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Sep 28, 2012 
By 
Thirteen years ago I helped convict a man of assisting terrorists.
Well, in retrospect, I should add "sort of."
The man — let's call him "Bob" — ran an immigration services business, and was helping people secure legal residence in the United States through various forms of fraud, including fraudulent asylum applications. The evidence showed that he knew that some of the people who benefited from his fraud were members of an organization on the State Department's list of designated foreign terrorist organizations. In 1999 the prosecution team (of which I was a part) secured an indictment and executed more than a dozen search and arrest warrants. Most of the defendants were charged with various forms of immigration fraud; eventually we charged Bob with providing material support to a designated terrorist organization. In October of 1999 he pled guilty to that charge, among others. It was a coup — I believe, but have not been able to confirm, that it was the first conviction under the material assistance statute. I was proud to be a member of the team. Most of Bob's co-defendants also pled guilty to various forms of immigration fraud; I convicted one alleged member of the designated terrorist group of passport fraud at trial (a trial in which his membership in the group was not mentioned).
These were days before 9/11, so this didn't make a lot of noise. You might be surprised to know that Bob's conviction for materially assisting a designated terrorist group did not have an impact on his modest sentence, which was driven by his immigration fraud conviction — at least at the time, the sentencing guidelines for material assistance did not jack up the sentence unless evidence showed that the defendant knew or intended that the assistance be used to commit violence, and Bob had no such intention. Bob got the same sentence he would have gotten if he had only pled guilty to the immigration fraud.
That's why I can live with what follows.
See, there's no doubt that Bob was running an immigration fraud ring, and the evidence against him on that beef was overwhelming, and his sentence was a fair one in light of his fraudulent conduct. And the sort of material assistance he rendered — immigration fraud — didn't fall into any of the areas arguably protected by the First Amendment, like advocacy, that make the material assistance statute so problematic.
But here's the problem with Bob's conviction for materially assisting a designated foreign terrorist group, a conviction the prosecution team worked very hard for and was very proud of: the designated terrorist foreign terrorist group in question was the Mujahedeen-E-Khalq, or MEK. And this week, the State Department has decided that the MEK is not a designated foreign terrorist organization, for reasons that can only be described as political.
Secretary of State Hillary Clinton is expected to notify Congress on Friday that she plans to take Iranian exile group Mujahedin-e-Khalq, or MEK, off a State Department terror list, three senior Obama administration officials told CNN.
The MEK's presence on the State Department's FTO list has long been controversial and long been the subject of intense lobbying. There's no question the MEK did things that could logically earn them a place there:
MEK was put on list in 1997 because of the killing of six Americans in Iran in the 1970s and an attempted attack against the Iranian mission to the United Nations in 1992.
But the MEK has also long opposed the regime in Iran. They are the enemy of our enemy — which makes them, in the eyes of some, under a mindset that has absolutely never turned out badly before and will certainly never turn out badly again, our friends.
The six people the MEK killed in the 1970s are still dead. They were dead when the State Department designated the MEK as a foreign terrorist organization and they have been dead all the years since and they won't get any less dead when the State Department removes the MEK from its FTO list. The MEK is the organization that once allied with Saddam Hussein; that historical fact hasn't changed, although its political significance has. No — what has changed is the MEK's political power and influence and the attitude of our government towards it.
Bob is lucky. If we had taken down his immigration fraud ring just two years later, there's no question in my mind that the Department of Justice would have found a way to hit him with a far more severe sentence for the exact same conduct. Yet Bob still lives with the felony conviction for being a terrorist-aider. He's no angel — he's been convicted of other crimes since, which is not a surprise to me at all. But today, Bob's felony conviction for rendering material assistance to a designated foreign terrorist organization looks like a political crime — a conviction for an act that is, or is not, a crime based on unprincipled political calculation. At the time, I was ridiculously young to be involved in such things (I was 29 when I took Bob's plea), and I was very chuffed to have negotiated and taken such a significant guilty plea to such a significant crime. Now, I'm not sure I am ashamed, but I do feel used by my government. (Though not so ill-used as Bob.)
But this episode says something about far more than Bob. It says something very fundamental about the War on Terror. It says this: if we let it, the government will define the War on Terror however it wants.
The United States government, under two opposed but increasingly indistinguishable political parties, asserts the right to kill anyone on the face of the earth in the name of the War on Terror. It asserts the right to detain anyone on the face of the earth in the name of the War on Terror, and to do so based on undisclosed facts applied to undisclosed standards in undisclosed locations under undisclosed conditions for however long it wants, all without judicial review. It asserts the right to be free of lawsuits or other judicial proceedings that might reveal its secrets in the War on Terror. It asserts that the people it kills in drone strikes are either probably enemy combatants in the War on Terror or acceptable collateral damage. It asserts that increasing surveillance of Americans, increasing interception of Americans' communications, and increasingly intrusive security measures are all required by the War on Terror.
But the War on Terror, unlike other wars, will last as long as the government says it will. And, as the MEK episode illustrates, the scope of the War on Terror — the very identity of the Terror we fight — is a subjective matter in the discretion of the government. The compelling need the government cites to do whatever it wants is itself defined by the government.
We're letting the government do that. We're putting up with it. We're even cheering it, because that's more comfortable than opposing it or thinking about how far it has gone.
I believe that America is at risk from terrorists, in the sense that the lives and property of Americans are in grave peril all over the world, including here at home. But America is more than people — America is the rule of law, freedom of expression, freedom of worship, and a constitutional government accountable to its people and limited in its ability to abuse them. Terrorists can't destroy those things. But terrorists can terrify us into destroying them ourselves.
Note: all facts about Bob's prosecution disclosed in this post are available in public records.
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