Jennifer Van Bergen 9/25/06

Five years later, George W. Bush’s “war on terror” has morphed into (as he calls it) a “War on Terra”–an assault on the life and values of the United States and the planet–including our judicial system. Take for example, the sweeping scope of the “terror cases” that have surfaced so far. As the Washington Post noted recently, nine out of 10 of the terror cases brought by the Justice Department since 9/11 did “not result in prosecutions.”  In these cases, “most charges [were] not related to terrorism and … only about a third of those prosecuted end up in prison.”

As ordinary people without any connection to terrorist organizations are swept up into George Bush’s war, there are three specific cases that should be carefully watched as especially troubling bellwethers. They are emblematic of how much ground has already been ceded to Bush’s attack on our liberties, and as it happens, the latest developments will be unfolding this month even as the fifth anniversary of the “attack on our freedoms” is commemorated.

The first case involves an American citizen being detained in Iraq by the U.S. military. His name is Shawqi Ahmad Omar. A hearing was held on September 11, 2006, in the Court of Appeals for the District of Columbia Circuit to determine whether U.S. courts may even hear his petition. His attorneys contend that because Omar is held by U.S. forces, a U.S. court may rule on the legality of his detention. The Justice Department, representing U.S. military authorities, argued that a U.S. court can’t decide the fate of an individual held overseas under what they claim is the authority of multinational forces–despite their admission that Omar is held by the U.S.

The Justice Department was appealing a district court ruling that prohibited the U.S. from transferring Omar into Iraqi custody and permitted the court to further hear the case on its merits, which the government argued was beyond its jurisdiction.

In some ways, the Omar case echoes two cases already ruled on by the Supreme Court: the Hamdi case, which involved a U.S. citizen held as an enemy combatant in a military brig in the U.S. without access to attorneys or courts, and the Rasul case, which questioned the authority of the U.S. government to detain non-citizens at Guantanamo, also without access to their attorneys or to courts. The Supreme Court held in Rasul that Guantanamo detainees may challenge their detentions in U.S. courts, even though they are not citizens and Guantanamo is not U.S. territory, because detainees were nonetheless exclusively in U.S. control. In the Hamdi case, the High Court held that an enemy combatant may challenge his detention by military authorities.

Despite the Hamdi and Rasul decisions–and despite another recent Supreme Court decision that ruled the Geneva Conventions and international laws of war apply to the war on terror–the U.S. government continues to argue that U.S. individuals it detains outside U.S. territory are outside the jurisdiction of U.S. courts, that it may refuse them access to their attorneys, interrogate them, even beat and torture them, and then transfer them out of U.S. control, as they please.

The Omar cases raises the same questions all over again that were raised and should have been settled by the Hamdi, Rasul, and Hamdan (the case that ruled that detainees must be treated in accordance with the law and the Geneva conventions) cases. Yet Justice Department tactics in the Omar case raise yet another question of the legitimacy of the Bush administration’s approach to terrorism. There is evidence that Omar was subjected to electroshock and severe physical beatings. Does the administration want to turn Omar over to Iraqi authorities in order to avoid the consequences of their treatment of him?

That the administration continues to disregard Supreme Court rulings is deeply troubling, but that’s not the end of it, of course.

There is the case of New York defense attorney Lynne Stewart, convicted of having provided “material support” to terrorists merely for having made a press statement on behalf of her convicted terrorist client. This statement put her in violation of special Bureau of Prison regulations that apply only to prisoners convicted of terrorism (or are otherwise viewed as a continuing danger) and their attorneys–which is very likely unconstitutional but has not yet been tested in court. The regulations place troubling restrictions on the attorney’s ability to represent her client.

True to form, the government continues to argue that a 30-year sentence for Stewart would serve as a “deterrent” to all those who would violate Bureau of Prison regulations. Stewart’s conviction is unprecedented; no attorney has ever been brought up on criminal charges for having violated such administrative rules. Her defense committee states:

“Lynne’s case is among the worst examples of the terrible state of civil liberties in the U.S. today. That a proud and courageous attorney, who did nothing more than valiantly defend her client, could suffer so grave an injustice is a sure sign that we are in for even more troubled times.”

On September 25, Stewart will argue that her own trial was fundamentally tainted by unlawful NSA spying on her strategy sessions with her attorneys. Not a month after that–on October 15, close to the fifth anniversary of the enactment of the now-infamous USA PATRIOT Act –Stewart’s sentencing hearing takes place. Given the hundreds of letters attesting to her long record of service to the justice system and community, as well as her present battle with breast cancer, Stewart has asked for a zero-term sentence with probation or home custody.

It’s hard to understand how prosecuting someone like Lynne Stewart protects us from terrorism. Indeed, her conviction tolls the bell of liberty for all by threatening the integrity of the entire defense bar nationwide. Defense attorneys can no longer zealously represent their clients where the innocent violation of a regulation can lead to 20 years in jail.

The last example of the disastrous approach of the Bush administration to tackling the real threats of international terrorism is the case of Dr. Rafil Dhafir, an Iraqi-born U.S. citizen who is guilty of nothing more than having sent money to help Iraqis suffering under the sanctions in place against Iraq prior to our 2003 invasion. The government argued that the case had nothing to do with 9/11 or terrorism, but their tactics belie this claim. 

While no terrorism or 9/11-related charges were ever brought against Dhafir, he was called a terrorist in press conferences by Attorney General John Ashcroft and New York governor Pataki and his name was included on a government list of terrorists cited by President Bush. Further, the prosecutors themselves, in a seminar given at Syracuse University last year, discussed the Dhafir case in the context of 9/11 terrorist cases, telling the audience the case was “under-prosecuted.”  

Dhafir supporters point out the fundamental unfairness of the fact that while the government asked the court to mandate that neither the defense nor the prosecution be allowed to raise the issue of terrorism during the trial, it demanded–and got–an increased sentence as a “national security threat” for Dhafir’s violation of the sanctions.

The sanctions prohibited U.S. persons or organizations from sending funds to Iraq without a license. But the trouble was that the legitimate channels were corrupt and monies sent through those channels often did not make it to the people most in need. Dhafir sent monies through his own private channels to make sure they were received by those who most needed them. There was never any question at trial that the monies were used to fund terrorism or anything other than humanitarian assistance to those in need.

Nonetheless, Dhafir was convicted in 2005 and is serving a 20-plus year sentence. Katherine Hughes, who watched the entire 17-week trial as an ACLU court-watcher, writes :

“Dhafir is undoubtedly paying the price of breaking the genocidal policy of U.S. sanctions against Iraq. However, the government was unwilling to prosecute him for this without the attendant obfuscation and cover provided by the laundry list of charges that he faced. A clear message is being sent that humanitarian acts like this will not be tolerated and will be punished accordingly.”

These three cases show a very disturbing trend in Bush administration prosecutions:  a war on ordinary people, people, in fact, attempting to do good–not a war on terrorism.

Jennifer Van Bergen is a journalist with a law degree. Her book The Twilight of Democracy: The Bush Plan for America has been called a “primer for citizenship.” She can be reached at

Jennifer Van Bergen’s book is published by Common Courage Press.