Repression of Palestinian Activists in the US: Where are the Defenders of Justice?
by Noah Cohen
April of 2002 saw some of the largest and most vocal demonstrations of solidarity for Palestine in US history. On April 5 in Boston, 2,000 people marched in the street protesting the Israeli invasion of Jenin and other Palestinian population centers; the march received prominent and unusually sympathetic coverage in the Boston Globe. On April 20 of 2002, between 50,000 and 100,000 people marched in Washington DC, protesting both the escalation toward war in Iraq, and continued US support for Israel in its military actions against Palestinians. The march was arguably the largest pro-Palestinian demonstration in US history; the Washington Post gave it front-page coverage, quoting Palestinians and supporters of the Palestinian cause at length. In both of these demonstrations, Arabs and Muslims turned out in large numbers.
The significance of rallies and marches for changing US policy can be debated. The purpose of this article will not be to discuss the relative merits of public demonstrations, but rather to observe something about the recent history of repression against the Palestinian cause in the US, as yet uncommented in most of the current discussion of civil liberties. This silence is a glaring omission to anyone directly involved in pro-Palestinian organizing over the last few years.
For in fact, by the end of 2003, both of the two Palestinians who had spoken from the national stage in DC on April 20th had been detained; one was subsequently forced to leave the country, the other faces long-term imprisonment inside the US. In Boston, five of the central non-citizen Palestinian organizers had been forced from the country; two had also been detained by the INS or by its later incarnation, the Department of Homeland Security, and one had also been tortured in custody.
Why have these facts not been more generally discussed? More importantly, why has so little been done about them?
The View from Boston
Jaoudat Abouazza was part of a small community of Palestinian, non-citizen organizers who were centrally involved in building public demonstrations in Boston. His picture appeared at the front of the march in the April 6 Boston Globe. He attended regular demonstrations in front of the Israeli Consulate and brought supporters.
On May 30 of 2002, he was stopped by police in Cambridge, MA, ostensibly for an elapsed vehicle registration. The police searched his car and found a stack of flyers announcing a protest of the upcoming Israel Day of Celebration. Soon Abouazza would find himself in the Cambridge jail being interrogated by members of the FBI.
During Abouazza's arraignment on the following day, the police had formulated a laundry list of charges against which Abouazza would never have the opportunity to defend himself.
The prosecutor cited the presence of the protest flyers along with a roll of speaker wire as a reason to deny bail (now infamous as the "flyers and wires" theory), an argument that the judge found persuasive. He was held for another three days until his first pre-trial hearing. During that time, he was repeatedly questioned by members of the FBI concerning his political beliefs and associations, in the absence of his court appointed attorney. By the time his pre-trial hearing arrived, the INS had already filed a detainer; he pleaded innocence, but the INS took him into custody on the following day. Since he was therefore unable to appear at his next hearing on June 12, the Cambridge Court issued a warrant for his arrest.
The Jaoudat Abouazza Defense Committee (JADC) was formed immediately after Abouazza's arrest in Cambridge. Members worked on two fronts: mounting a public pressure campaign for Abouazza's release; securing effective legal representation. After Abouazza's detention by the INS, the JADC held a meeting with members of the local chapter of the National Lawyer's Guild who were centrally involved in the NLG Immigration Rights Project. The meeting seemed favorable. The NLG representatives surprised the committee a few days later by declining to take the case, without explanation. They provided instead a referral to an NLG affiliated immigration lawyer-Nelson Brill-who agreed to handle the case for his normal fee.
After Abouazza was transferred into INS custody, the interrogations continued, along with an escalating pattern of physical and psychological abuse. Upon his detention in Bristol County Jail, where he was moved from Cambridge, one guard punched him in the stomach; another called him "Taliban." He was introduced to the other prisoners as a "terrorist." He was repeatedly awakened in his cell by federal agents, who showed him flyers and pictures of political associates and asked him questions. He was placed in solitary confinement for refusing to answer questions. At no time was his lawyer present.
On Sunday, June 16, Palestinian activist Amer Jubran and another member of the defense committee visited Abouazza in Bristol. His mouth was swollen and bleeding. He told them that earlier on the same day he had been taken from his cell to a medical office inside the prison, strapped into a chair, and four of his teeth had been pulled against his will and without anesthesia. Attorney John Reinstein of the ACLU and Abouazza's public defender, Emily Karstetter, visited Abouazza two days later. Karstetter confirmed to the press that she saw Abouazza's wounds; Reinstein said nothing.
The JADC began a public pressure campaign to have Abouazza transferred to a medical facility both to receive treatment and to gain independent documentation of torture. Bristol County Sheriff Thomas Hodgson first denied that any teeth had been pulled; then claimed that the treatment was voluntary. He refused to grant access to an independent medical investigator, and later barred members of the defense committee and the ACLU from further visits.
On June 27, 28 days after his arrest, Abouazza was finally granted an immigration hearing. He asked for voluntary departure to Canada (where he was a citizen) in order to be released as soon as possible from the INS and from the threat of further abuse at the hands of US officials. The judge granted his request, but allowed for his continued detention by the INS pending their appeal. Amnesty International wrote a letter to Bristol on July 5, warning them that physical abuse of prisoners was a violation of international human rights, and asserting the need for independent medical review. The INS finally executed the order of voluntary departure to Canada a week later.
Partly as a result of the work of the JADC, news of Abouazza's detention spread quickly through the local activist community. One consequence was an immediate chilling effect among local Arabs and Muslims, who recognized correctly that their own participation in political speech would not be protected. Whereas 2,000 people-disproportionately Arab and Muslim-had been on the street on April 5, less than 100 were present on June 9, for the protest for which Abouazza had been building at the time of his arrest. Abouazza's subsequent torture in INS custody further drove home the message of intimidation.
Amer Jubran-active in Abouazza's defense-was himself the object of political targeting and harassment. Jubran had helped to organize a protest of the Israel Day of Celebration in Brookline in June of 2001. The Brookline police arrested him and broke up the demonstration. They charged him with "assault with a dangerous weapon" (his shod foot) claiming that a local Zionist had accused Jubran of kicking him from behind.
A police video-tape gave clear evidence of the truth: Jubran had not kicked anyone. An independent eye-witness told the police that the accuser had been the aggressor, bumping into Jubran and speaking aggressively. The police at first attempted to suppress this evidence, along with dispatch tapes showing that there had been an advance order to "arrest Jubran" and "clear the demonstration." As it turned out, the Brookline Police were also in the pay of the Israel Day of Celebration organizers, which included the Israeli Consulate; the Brookline Police had communicated information about the protest and protest organizers to the Israeli Consulate-an agent of a foreign government. After a long defense campaign, with 11 court appearances and lasting nearly a year, the Brookline court ultimately granted "pre-trial probation" and dismissed the charges.
Jubran went on to become a leading organizer of the New England Committee to Defend Palestine(NECDP), which helped to organize the June 9, 2002 protest against the Israel Day of Celebration. On November 2, 2002, the NECDP held its first fully independent event -a protest in commemoration of the disastrous Balfour Declaration of 1917-at which time it also announced publicly its principles: opposition to the existence of Israel as a colonial-settler state and support for a unified, democratic Palestine in all the historic territory of Palestine; full support for Palestinian human rights, including the right of Palestinians to resist colonization and the right of refugees to return their land; and an end of all US military, economic and political aid to Israel. Jubran led the demonstrators in a march through downtown Boston.
Two days later, on the morning of November 4, INS and FBI agents forced their way into Jubran's home in Rhode Island and demanded that he answer some questions. INS agent David Adkins told Jubran that if he would "please the ears" of the FBI, he would be free by that afternoon. If he failed to do so, he "could rot in jail for 50 years." Jubran said that he would only speak to them in the presence of an attorney. When he insisted on this right, the INS proceeded to arrest him.
Members of the NECDP formed a defense committee and organized a public pressure campaign to gain Jubran's release, hiring Nelson Brill to handle his legal defense.
Initially the INS insisted that it planned to hold Jubran indefinitely, and refused to cite the statutes under which it claimed authority to do so. INS agent Mike Clifford hung up the phone on Brill when he demanded this information.
On November 21, the INS finally granted a bond hearing and did not contest bond when it was set by the judge. It nevertheless affirmed that it would move forward with deportation against Jubran, now claiming that his Green Card-granted three years earlier--had been obtained fraudulently, based on an alleged false marriage.
As the case unfolded over the following year, the INS-which became Immigration and Customs Enforcement of the Department of Homeland Security while the case was pending-systematically abused institutional power, withholding evidence and intimidating witnesses. A little more than a week before the trial scheduled for July 24, federal agents visited members of Jubran's ex-wife's family, interrogating one of them for nine hours and threatening to take her children away if she testified on Jubran's behalf.
The prosecutor consistently failed to turn over documents, submissions of evidence, or witness lists. Jubran complied fully with these requirements. During the July 24 hearing, his ex-wife gave clear testimony that their marriage had been for love. The prosecutor submitted no evidence or witnesses to the contrary; instead, he used the proceedings to inquire about Jubran's political activities and other extraneous matters. The judge over-ruled all objections to this line of inquiry. Although the judge claimed that he was prepared to rule in Jubran's favor, he nevertheless granted the prosecutor time to prolong the case. It became clear to Jubran and the AJDC that the prosecutor was using the immigration proceedings to conduct a fishing expedition into Jubran's political community.
The most disturbing aspect of Jubran's trial was the tacit cooperation of his own lawyer with these proceedings. Brill made the appropriate political statements to the press: Jubran's case was one of political silencing, an attempt to intimidate the activist community. He filed letters objecting to some of the most outrageous acts of the prosecutor-most importantly, the intimidation of Jubran's witnesses. But he acted more as an officer of the court than as an advocate for his client's rights. He defied specific instructions from his client not to enter into agreements with the prosecutor without consulting him, most importantly not to agree to repeated further continuances that were being used to facilitate an illegitimate investigation. As the final date of the trial drew near, this cooperation grew worse: against Jubran's specific instructions, Brill agreed to a schedule for the trial itself that would have increased the ability of the prosecutor to use the trial as a means of conducting an illegitimate interrogation.
During his final trial on November 6, 2003, Jubran told the judge that he did not have faith in his lawyer and asked that he be granted time to obtain another. The judge told him that if he discharged his lawyer, he would be required to go on with the proceedings with no representation. The judge himself would proceed with direct questioning. Under these circumstances, Jubran requested voluntary departure. He would leave the country in January of 2004.
Two other members of the same Boston community of Palestinians were targeted during the same period. They will remain nameless, since they have not chosen to make their cases public. One was a very active member of the religious community who had been effective in the local mosques in building support for public demonstrations. He was visited by the FBI at his work and home. Although his immigration status was valid and he engaged in no illegal activities, he decided to leave the country after witnessing the treatment of Abouazza and Jubran.
His roommate was not so fortunate. Agents discovered that he had some irregularities in his immigration papers and detained him. They threatened him with 10 years in detention if he refused to discuss his roommate and other members of the activist community. He told them that there was nothing to discuss, since no one was engaged in anything illegal. They detained him for another ten months before deporting him.
Civil Liberties Organizations: a Pattern of Inaction
In the course of the proceedings against Jubran, the Amer Jubran Defense Committee submitted FOIA petitions to local, state, and federal police agencies. We obtained extensive evidence of police surveillance of activists: twelve video tapes from the Boston police department; evidence of the sharing of photographs between the Brookline and Boston police departments-including photographs of Jubran and his supporters inside the Brookline court; and communications between local and federal police agencies. During the July 24 hearing, an agent John Blake of the Department of Homeland Security attempted to attend the proceedings as if he were a "member of the interested public," but was asked to leave after he was forced to reveal his true identity. The AJDC would later photograph him shadowing them at an anti-Ashcroft protest.
Jubran and members of the AJDC presented this information to civil liberties organizations, along with the record of federal abuse of institutional power in using immigration proceedings against Jubran to silence his political speech. In conversation, ACLU representatives affirmed that his case clearly showed a pattern of political harassment; they never followed-up with action on his behalf.
In August of 2003, Jubran wrote a letter to John Reinstein. Directed specifically to the ACLU, it expressed the failure of the civil liberties community in general to act in response to the unfolding repression of Palestinian activists in Boston:
"I am writing you to express my lingering dissatisfaction with the Boston Chapter of the ACLU. Š
The United States Government has targeted me because of my political beliefs and activities. The events that I have been subjected to in the last three years prove this beyond a doubt. Other Palestinian activists have been targeted as well.
The attacks on me started with Brookline case. I appreciated your involvement at the beginning of that affair. The information that we obtained from your inquiry was startling. This included the following discoveries:
n The Israel Independence Day organizers paid the city of Brookline for police protection;
n There was direct contact between the Brookline police captain and security officers at the Israeli consulate in Boston about our intention to protest on June 10;
n Surveillance of our demonstration in Brookline was done specifically to obtain mug shots of demonstrators;
n The FBI was contacted about local activists who only wished to express their political opinions.
Following this there continued to be other violations of my right to free speech and the linking of my name with September 11 by Brookline officials in the media. These events were of great significance to other activists and me. Yet, despite my numerous requests, you did not express any interest in following up with the any of above matters.
In the summer of 2002 Jaoudat Abouazza became the center of attention. His was a clear case of government targeting of Palestinian activists. On June 16, 2002, personnel at the Bristol County Jail extracted by force four teeth from Jaoudat's mouth, without using anesthesia. More disturbing was the fact that even though you saw the four wounds first hand and documented them with sketches, you did not provide any acknowledgement that this had happened. I hoped that you would at least confirm to the media, who did not think that I was a credible witness, what you saw that day. I did not then, and do not now, understand why you would not confirm what you saw.
Legal intervention was critical in the period while Jaoudat was still in custody-not only to remove him from the immediate danger of further abuse, but also to ensure that an independent medical and dental examination take place in time to document this act of torture. As it turned out, you helped us to obtain a lawyer Š who was willing to take on a lawsuit on Jaoudat's behalf, but neither you nor he made any serious attempt to pursue either Jaoudat's immediate release or immediate access to independent medical personnel. By the time Jaoudat was released from custody on 'voluntary departure' to Canada and we were able to re-establish contact with him, it was already too late for X-rays to show conclusively what had taken place.
The only other word I had from you last summer was your contacting us, not to inquire about Jaoudat, but to ask some questions on behalf of Nancy Geffen of the Jewish Council of Greater Boston. You asked to negotiate with us on our plans to protest the Israeli Day of Independence in Boston on June 9, 2002.
Last fall the government arrested me and put me in jail for seventeen days, without charges. After I was released, I visited with you and talked about my case in the hope that you would defend me. I was comforted by your strong statement that I was arrested because of my political actions and openly expressed opinions. In this December meeting, you explained that you could not do anything related to immigration defense. I replied that the Amer Jubran Defense Committee would take care of that. You also commented that the FBI's targeting of me based on my political actions would be hard to expose. Since then, friends of mine, with limited legal resources, managed to obtain important information through FOIA requests. This information, consisting of police reports and videotapes, provides clear evidence of an established network of surveillance and information sharing between local police departments, the FBI, and the Department of Homeland Security. Š
My case has reached a crucial juncture. The immigration judge has expressed his unwillingness to hear testimony concerning FBI witness intimidation; he suggested that the civil courts would be a more appropriate place to bring such allegations. A civil rights suit against the Department of Homeland Security is the next step that we must take -- a step that is both logical in my case, and necessary for defending the fundamental rights of others -- but this step will require serious legal support, not merely token gestures of interest.
With the limited resources of the Amer Jubran Defense Committee we managed to get a lot done. However, the government is getting bolder in attempting to harass, silence my dissent, and punish me, as well as others. More support is needed to stop these illegalities and to prevent further abuses. The ACLU is a respected organization. I have seen how eager ACLU is in protecting the freedom of _expression of others, but for some reason this eagerness stops short with me. I am left to ask why?"
The ACLU replied by inviting Jubran to a meeting. Once again, Reinstein agreed that Jubran's case demonstrated political targeting and required action, but again no action followed. Reinstein was present during the final trial; his only intervention was to interrupt the proceedings to recommend that Jubran take the stand and submit to direct questioning by the judge-- without the protection of a lawyer.
Other organizations were no better. Bill Goodman, a civil liberties attorney and former director of the Center for Constitutional Rights looked at the case and suggested that it be the subject of a civil lawsuit. He promised to contact the Center for Constitutional Rights and ask for their support. On further follow-up calls, he insisted that nothing could be done until the immigration case was over. At an initial meeting, the local NLG representative made the outrageous claim that Jubran's arrest had nothing to do with his political activities, but was a mere coincidence of broad sweeps of the Muslim and Arab community. She would later threaten a member of Jubran's defense committee that other NECDP activists should not expect any help from the legal community after they had spoken publicly of their dissatisfaction with Brill-an NLG affiliated lawyer. Although the AJDC had hired Brill privately and paid him more than $5,000, she spoke as though the NLG had provided Brill's services pro bono.
Response from the American-Arab Anti-Discrimination Committee (ADC), both local and national, was minimal. The local ADC took its cue primarily from the ACLU.
After the conclusion of the November 6 trial, members of the AJDC began to speak publicly about ACLU inaction. The Massachusetts ACLU Executive Director Carol Rose invited us to discuss our concerns in person. On December 3, 2003 we met with her, John Reinstein and Nancy Murray, and spoke of two things primarily:
1) The ACLU encouraged people to stand up for their rights-e.g. to insist on their right not to be questioned without an attorney. It then failed to act legally in their defense when they did so-this meant that the ACLU's campaign of community legal education tended only to put people in danger, since it gave them the false impression that they could expect a vigorous legal defense of their rights.
2) When the ACLU failed to take any legal action, it also undercut the credibility of the people targeted when they turned to the public for support.
Members of the AJDC had also been active in immigrant and detainee response networks in New England. One member had given the ACLU lists of names of individuals who reported abuse in detention.
ACLU representatives asked that detainees be encouraged to document these abuses in writing-an action that placed their testimony in the hands of prison guards, often the same ones who had subjected them to the abuse. In only one case did the ACLU send a lawyer to investigate further, after a delay of more than two weeks; by then the inmate had been transferred to another facility, and the lawyer did not attempt to investigate allegations of abuse by other prisoners at the same facility. The ACLU undertook no further follow-up action that might have protected the prisoners from reprisal.
Rose admitted that the ACLU had not won the faith of the Arab and Muslim community, and she looked to us for help providing some guidance for improvement. She asked us to put our concerns in a letter to her, and invited us to meet again in order to initiate a plan of further action. We sent a five-page letter reiterating what we had said in conversation; she replied by breaking off all correspondence.
In our meeting, ACLU attorney John Reinstein claimed that he had never been asked to take any legal action on Jubran's behalf, neglecting to mention Jubran's letter. He also insisted that no legal action-such as a suit for a violation of Jubran's constitutional rights-could be taken under the circumstances. The Supreme Court had already decided in the case of the LA8 that the federal government could selectively prosecute immigrants for deportation because of their political views. It was thus futile to litigate the matter further.
The View Nationally
Amer Jubran and Sami al-Arian had shared the stage as Palestinian activists in DC on April 20, 2001. In February of 2003, Al-Arian would be arrested and imprisoned on charges of "supporting terrorism." For the next eight months he was forced to rely on court-appointed attorneys who did little to help him. Much of his time was spent in solitary confinement under 23 hour lockdown. Serious defense did not begin until his defense campaign was able to raise enough money to hire private attorneys in October of 2003.
His trial is finally coming to a conclusion. It has clearly been a case of targeting for political speech and other legal activities in support of Palestinian organizations.
The targeting of Palestinian political activists has taken place within a broader context of attacks on Arabs and Muslims. This has allowed the government to conceal the political nature of its campaign: specific attacks against activists can be hidden under sweeping policies. The overall purpose has nevertheless been to silence a community living within the US that has intimate knowledge of US imperial crimes in Palestine, Iraq and the surrounding region.
On the whole, the civil liberties community has protested against these sweeping attacks on Arab and Muslim men; it has-perhaps for this very reason-tended to distance itself from more overtly political cases. Few rallied around Ali Al-Timimi-a religious leader sentenced to life in prison for preaching in his mosque against US imperialism. Imprisonment specifically of politically oriented Muslims who support armed liberation of their countries has been normalized in the full range of US discourse, even in cases where "support" consists entirely of speech.
On April 9 of 2002 Lynne Stewart was arrested for vigorously defending Muslim cleric Shiek Omar Abdel Rahman. Many progressive lawyers expressed outrage, above all because the action targeted a member of their own community. Equal support has not been extended to her two assistants, Mohammed Yousry and Ahmed Sattar, arrested at the same time. Though Stewart herself has said that she, her client, and her two assistants have all been subject to the violation of the same basic right to freedom of speech, leading civil libertarian David Cole would write instead:
"So how did the prosecution meet its burden against Stewart? With classic McCarthy-era tactics: fearmongering and guilt by association. First, it tried Stewart together with Ahmed Sattar, an Egyptian-born US citizen against whom it had thousands of hours of wiretaps of communications with a terrorist group. Among other things, Sattar had issued a fake fatwa urging followers to "kill Jews wherever they are." By trying Stewart and Sattar together, the government could taint Stewart with Sattar's sins, even though, as was the case with the fatwa, she had nothing to do with them and no knowledge of them." ("The Lynne Stewart Trial," The Nation, February 17, 2005)
Notice that Cole takes Sattar's "sins" at face value; he describes telephone conversations as "communication with a terrorist group," adopting the government's language. He objects not so much to trying all three defendants for their speech, but rather to Ashcroft's "tainting" of Lynne Stewart by association.
Legal Action as Part of a Strategy for Change
Reinstein's comments about the futility of litigating the rights of immigrants to freedom of speech and equal protection of the law after the 1999 Supreme Court decision in the case of the LA8 must be understood in its full ideological context. In fact, progressive lawyers have a long history of litigating cases on principle as part of a larger strategy of political change.
At an NLG forum in San Francisco in November of 2003, David Cole and Jules Lobel gave a talk entitled "Fighting (for) Justice after September 11: the Threat to Civil Liberties and What We Can Do About It." Lobel's talk centered around the issues raised by his book, Success Without Victory: Lost Legal Battles and the Long Road to Justice in America. He affirmed that it was not only necessary to fight "winning cases" that establish precedent. Where poor legal precedents have already been established, it was still necessary to fight "losing cases" in order to build political movements-in some cases political movements that will help to change the law.
Thus it was necessary to continue to challenge slavery in the courts after Dred Scott, since this was a part of building the movement to abolish slavery. It was equally useful to litigate against US military intervention in Central America-though bound to lose-because this would contribute to public education and the building of a movement to stop US military intervention.
This analysis leads to an important corollary: although a civil liberties attorney might take a "winning case" on principle in defense of freedom of speech for a cause he does not support, he will not take a "losing case" if the only consequence will be to build support for that cause. A "progressive" attorney might defend the free-speech rights of a Nazi or pedophile if he believes that it will set a valuable precedent in defense of the free-speech rights of all. He might take a "losing case" if he supports the political cause it represents.
Based on the official position of the National Lawyer's Guild in support of the Palestinian Right of Return and other similar positions, one would expect strong support in NLG chapters across the nation for the rights of Palestinian activists in the US. The NLG has historically helped in the defense of Palestinians; David Cole continues to represent the LA8 in their ongoing appeals.
In Boston, this support has not been forthcoming from any of the existing organizations. In addition, active members of the civil liberties community who have taken public stands on the Palestinian cause have clearly been on the side of "left Zionism." Our experience suggests that "left-Zionists" in particular may have an interest in silencing Palestinian activists, since this allows them to dominate what passes for "pro-Palestinian" politics in the US. Palestinians who call for strong positions in support of their full historic rights to land and their right to defend themselves from colonial settlers "by any means necessary" are frequently repudiated and shut out of public venues by these same nominal "pro-Palestinians."
Will ideologically committed "left-Zionists" be likely to continue mounting challenges to the rules of "ideological exclusion" if they are not likely to win cases in the current ideological climate? Will they do so if one consequence will be to give Palestinian radicals a larger voice in the political movement?
There are individual lawyers in the existing civil liberties organizations who genuinely fight for the rights of Palestinians. There are young legal activists who support the full range of Palestinian rights. But these individuals are buried under the larger organizations and have no coherent voice.
Locally, in our attempts to fight repression, we have found that we cannot in good conscience provide Arabs and Muslims asking for legal aid with NLG, ACLU or ADC contact information, since we cannot rely on their genuine help. This is especially true in cases of activists targeted for their political views. Local immigrant rights and civil liberties organizations have largely confined their challenges to post-9/11 government action to defending what they call "innocent immigrants"-this means primarily non-political people who have been arrested as a result of racial profiling or other sweeping institutional and legislative actions. Even here their record has been shoddy.
We need an organization of radical lawyers who truly believe in the right of Palestinians to self-determination, including their right to speak out on behalf of their struggle here inside the US. Only such an organization will be willing to defend those rights zealously.