when it comes to national security. It is
 INTRODUCTION 17

these natural pressures I am interested in exploring, rather than engaging

in ad hominem attacks.
Several caveats: First, I do not claim to be an expert on how to defeat
terrorism. After more than three decades of studying, teaching, and writ-
ing about the Constitution and more than two decades working closely
with the ACLU, I think I can claim some expertise on the subject of civil
liberties. My perspective is from the civil liberties side of the scale, but that
doesn’t mean I do not understand that these issues can look different from
the point of view of the president and Congress, as we hold them responsi-
ble for our protection and blame them if they fail. If my views tilt toward
the civil liberties side of the balance, I hope to counteract the constant
pressure on our elected officials to tilt to the other side and look to short-
term pragmatism (including the results of the next election) rather than to
our long-term values. It is not my purpose—or within my competence—to
judge which antiterrorism techniques are or are not effective, but I will
point out places where experts seem to question our current assumptions
about what is effective, because these are the very places where the judg-
ment of the American people should be invited. I am not prescribing any
specific antiterrorism program, but I am inviting all Americans to play a
more significant role in the process of deciding whether we need to correct
our course. My criticism is primarily skepticism, and my goal is primarily
the central goal of the Constitution: to make sure that important policy
decisions are made by the right decision-makers.
Second, although I am proud to serve as president of the ACLU and I
rely heavily on the admirable work of ACLU lawyers and staff members
both in information gathering and analysis, this book is intended to reflect
my own views, which are not necessarily those of the ACLU in all respects.
But with the ACLU, I believe that the constitutional concerns I raise go be-
yond partisan politics. There are many areas where libertarians and civil
libertarians share concerns about excessive secrecy, excessive surveillance,
and unconstrained government power. Conservatives like Bruce Fein26
agree with people to their left on the political spectrum, like Anthony
Lewis,27 that during the War on Terror decade we have lost our balance
and jeopardized our constitutional heritage. The heroes I will describe,
those who stood up for constitutional rights and American tradition, in-
clude Democrats like Russell Feingold, the sole opponent of the Patriot
Act in the Senate, and also libertarians like Ron Paul, who has fought
intrusive security measures like bodyscanners at the airport,28 and whose
supporters formed a group to oppose the reelection of any members of
18 TAKING LIBERTIES

Congress, no matter what their party, who voted to confer immunity on

the telecommunications companies that had collaborated with the Bush
Administration’s illegal surveillance program.29 Steven Bierfeldt, Develop-
ment Director of the Campaign for Liberty, an outgrowth of Ron Paul’s
presidential campaign, became an ACLU client when he was detained at
the St. Louis Airport because he was traveling with a quantity of cash con-
nected with his work.30 Like the ACLU, the Cato Institute has consistently
critiqued government overreaching in antiterrorism efforts as unconstitu-
tional and ineffective. In a foresightful 2002 Cato article called “Breaking
the Vicious Cycle: Preserving Our Liberties While Fighting Terrorism,”31
Timothy Lynch argued that lawmakers have developed a destructive pat-
tern of restricting additional civil liberties after every terrorist incident
without ever stopping to examine whether earlier hastily adopted restric-
tions have proved to be effective. “We can either retain our freedom,” the
article said, “or we can throw it away in an attempt to make ourselves
safe.” A 2010 book edited by Cato staff, entitled Terrorizing Ourselves:
Why U.S. Counterterrorism Policy Is Failing and How to Fix It,32 updates
and elaborates on the concerns raised in that article, arguing that politi-
cians are manipulating fear for political purposes and that we are defeat-
ing ourselves by succumbing to fantasies about the nature of and cures
for terrorism.
One book cannot examine all facets of the issues I raise. Because I
am focusing on the rights of Americans, I will not examine the particular
impact of antiterrorism measures on non-Americans, an important topic
eloquently discussed by David Cole.33 And because admirable books, in-
cluding Geoffrey Stone’s, examine our history of respect for civil liberties
in times of emergency or war, I will not try to repeat that work by spending
any significant amount of space on historical context.
What I do aim to do is to correct the lack of balance in our perceptions
of the War on Terror by showing how innocent Americans have been pros-
ecuted, incarcerated, blacklisted, watchlisted, conscripted as antiterrorism
agents, spied on, and gagged. Part I, “Dragnets and Watchlists,” will de-
scribe post-9/11 measures, starting with material support laws, that have
a substantial effect on First Amendment rights of free speech, free associ-
ation, and free exercise of religion, as well as on due process and equal-
ity. In addition to criminalizing and deterring protected speech, these laws
deprive those charged of due process, minimize the role of juries, threaten
humanitarians with prosecution for providing aid in troubled parts of the
world or even, paradoxically enough, for trying to talk terrorist groups
 INTRODUCTION 19

into abandoning their violent tactics. Among those already affected by

prosecution under these elastic material support laws, as I will describe,
are the Idaho webmaster already mentioned, and an Iranian woman who
was granted asylum in the United States after she had been brutally pun-
ished for supporting a pro-democracy group in Iran and then found herself
prosecuted by the United States for supporting the same group. Next, I
will discuss the presidential emergency program allowing the government
to seize a charity’s assets, with no notice or hearing, which turned into a
campaign against Muslim charities, an attack on the freedom of religion,
and a serious threat to other nonprofits—all based on a declaration of an
emergency now going into its second decade. The first section will con-
clude with a discussion of security systems, including watchlists used at the
airport and by “financial institutions,” and then an examination of how
businesses have been enlisted as antiterrorism enforcers and data collec-
tors for government databanks.
Part II, “Surveillance and Secrecy,” will describe the damage post-9/11
surveillance measures have done to privacy and to essential principles
of the Fourth Amendment, our constitutional protection against unrea-
sonable searches and seizures. This section will tell the story of Brandon
Mayfield, the American citizen living in Oregon who was ensnared by the
Foreign Intelligence Surveillance Act, and the stories of businesses, librar-
ians, and Internet service providers who tried to protect their customers’
and patrons’ records and found that during the War on Terror decade
they had to fight just to get to talk to Congress or a court about whether
their constitutional rights were being violated. Finally, I will explore the
dramatic story of how President Bush tried to keep either Congress or
the courts from reviewing the wisdom and constitutionality of a massive
eavesdropping program involving the National Security Agency, and how
Congress and President Obama have followed suit.
Part III, “American Democracy,” will discuss what we can learn from
the failure of all three branches of the federal government to protect
constitutional rights during the War on Terror decade. Any president—
Bush, Obama, Lincoln, or Roosevelt—will be tempted to err on the side
of choosing dragnets and secrecy. Congress has learned something about
the importance of oversight in the past decade but is still unlikely to act
as a needed check on presidential power. The courts, with a few nota-
ble exceptions, have failed to play their expected role of pushing back
against governmental programs that compromise rights and democracy.
This section will also discuss the impact of secrecy on the courts, and on
20 TAKING LIBERTIES

our First Amendment right of access to judicial proceedings. In conclu-

sion, I will ask what we can learn from our own history and from other
countries in recharting our course—by examining not just what mistakes
we have made, but how in the past we or our counterparts have succeed-
ed or failed in changing course after straying because of perceived emer-
gencies. My conclusion comments on the Constitution’s multiple strategies
for self-preservation, including a wide range of both familiar and lesser
known rights, checks and balances, and even the structures of federalism.
And the foremost and ultimate protection of our democracy is what the
Preamble’s opening describes as the real government of the United States:
ordinary Americans.
I.
DRAGNETS
AND WATCHLISTS
This page intentionally left blank
1.
The Webmaster and the Football Player

They were doing things I didn’t ever think government agents

would do.—Liz Brandt, University of Idaho Law School (2010)

What angers me most is that these are resources that could be

spent pursuing real bad guys.—David Manners, former CIA station
chief for Jordan (2004)

The part that surprised me was when I read the First Amendment
instructions.—John Steger, Idaho juror (2004)

J
OHN STEGER, a retired Idaho forest worker, did not expect that he
would be sitting in judgment on the Patriot Act or on the First Amend-
ment when he was called for jury duty in April 2004. The case he
was assigned to hear was a criminal prosecution against Sami Omar
al-Hussayen, a thirty-four-year-old University of Idaho doctoral student
whose Saudi name and origins must have seemed exotic in Idaho, a highly
conservative state where Arabs make up less than two-tenths of 1 percent
of the population.
Sami, who was in the country on a student visa, had been living in
Moscow, Idaho (population about 20,000), for five years, along with his
wife, Maha, and their three young boys while he worked toward his degree
in computer studies. As a Muslim student leader, Sami had led a candle-
light vigil on the Idaho campus shortly after 9/11, condemning the attacks
as an affront to Islam. His neighbors knew him as a gentle man, the last
person anyone would suspect of terrorist sympathies. But Sami was on
trial for providing “material support” to terrorists because he volunteered
as a webmaster for the Islamic Assembly of North America, a Michigan-
based organization, among other groups. The Islamic Assembly described
its websites as designed to “[s]pread the correct knowledge of Islam; [and]
[w]iden the horizons and understanding . . . among Muslims concerning
24 DRAGNETS AND WATCHLISTS

different Islamic contemporary issues.”1 To serve this educational mission,

Sami had set up links so that people could look at a wide variety of sources
firsthand, including some anti-American speeches, articles, and “fatwas”
(interpretations of Islamic law by Muslim clerics) that advocated crimi-
nal activity and suicide operations. Sami said that he didn’t himself know
what all the sources said, as he did not read them all—he was just posting
links, like a journalist reporting what others have said.
Why had the government focused on Sami? One of the Bush Adminis-
tration’s immediate post-9/11 ideas about how to prevent terrorism was
to disrupt terrorism-financing networks. Sections of the Patriot Act and a
September 2001 Executive Order aimed to starve terrorists by going after
the donors and networks that supported them. Suspecting that terrorism-
financing networks existed within the United States—there was talk of a
pipeline of money flowing from Brooklyn mosques to Al Qaeda—govern-
ment agents set out to discover who was running those networks. It was
certainly no coincidence that Sami was a Muslim and worked with an
Islamic charity. Islamic charities were a prime focus of the government’s
attention. But although, as chapter 3 will recount, many other Muslim
charities were put on government watchlists or simply put out of busi-
ness, the Islamic Assembly was not on any watchlist. Other Patriot Act
provisions allowed the government to study Sami’s banking records, and so
the FBI also learned that he had made substantial contributions to Islamic
charities.2 Of course, giving generously to charity is a religious obligation
for all faithful Muslims, just as it is for observant Catholics and Jews.
As it turned out, the agents were looking too hard. The FBI misinter-
preted various facts as conforming to their theory that Sami was a terrorist
mastermind. For example, investigators hypothesized that Sami’s studies
were really just a cover for his coming to the United States to raise money
for terrorists. As support for this suspicion, they pointed to the fact that
he had switched dissertation advisors in the middle of the school year—an
unusual thing to do and a sign, they concluded, that he was stalling and
that his dissertation was fictitious. But the actual reason Sami switched
advisors was that his initial advisor was battling cancer. He found a new
advisor so that he could finish his dissertation on schedule. Sami, a serious
student who was maintaining a 3.8 average, was only a few months from
completing his dissertation when the FBI entered his life.
Having focused on Sami, the government agents pulled out all the stops
to come up with evidence to support their theory. Using yet another Patriot
Act expansion of authority, they got the Foreign Intelligence Surveillance
 THE WEBMASTER AND THE FOOTBALL PLAYER 25

Court to let them tap Sami’s phone and to review his e-mails—even though
they did not have probable cause to believe that he had committed any
crime. Over the course of a year, they intercepted about 10,000 telephone
calls and 20,000 e-mails involving Sami, his wife, and his family. In this
context too, agents misinterpreted innocuous information, perhaps due to
mistranslations. For instance, during one telephone conversation, Maha
told a friend of her delight on discovering that a Kraft cheese product her
children had enjoyed in Saudi Arabia was also available in Idaho. This
comment was taken as evidencing an anti-American attitude—that the
only thing she liked about America was Kraft cheese.
Despite the mountain of information the FBI gathered about Sami,
they evidently did not come up with any concrete evidence to show that
the organizations with which Sami was associated were financing terror-
ism or that Sami approved of terrorism—no less supported it. Therefore,
when Sami was arrested, he was not arrested on terrorism or even mate-
rial support charges. He was arrested for immigration fraud, charged with
lying on his student visa forms. According to the government, Sami lied
in saying that he had come to the United States “for the sole purpose of”
study and not to work—a promise they said was violated by his webmas-
ter duties. Second, the government alleged that Sami had not complied
with a post-9/11 requirement that men3 entering the country provide the
government with a list of organizations to which they belong or which
they support4 because he had not listed the Islamic Assembly. According to
Sami’s lawyers, this was the first time anyone had ever been charged with
a crime for not telling the government about their volunteer charity work.
Sami’s arrest in February 2003 sent shock waves through the univer-
sity town. As many as a hundred federal, state, and local officials stormed
the Idaho campus at 4:00 a.m., wearing flak jackets and brandishing large
weapons. One frightened child in a family housing unit next to Sami’s, on
seeing the swarm of armed agents, screamed, “Mommy, the war is starting!”
Idaho, founded as a land-grant school, attracted students from the Middle
East and developing nations who came to acquire skills in areas like agri-
culture and engineering, and so there were some 175 to 200 Arab students
enrolled at that time. In addition to waking Sami and his family, agents rang
the doorbells of all of the other Arab students at Idaho—referring to them
as Sami’s “associates”—to question them about whether they knew any-
thing about terrorism or terrorism financing. This started at about 5:00 a.m.
and continued until all had been questioned. These students reported being
threatened with jail or deportation if they refused to answer questions; one
26 DRAGNETS AND WATCHLISTS

reported being interrogated for seven hours. Dragnet interrogation of Arabs

and Muslims was one technique the FBI adopted after 9/11, questioning
thousands of people who were not actually suspected of anything—except
of possibly knowing other Arabs and Muslims.5 Immigration status—these
students were dependent on their student visas—was a useful lever for get-
ting people to submit to questioning they otherwise would have had a right
to decline.
No one other than Sami was charged with anything. Liz Brandt, a
member of the faculty at Idaho’s law school who found herself enlist-
ing lawyers for the interrogated students to consult, recalls that the event
was promoted to the media as the successful discovery of a sleeper cell
in Idaho. Attorney General John Ashcroft fed that impression, describing
Sami as part of a “terrorist threat to Americans that is fanatical, and it is
fierce.”6 People who did not know Sami, Brandt says, tended to trust the
government and to assume that Sami “must have done something really
wrong.” But, she adds, people who knew Sami never believed that he could
be guilty of supporting terrorism. “When I heard the charges, I thought,
this just can’t be. It was like a War of the Worlds hoax.”
The prosecutors argued that Sami was so dangerous that he should be
denied bail pending his trial. But the federal magistrate judge who reviewed
their arguments was not persuaded. Sami, who had been living a peaceful
life with his family, did not seem likely to flee. The entire family was com-
pletely integrated into the community. The boys, ages nine, six, and three
at the time, attended local schools and played soccer and skateboarded
with neighboring children. Sami worked with food banks and an orga-
nization supporting military families. Maha had developed close friends.
(After Sami’s arrest, the community formed a “protective shell” around the
family, says Liz Brandt. Maha did not know how to drive, so neighbors
regularly took her to the supermarket, for example, and everyone worked
hard to soothe the children, who were traumatized by their experience and
by seeing their father in jail.)
The magistrate judge ordered that Sami be allowed to await the trial
at home. Instead of releasing him, however, the government tried an-
other tack. The day after the federal magistrate judge ordered him freed,
the government asked an immigration court judge to order that Sami be
deported (on the theory that he was working in addition to studying)
and to lock him up until his deportation. The immigration judge agreed,
ordering that Sami be held pending his deportation and so Sami spent
seventeen months incarcerated, in solitary confinement, locked in his cell
 THE WEBMASTER AND THE FOOTBALL PLAYER 27

for twenty-three hours a day while awaiting his trial. Immigration charges
were also brought against Maha, whose immigration status was dependent
on Sami’s. As bewildered and shocked as Sami was by the charges against
him, he told his lawyer, “They can do whatever they want with me. They
can put me in prison for the rest of my life, but not my wife and children.”
Maha agreed to “voluntarily” return to Saudi Arabia in exchange for the
government’s agreement not to lock her up too. In November 2003, she
was given three months to leave the country. This agreement was designed
to allow her to remain in the country during Sami’s trial. But when the trial
was later postponed for several months, the government refused to allow
Maha and the children an extension. Sami therefore had to face the rest of
his time in jail and the ordeal of a nine-week felony trial without his fam-
ily. He occupied himself in jail by working on his dissertation, still hoping
that he would be able to complete his degree.
Over a year after Sami’s arrest, the government decided that it had
enough evidence to add terrorism-related charges—based on the material
support laws—to the immigration charges. The indictment now alleged
that the website Sami worked on encouraged contributions to Hamas, a
Palestinian group blacklisted as a “foreign terrorist organization.”7 (The
government’s theory about which terrorists Sami was supporting shifted
more than once, from Al Qaeda to Hamas to Chechnyan rebels.) Using the
broad net of the Patriot Act, the government charged Sami with the crime
of providing “expert advice or assistance” to terrorists.8 Sami did have
expertise in computer studies. But had he actually provided material sup-
port to Hamas or any other terrorists? The government’s view was that all
the jury needed to believe to convict Sami was that he had used his expert
skills as a webmaster in a manner that would enable people to encounter
hateful ideas, perhaps be persuaded, and perhaps then offer their support.
The potential sentence Sami faced was up to fifteen years on each of three
terrorism-related charges, and up to twenty-five years on each immigration
fraud charge.
In an opening statement at trial, prosecutor Kim Lindquist told the
jury that Sami was supporting terrorists in Israel, Chechnya, and other
locations through a network of websites used to recruit terrorists, to raise
money, and to spread incendiary rhetoric. Juror John Steger’s first reaction:
“When he got done, I thought, this guy’s going to be in jail for life.”
As Sami’s lawyer, David Nevin, pointed out, however, the government’s
theory was so broad that it ran up against the Constitution’s guarantee of
freedom of speech. The First Amendment had been interpreted to prohibit
28 DRAGNETS AND WATCHLISTS

prosecuting people for advocating ideas unless their advocacy is intended

to and is likely to incite imminent unlawful action—the so-called Branden-
burg doctrine.9 If Sami could be found guilty of a crime for posting fatwas
on a website, Nevin argued, CNN could also be found guilty for airing
speeches by Osama bin Laden.10 Ironically, an Israeli terrorism expert who
served as a prosecution witness testified at the trial that he himself had
posted much of the very same material on his own website,11 as had the
BBC on its website. A lot of people were interested in knowing how jihad-
ists explained themselves. Nevin asked the judge to dismiss the prosecution
on the ground that it violated the First Amendment. The judge denied the
motion, saying that an opinion explaining this decision would follow. No
opinion ever followed.

Material Support of Terrorism

The law that was used against Sami had become progressively more hos-
tile to First Amendment values. The first material support law, enacted in
1994,12 made it a crime to give terrorists concrete assistance like weapons
or cash. That statute contained several critical exceptions: (1) people could
not be prosecuted for humanitarian assistance, like providing medical care,
to someone “not directly involved in such violations”; and (2) investiga-
tions could not be initiated on the basis of “activities protected by the First
Amendment, including expressions of support or the provision of financial
support for the nonviolent political, religious, philosophical, or ideological
goals or beliefs of any person or group.”13 If someone supported a group
that engaged in both terrorist and nonterrorist activities—like running a
nursery school—the prosecution could only get a conviction by showing
that the accused intended to support terrorism and that there was an actual
connection between the donation and terrorist activities. And people could
not be targeted on the basis of their religion or their associations.
Looking back, that was the legislative equivalent of a baby step. The
first major expansion of this material support statute was signed into law
by President Bill Clinton in 1996 as part of the Antiterrorism and Effective
Death Penalty Act of 1996—a response to the Oklahoma City bombing.
This revision spared prosecutors the burden of showing intent to promote
terrorism and of showing how terrorist organizations actually used dona-
tions, on the theory that money was fungible.14 If a terrorist did not have
to pay for medical treatment, the theory went, the money saved could be
used to buy bombs. The provision guaranteeing special protection for First
 THE WEBMASTER AND THE FOOTBALL PLAYER 29

Amendment activities was eliminated. These revisions made it consider-

ably easier to get convictions but left less space for freedom of speech.
Five years later, the Patriot Act expanded the definition of material sup-
port to include any form of “expert advice or assistance”—spreading the
dragnet wider and making the prosecutor’s job that much easier.15 “Expert
advice or assistance” covers some acts that should certainly be criminal
and in fact already were under other laws, like teaching terrorists to make
bombs. But this term is so vague and open-ended that it has obvious
potential for also capturing other kinds of conduct, including humanitar-
ian aid. A doctor who provides medical treatment to a terrorist would
seem to fit that description—or maybe a computer whiz. The statute con-
tained no definition of “expert advice or assistance” at the time, so it was
hard to tell what the limits of this concept might be, if there were any at all.
Sami’s prosecution was the first occasion on which the government relied
on the Patriot Act’s “expert advice or assistance” provision.
Throughout nine weeks of testimony and arguments, John Steger and
his fellow jurors—three other men and eight women, including a banker,
a PhD in education, and the owner of a lumberyard—didn’t hear any
evidence that seemed to them to substantiate the material support charges.
“There was not a word spoken that indicated he supported terrorism,”
said John. The prosecution claimed that the charity’s website featured
links to other websites inviting donations to organizations like Hamas; the
defense explained that those links had once existed but had been removed
before Sami became webmaster. The prosecutor argued that it did not mat-
ter under the law whether or not Sami intended to aid terrorists as long as
he knew that the website he worked on solicited donations, but there was
no evidence to support that contention either. The prosecutor also argued,
correctly, that the material support law did not require the government to
show that anyone had clicked on a link leading to Hamas or had actually
made a donation to a terrorist organization. This case could be brought
only because the government did not have to prove very much at all under
the post–Patriot Act material support laws.16 But the jury found that the
prosecution’s proof did not even meet that low standard.
The jurors came to understand that this trial was not just about terror-
ism but also about the First Amendment. “We talked,” John said, “about
that we weren’t going to step on anybody’s rights to hold the opinion
they had.” As the jurors learned or rediscovered, First Amendment law
protects the right to read or to voice hateful opinions—and it applies to
everyone lawfully in the country, not just to citizens. Many of the rights
30 DRAGNETS AND WATCHLISTS

the Constitution guarantees are, like the First Amendment, general limita-
tions on what the government can do. Others, like the Due Process Clause,
apply to all “persons” or all those accused of a crime and so cover citi-
zens and noncitizens alike. Very few constitutional protections (like the
Fourteenth Amendment’s hard-to-define “privileges and immunities”) are
reserved only for citizens.
United States citizens are, of course, just as subject to the material sup-
port laws as Sami al-Hussayen. Even if the prosecution’s theory in the
al-Hussayen case does not seem to threaten the average American with pros-
ecution, it threatens our shared fundamental rights. The attempt to build a
wall between the American people and hateful ideas is inherently inconsis-
tent with one of the First Amendment’s core ideas. The First Amendment
represents a commitment to trusting Americans, in this instance to confront
the marketplace of ideas without having the government prescreen those
ideas for us. The patronizing notion that the government should remove
potentially dangerous ideas from the marketplace misconceives the Con-
stitution’s underlying view of the relationship of the government and the
individual. The material support law, read as broadly as it was in this case,
transfers immense power to the government to control ideas and disem-
powers the people.
Choosing constitutional principle over a fear-driven conviction, this
Idaho jury of ordinary Americans took only two or three hours—after
a nine-week trial—to agree to acquit Sami on all of the terrorism-related
charges. They were not deterred by the fact that Sami was a Saudi citi-
zen also charged with immigration fraud. The jurors debated the alleged
immigration violations separately, finding those charges much more diffi-
cult. Whether Sami’s statements on the immigration forms were intention-
ally misleading and whether the forms themselves were unclear were hot
topics of debate among the jurors for six days in a discussion so intense
that some jurors were reduced to tears. The jury voted to acquit Sami on
three of the immigration charges but was unable to reach consensus on the
other eight.
Is this a Twelve Angry Men happy ending? Sami’s life was ravaged
notwithstanding the decisive acquittals on the material support charges.
He had been locked up and held in solitary confinement for seventeen
months and his family was forced to return to Saudi Arabia without him.
The fact that the jury had deadlocked on eight of the immigration charges
meant that the government could retry him on those charges. With that
prospect hanging over his head, Sami decided to drop his appeal from
 THE WEBMASTER AND THE FOOTBALL PLAYER 31

the immigration court’s deportation order and return to Saudi Arabia

to rejoin his family. And although he had escaped conviction under the
dragnet material support law, this law remained available to ensnare other
law-abiding people—including American citizens—and to cast a shadow
on our First Amendment rights.
From the government’s point of view, it is easy to understand why
broad laws like this one can seem desirable. The material support laws are
designed to enable criminal prosecutions in situations where the govern-
ment does not have proof that someone they suspect is a terrorist, or has
conspired with terrorists, or is attempting to help terrorists. This expanded
dragnet might conceivably catch an actual terrorist who could not other-
wise be caught, although we have no way to estimate the likelihood of that
happening. But what about the costs—the collateral damage to individual
people, to the First Amendment, and to our concept of our relationship to
our government—when these laws can capture the innocent and intimi-
date everyone else?
The desire to wield this broad a net, regardless of how great the poten-
tial costs might be, is typical of the Just Trust Us philosophy prevalent after
9/11. We are asked to assume that prosecutors won’t use the net against
the wrong people and so the costs of this strategy can be controlled. But
that optimistic assumption, as Sami’s case shows, doesn’t always work out
so well in practice. Investigators are not immune to wishful thinking, no
matter who is president. The investigators in Sami’s case wanted so much
to find and disrupt a terrorist-financing network that they did not seem to
notice that they were molding the facts in a procrustean fashion—or that
their theory of the case was a severe threat to First Amendment values.
And so they made a serious mistake in this case. But even if prosecutors
were superhumanly able to make only the wisest choices in deciding whom
to charge, the very existence of this statute stifles free speech. Why would
other students or computer experts agree to help run a chat room or post
controversial materials if the result could be criminal prosecution? Will
people become fearful that informing themselves by reading the ravings
of terrorists, or associating themselves with any Islamic charity no mat-
ter how legitimate that charity is, might leave them in Sami’s position—a
focus of the government’s attention even if they have not done anything
other than add to a conversation? What if the next jury isn’t as thoughtful
as John Steger and his neighbors?
The government got this one wrong but these Idaho jurors, with this
trial as their crash course in First Amendment law and values, stood up to
32 DRAGNETS AND WATCHLISTS

defend the Constitution. Ultimately, the Constitution itself gets the credit
for providing the fail-safe of jury trials. In Article III of the Constitution
as well as in the Sixth Amendment, the framers expressed their trust in
the American people by empowering us to protect our rights by deciding
whether someone the government has charged with a crime should be
convicted. We are not told to just trust the government; we are asked to
think for ourselves. As the Constitution’s Preamble promises, we are the
government. John Steger and his fellow jurors vindicated the Constitu-
tion’s faith in the American people. They resisted any urge they might
have had to lock up Sami al-Hussayen just in case the government’s
suspicions about him were right after all despite the lack of evidence—
a victory for due process; they resisted the idea that a person can be
prosecuted for making hateful ideas accessible to others—a victory for
the First Amendment; and they resisted lowering their due process and
First Amendment standards because Sami was an Arab, a Muslim, and
a foreigner—a victory for the guarantee of equal protection of the laws.
But the expanded material support law still remains available for use or
misuse on other occasions.
Sami is back in Saudi Arabia, teaching at a university and continuing
his computer work. Profoundly affected by these events, he is still trying to
reconcile his own experience with his lifelong belief that the United States
stands for what is good and right. As for the residents of Moscow, Idaho,
Liz Brandt says that watching these events unfold brought the liberals and
libertarians of that community together. The liberals were already suspi-
cious of the Patriot Act, which, she says, made this all possible because
it did not provide enough protection against the government “running
amok.” To the libertarians, she says, the vision of armed federal agents in
flak jackets occupying the Idaho campus due to a mistake, and then not
backing off even as their case fell apart, was chilling. “This just looked like
huge government, because it was.”

The Football Player

Another consequence of the misguided prosecution of Sami al-Hussayen
was that it derailed the life of an American citizen who was no guiltier
than Sami of helping terrorists but never got the chance to be exonerated
by a jury. Sami’s acquittal did not undo the damage that his prosecution
brought to himself, to his wife and children, or to a young man he had met
at Idaho.
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