From:Counterpunch Weekend Edition October 8 / 9, 2005 (Posted: October 09)


[This is Part Two of a two-part series. The first part discussed the trial and conviction of Dr. Rafil Dhafir of Syracuse, NY, for having provided aide to Iraqis in violation of the Iraqi Sanctions. The second part places his case in a larger context, discussing DOJ tactics under Bush and illustrating why these tactics should concern us.]

In terrorist investigations, the Foreign Intelligence Surveillance Act (FISA) is used to obtain information about the target without probable cause of criminal activity. FISA investigations used to be called foreign intelligence investigations. More recently they have come to be referred to as national security investigations or terrorist investigations.
These types of investigations are supposed to be carried out against foreign powers or agents of foreign powers. Their purpose is to protect us from foreign spies and saboteurs.

Interestingly, although FISA has been used in many recent cases that resemble Dhafir’s, it was not used, according to the prosecution, in Dhafir’s case. This would seem to support the prosecution’s claim that they were not trying Dhafir for a terrorist crime and never intended to. However, the FBI did not need to use FISA because Dhafir’s acts were not concealed and the multiple deposits bank were sufficient to obtain a warrant for a wire taps.

FISA is constitutionally problematic and the DOJ avoided those problems by not relying on it. They also avoided having to prove in court that they did in fact think Dhafir was supporting terrorists. It’s smart because the DOJ has certainly been criticized for over-prosecution of alleged terrorists. This way they can get a suspected terrorist off the street for a very long time without having to prove he’s a terrorist.

Sixth Amendment Attacks

The DOJ has attacked the Sixth Amendment in a variety of contexts, here and elsewhere. In the Dhafir case, the attempt to raise the national security issue post-trial is one way of avoiding the Sixth Amendment protection. Another prosecutorial tactic is to obstruct the defense as much as possible. Dhafir’s attorneys claim that the prosecution continually attempted to obstruct and interfere with the defense by (1) banning the defense team’s local law clerk (a law student) from visiting Dhafir for several months (defense attorneys live and practice several hundred miles away), (2) moving Dhafir to another location, where (3) attorneys could only speak to him through glass on a phone over which guards could listen.[1]

A direct frontal attack on the Sixth Amendment right to defense can be seen in the Lynne Stewart case, where Stewart, a NY criminal defense attorney who represented a convicted terrorist, was indicted for having issued a press release for her client and distracted guards I order to maintain confidentiality with her client. Since her representation of her client was also post-trial, after her client’s conviction, the government claims that Sixth Amendment rights are not implicated, but the message to attorneys is loud and clear: “Don’t represent criminal defendants!” During her trial, the government also would not reveal to Stewart or her attorney whether or not her communications with her attorney were being “monitored” while she was preparing her defense. The case is a poster case of Sixth Amendment incursions. One can only assume Stewart’s conviction affected Dhafir’s defense.

“Bait & Switch” — “We don’t want to say that it is what we don’t say it is but that in fact is what we don’t say it is and don’t want you to say it is.”

The prosecution said one thing at trial (“Don’t say the T-word!”) and another post-trial (“He’s a national security threat!”). What this meant was that Dhafir’s attorneys could not properly prepare a defense against these post-trial imputations.

This not only implicates Sixth Amendment concerns, it may violate the spirit if not the letter of a recent Supreme Court decision. In United States v. Booker, decided in January of this year, the Supreme Court decided that the sentence that could lawfully be imposed on a defendant “must be based on the facts found by the jury at his trial.”[2]

The prosecution quotes the case only to show that the sentencing guidelines, while no longer mandatory, must still be taken into account. They say nothing about the central Booker proposition, probably because they are not asking for a sentencing increase, according to Olmsted, but only the sentencing maximum for the offense. The defense emphasizes that Booker means the guidelines are only advisory. But what the Court actually said was that sentencing must be based on facts found by the jury at trial. Here, the prosecution is simply adding new facts not found by the jury.

The strategy is similar to the bait and switch tactic of con men. Offer one thing and when it’s accepted, switch the item. Here, the jury was offered to decide one crime violating Iraq sanctions via money laundering and fraud but in fact the Department of Justice really wanted to get Dhafir for something else that it couldn’t prove terrorism. So, once the DOJ got the conviction, they switched to argue sentencing as though they had gotten the conviction on another crime.

The kind of tactic is used successfully so often by prosecutors now that defense attorneys barely fight it anymore.

Mixing Laws

This is a long-used strategy. But, because of the increasing compartmentalization and proliferation of an ever greater and vaster array of different laws that are supposed to address different situations, the Department of Justice can increasingly mix these unrelated laws to obtain verdicts not intended by the original laws. It’s very clever and very dangerous.

For example, conspiracy law can be mixed with a criminal law. If the person cannot be convicted of the crime itself, the prosecution may be able to get a conviction on the conspiracy count alone. Additionally, what is happening more and more is that the proof of conspiracy is being used to prove the crime. Conspiracy is usually proven through circumstantial evidence. If there is not enough evidence that a suspect actually committed a crime but it can be proven that he agreed to commit it, he may be convicted of conspiracy. Agreement to engage in a conspiracy is often proven indirectly. Thus, bank records that show deposits of under $10,000 may be used to convince a jury of the suspect’s intent to engage in a conspiracy to launder money.

In Dhafir’s case, the prosecution charged him with money laundering, violation of the sanctions, as well as conspiracy to do both, and various fraud and other claims.

The effect this sort of mixing had in Dhafir’s case was pronounced. Money laundering laws were intended to catch criminals who either steal money and “launder” it (pass it through several banks) to obscure it’s origins, or create check-writing schemes to make banks give them money when they don’t really have any. In Dhafir’s case, monies he sent to Iraq were kept in an account there under another individual’s name. This had to be done because if Saddam learned about these monies, people’s lives would be put in jeopardy. And since the purpose of the giving was not only humanitarian but religious (since one of the tenets of Muslim giving is to foster connections to Allah) and political (since religion IS politics in Iraq), the prosecution argued that Dhafir’s intention was to promote religious and political interests that were anathema to the U.S.

The violations of the sanctions alone would not generally result in a criminal conviction. These had to be combined with the money laundering violations in order to stick.

Thus, the effect is, again, that a man who is widely known for his kindness and generosity to the needy is transformed into a threat to national security, via the mixing of laws that were originally intended for quite different purposes.

Parallel & Triangulated Prosecutions & Convictions

A third strategy the DOJ has used increasingly under Bush is to gain convictions in different cases under numerous unconnected areas of law that over time weave together to create a whole new field of possible prosecutions. What is interesting to legal observers about the Dhafir case is that it was NOT brought as a case under the material support provisions of the PATRIOT Act, where most of these kinds of cases have been brought (often in concert with money laundering charges, in fact).

Why? Because the PATRIOT Act has become widely unpopular, a trigger for political activism and press coverage. The DOJ would much rather prosecute in private, without the public knowing what exactly it is doing, especially where it is doing something really unkind to a nice man. It would hurt their case for the public to be alerted.

And most likely the prosecution couldn’t prove material support of terrorism in Dhafir’s case, or thought that a jury wouldn’t buy it even if they had the evidence. Several categories of support in the material support of terrorism provision have also been ruled unconstitutional by federal courts, largely due to their overbreadth or vagueness.[3] One of the two support provisions was thrown out by a federal court in NY in the Stewart case. While the court did not directly address it, that provision clearly raises First Amendment concerns. The DOJ may have avoided relying on those provisions for these reasons.

The Dhafir case marks a new approach to terrorist cases: IEEPA combined with conspiracy to launder money and other charges.

Or, perhaps it is just a random evolutionary mutation of prosecutorial zeal.

The upshot, however, is the same. Where convictions are obtained in two separate combinations of law, all the ground between those two becomes open to prosecution. Thus, the IEEPA/money laundering combination creates a parallel track of potential convictions to the PATRIOT Act/money laundering combination. The range of human behaviors that can be criminalized between these two sets of laws is tremendous.

Where convictions can be obtained in three separate tracks, you have a triangle within which a vast area of potential punishment becomes possible. I call this triangulation.

This becomes even more important where vastly different laws are used in vastly different circumstances to obtain similar types of convictions or for similar constitution-undermining or government-power-consolidating purposes. Thus, the attempt to go after Greenpeace. The DOJ indicted members of Greenpeace, as well as the organization itself, under an obscure late 19th century law against “sailor mongering.” The case was thrown out. But, if they had succeeded, the DOJ would have been able to obtain membership lists and financial records of Greenpeace. Like the “shake the tree” interrogations of Muslims throughout the country, like the material support indictments, the Greenpeace indictment would have allowed the government to go on a huge fishing expedition and to keep whatever landed in its net.

Once one understands that the government can take sets of facts about individuals or organizations, separate them out of context and reassemble them to make them look like just about anything they want, it becomes clear that government fishing expeditions are exceedingly dangerous to freedom and democracy.

And considering the breadth of the geometric area in that triangle in which the government will have established its right and power to control all who fall, no individual is safe from government intrusion, prosecution, or simple out-and-out destruction.

Between the right to indefinitely detain presidentially-determined unlawful enemy combatants and to torture detainees, and the right to obtain records on peaceful organizations and activists, to the ability to stop attorneys from representing disfavored clients, and a doctor from giving money to those in dire need in a foreign land, where can we stand that we are safe?

Mixing Legal Concepts

This is similar but not identical to mixing laws and establishing parallel tracks. FISA contains one concept. Criminal laws contain another. Immigration laws yet another. And IEEPA yet another.

FISA’s concept was to protect the nation from spies and sabotage. This easily translates into protecting against terrorism. But the trouble is that terrorism is also a crime. The Constitution requires certain protections for all persons accused of crimes. FISA evades those protections. So, the concepts have become combined into a kind of witch’s brew that is difficult to separate out.

Immigration laws apply to those seeking entry into our country. Yet this is where the terrorism definitions are primarily found in our laws. Thus, some of the immigration provisions get mixed, again, with criminal laws.

IEEPA is meant to give the president authority to, in effect, boycott or blockade a country. Yet, as shown in Dhafir’s case, it can be mixed with a criminal statute for a very different purpose.

Loss of Reference to Democratic Values

References to international human rights and humanitarian laws, including those mentioned earlier: the Nuremberg Principles and the defense of necessity, as well as treaties like the Geneva Conventions, the Convention Against Torture, etc., illustrate what has been lost by the Justice Department in its efforts to defend the security of our country. These principles are the same as those found in the Bill of Rights but they are increasingly being overridden by overzealous prosecutors and an administration that considers such precepts “quaint” as former White House Counsel (and current Attorney General) Alberto Gonzales called the Geneva Conventions. These principles are also found in the UN Declaration of Human Rights, the Convention Against Torture, and the International Covenant of Civil and Political Rights, all of which the U.S. has endorsed or adopted.

Americans need to know about and recall these principles. We need to remember that neither the U.S. Constitution nor international human rights laws contain mere theoretical ideals. We must stand by democratic ideals or our nation falls.

Jennifer Van Bergen, J.D. is author of “The Twilight of Democracy: The Bush Plan for America,” a constitutional analysis for the general public of the PATRIOT Act and other legislation and executive orders. She writes commentary frequently for Counterpunch and is a reporter for Raw Story . She can be reached at


[1] Dhafir could have met with his attorneys if he had consented to a whole body search which the prosecution knew would be a severe violation of Muslim practices. Lack of knowledge of Islamic practices cannot be attributed to the prosecution since, according to Dhafir’s supporters, Olmsted studied Islam in preparation for the trial.


[3] See Jennifer Van Bergen, “In the Absence of Democracy: The Designation and Material Support Provisions of the Anti-Terrorism Laws,” 2 Cardozo Public Law, Policy & Ethics Journal 107 (2003).

Copies of Jennifer Van Bergen’s book can be bought directly from her at: Or from the small independent publisher that published the book:Common Courage Press