Star of David … Land of Myth

{Previously published in CounterPunch May 28, 2021}

“We stand for justice, truth and the value of a single human being.” With these simple but powerfully inspiring words, a life-time ago, the world held-out hope that at long last international law and accountability would progress from abstract, esoteric principle to momentous binding application. The Nuremberg Tribunals spoke directly to the pain and suffering of tens of millions of civilians swept up into the geo-political chambers of supremacist hate and violence, victimized by an unprecedented rampage of the relative few who committed a calculated, gruesome violation of human rights. Yet, before the ink had even dried on exalted ideals and commanding words, Europe was at it, once again, with the forcible implant of a generation of surviving victims into age-old Palestine, indifferent to how many new victims were crushed by its latest colonial project which continues brazen, unchecked and deadly all these decades later.

What is there about our shared journey that permits us, with ease, to consciously blind ourselves to the grief of others because it aches too much to see the obvious? That upends echoes of pain as screams come in unbearable waves that leave no doubt of its horrible source of crimes, in progress, of broken families and dreams never to be dreamt? What finds escape in crafted denial that accepts no combat from waves of reality… for to handle truth is, seemingly, well beyond our collective capacity? It is the story of our day. Star of David … land of myth.

We live in times where the yardstick of reality is a measure beyond the conscious, willing reach of many, while to others but a passing, indifferent glance too numbed by the spin of daily life to stop and feel the pain and suffer of those regarded as little more than a momentary snapshot of another distant world. It is within this discount that the Star of David has found comfort, indeed empowerment as it has upended a value system held out long-ago to be the universal pathway of international justice for all.

For generations, the world has been a largely silent witness to an unbridled Western enterprise erasing millions of Palestinians from their unbroken ancestral homeland in the name of a diabolical resettlement project built of tenants with enduring leaseholds elsewhere dating back for as long as the West has been settled. Yes, the Old Testament (and other historical religious narratives) as so much providential design, speaks of the Jewish people and the Holy Land as if not just inexorably intertwined, but apparently, it is claimed to the exclusion of all others. However, let us not forget like beauty resting in the eye of the proverbial holder, elsewhere in sacred text we learn the universe is just over 6000 years old; Joshua stopped the sun moving across the sky; Lot, the only righteous man in Sodom offered up his virgin daughters to be gang-raped by a mob; a human witnessed a conversation between God and Satan; that two of every animal fit on a boat for forty days while a flood destroyed the world; that humankind was formed of clay; that the Jewish God, YHYH, fought a monster named either Leviathan, or Rahab or Sir Sea; that the serpent in Eden talked to Eve; that David’s harp was played at night by the wind; and that Samson fell 1,000 Philistines with the jawbone of an ass. Star of David … land of myth.

This is not to say that Jews, like Muslims, Christians and non-believers alike, have no claim to live in the Holy Land, in peace, with equality and justice side by side … but simply to provide context to the land-grab preach of messianic Zionists willing and enabled to commit the most heinous of crimes because they speak to their God and, having heard back, reason they have received an age-old green light to abuse, to steal, to cripple, to murder in the name of their fanciful biblical “right of return.” If this is to be the divine decree of YHYH, I for one want no part of any such deadly theocratic temple of heresy. But what of others… those that keep eyes closed and heart icy cold, stripped of principle and voice, soundless while the palpable unspeakable orgy of history repeats itself day in and out, targeting Palestinians, in particular its very young and very frail. Age-old communities which seek nothing but the right to be left alone, with family and friends, to tend to their fields, to pursue their education, free to journey where they wish, with whom they want, to chase their dreams and hopes, not simply with the crafted, deflective talisman of “dignity and respect,” but in a state of their choice with values and aspirations of their choosing. Star of David … land of myth.

Tragically, it is far too easy to compartmentalize our world into victimizer and victim, giver and taker. It is define clearly road-marked, or should I say pockmarked, by a seeming endless trail of pillage and pain. Nowhere is that more flagrant than in the occupied Territories… nowhere more predictable and purposeless than it is in the killing fields of Gaza. I have written about Gaza for years. There is little I can say, now, about it that has not been said by me and countless others time and time again. It is a vision of extreme cruelty and criminality long memorialized by all the world to read of and see, if only one’s thirst for knowledge takes them beyond the empty, craven pretext of those who would target and murder civilians, leaving behind the constant wail of mourn and a trail of tattered essential infrastructure and broken hearts. Star of David … land of myth.

But what of Israel itself, the “Nation-State” that exalts the democratic ideal but holds near and dear a dark, supremacist theology that promotes Judaism and Jews to the exclusion of all others and divergent faiths? Twenty percent of Israel proper (if ever a misnomer) is, in the words of fundamental ethnic cleanse, “48” Arabs, not Palestinian, as if refusing to flee the grand Zionist pogrom of 1948, re-invented by political fiat an age-old culture and tradition to fit the new European imposed and packaged narrative. It continues unabated and unabashed today with largely European Ashkenazi’s promoting a political reality defied by unmistakable, glaring human truth. No … “48” Palestinians are not equal in any way of consequence at any time of meaning when weighed against the Jewish state and its Zionist agenda … one that reduces all others to but convenient ritualistic stage props for the dutiful … those unable, or willing to discern the disguise of rhetorical makeup which covers inequity at its worst. Star of David … land of myth.

Where is the Israel of today? In 2018, its parliament, the Knesset, passed a new foundational act referred to as the Nation State law that canonized Jewish supremacy over all of its Palestinian citizens. In unambiguous, seismic- like, terms the law removed any and all pretense about the nature of Israel, identifying the State of Israel as the nation-state of the Jewish people alone. The law, which promotes no allegiance to democratic norms or guarantees of equality, fails to mention, let alone outlaw, discrimination on the basis of race, nationality or ethnicity. Designating Hebrew as the sole official language of Israel, it stripped Arabic of its previous de jure state status. It recognizes only the Jewish people as having a national right of self-determination and calls for promotion of “Jewish settlement” within Israel to the exclusion of all other groups, ethnicities and faiths. Constructed of unmistakable apartheid features, the law celebrates overtly racist acts leaving no doubt about the second class status of Palestinians citizens, defining sovereignty and democratic self-rule as belonging solely to the Jewish people of the world no matter where they may reside.In relevant part, Act 1 of the law states that “the Land of Israel (“Eretz Israel”) is the historic national home of the Jewish people, in which the State of Israel was established, and in which the Jewish people exercise its natural, cultural, and historic right to self-determination … which is solely for the Jewish people.” Act 2 limits state symbols, holidays and recognized religious practices to solely those that are Jewish in history and character. Star of David… land of myth.

Under the law, hundreds of admission committees throughout Israel have the power to reject applications from Palestinian citizens to live in communities on the grounds of “cultural incompatibility” thus legitimizing communities across the country designated for Jews only. One recent challenge to state policies that seek to control and purify the landscape speaks volumes. Thus, not long ago, a magistrate’s court on the outskirts of Haifa denied a request for the establishment of an Arabic school or funding for Palestinians to be bused to nearby ones. In relying upon the specific legislative aim of the nation-state law, the court held the presence of Palestinian citizen/students would undermine the town’s “Jewish character.” In another successful effort by the Israeli to deny equal educational opportunity to all there is no Arabic-language school for a population of approximately 3,000 Palestinian students in Nof Hagalil (formerly Nazareth Ilit), a town where they constitute 26 percent of its residents. This is the rule and not the exception in Israel where Palestinian citizen/students largely attend segregated schools denied equal funding and resources routinely doled out to Jewish contemporaries… thus marginalizing and placing them at a systemic educational disadvantage. In Israel, economically disadvantaged Palestinian students do not receive the same level of financial support as do Jewish students with the same financial needs.

Elsewhere, Palestinians are typically denied apartments and homes or land leased for commercial use that is designated for Jews only… thereby consigning them to segregated poverty ridden neighborhoods due to a lack of educational and religious services or state sanctioned discriminatory housing practices. This reality is a direct and desired result of budgeting policies that divert public funds to Jewish councils, communities and individuals… and not Palestinian… for the purpose of ensuring exclusive Jewish enclaves. Indeed, regulatory practices have significantly reduced the areas designated for Palestinian local councils and communities which now have access to less than 3% of the Israeli land base. As a result, more than 90% of that land is under state control and, thus, subject to nation-state regulations which have succeeded in limiting new housing and business opportunities to Jews only. In a country where Palestinians comprise over 20% of the total population and live in some 139 towns and villages, they receive only 1.7% of the state budget for local councils. Not at all aberrant or inadvertent, according to the Adalah-The Legal Center for Arab Minority Rights in Israel, Israel maintains over 65 laws that overtly discriminate against Palestinians.

For example, government funding is denied to Palestinian institutions that commemorate the Nakba or challenge, by speech alone, the existence of Israel as a “Jewish and democratic state” or commemorating “Israel’s Independence Day, or the day on which the State was established, as a day of mourning.” Likewise, an association or political party cannot be registered if among its goals is the denial of the existence of the State of Israel or of the democratic character of the state. Under the law, the candidacy of any party or individual that denies the existence of the State of Israel as the state of the Jewish people or the democratic character of the state or one that incites racism is prohibited.

Needless to say by design these government practices have inflicted great and disproportionate injury to the health, safety and welfare of Palestinian citizens throughout Israel. Year in and out the Palestinian population has been found to be far behind Jewish contemporaries in life expectancy, infant mortality, morbidity, diabetes and obesity. There are significant gaps in the extent and quality of health-care services provided to the country’s Palestinian residents compared to those that are Jewish. Nowhere is the damage of the nation-state law more palpably visible than it is to Palestinian Bedouin citizens who live under constant siege by an Israeli military that routinely demolishes their homes and villages, as unrecognized by the state. Several hundred thousands of Bedouins have no access to government services including no support from the Israeli electricity grid or its water infrastructure system. Star of David … land of myth.

Israel, and its choir, take great pride in extolling and preaching its democratic ideals and opportunity to the rest of the world… no matter how plainly desperate its overreach and fraudulent its claim. Seldom does a day pass without a Zionist apologia for its crimes against humanity, its war crimes, its genocide … skillfully relying upon the cheap talisman that, as the only democracy in the Middle East, it is entitled to do whatever it must to protect its noble call for all its citizens. For the poor, for the oppressed, for the dissenter, for those of a different skin, faith or gender there is nothing unusual or unique about this, by now, timeless pretext. Israel is not alone in its shout to democratic equality that, historically, has meant little more to many than the tyranny of the majority.

What is democracy? Was it not a democratic ideal that ravaged indigenous communities throughout North America; that assaulted Africa to kidnap natives as commodities for sale in slave markets in the South; that denied women the right to vote and full equality throughout the United States… reducing them to mere chattel for centuries? Ask a Muslim in France about the democracy that strips her of her Hijab or the young German activist imprisoned because his speech crossed the line of acceptable. Yet, the democracy of Israel is very much an unmatched sinister blight on the contemporary body politic of the world and has been for more than 73 years. A world body that shares the complicity and blame as it has stood by in idle silence funding an unbroken pounding of millions whose only offense is to be the age-old landlords of the consecrated earth that the Star of David demands.

So just who is this David …this star cast for 73 years to buff up the blood stained blue and white banner that has defiled the ancient as above Jaffa, Haifa, Ashdod and dozens of age-old Palestinian cities and villages extracting unbearable pain from so many for far too long? In the Book of Samuel, legend has it that David is a young shepherd who gains fame by slaying the giant Goliath, the titan of the Philistines who, as a foreboding harbinger of distant times to come, arrived in the Holy Land from Europe in the 12th century B.C. ,as an earlier colonial project of sorts. only to disappear from history some 600 years later. Today, David is that bruising, beastly giant and Palestinians… the shepherds.

2400 wds

May 26, 2021

Footnotes to article:

The Honorable Frederic Block April 16, 2021 Re: United States v. Betim Kaziu

[1] ” It should be noted that in its reply the government does not challenge the defendant’s argument that given the drop of count 4, the surviving counts are, for purpose of resentence, but one inchoate offense. See Dkt. # 300, p.66, at IV. Nor does it take issue with the defendant’s application that the court in its inherent discretion should reject an automatic, horizontal criminal history leap under 3 A1.4 from level I to level VI. Id. p.32, at D. Finally, the government does not rebut defendant’s argument that empirical research indicates he is less likely to recidivate than those charged with traditional crimes. Id. p.36, at E.

[2] But for a description infra of the conduct and sentences meted out in matters where the Government’s own expert Dr. Lorenzo Vidino testified, as well as other relevant terrorism cases that have come down since defendant’s initial sentence memorandum, Mr. Kaziu will not repeat here the litany of like prosecutions where those accused of conduct equal to or significantly worse than his, received sentences throughout the country far less than that originally imposed on him.

[3] Although the adjusted guidelines called for a sentence of life imprisonment, the maximum statutorily authorized sentence was 85 years.

[4] In its decision the court noted verbatim evidence of the exchange: “Selah: Akhi [brother] help us out, i have an akh [brother] who is planning on hitting a black car cop with a pressure cooker, the black car keeps following him, and he wants to avenge our akhs [brothers] who have been raided and blocked from hijrah [migration] . . . Is it permissible for him to do the attack and die purposely in the process? Hussain: Yes akhi [brother] he can do an isthishadi [martyrdom] operation on the police akhi [brother] . . . If he has no other way to fight them he can do it.” Id.

[5] In order to escape their attack, the agent was forced to reverse off of the highway and drive directly into oncoming traffic. Not long thereafter the coconspirators were arrested and the knives recovered including one that had been equipped with a built in window breaker that would have permitted them to enter the agent’s vehicle. Id.

[6] A subsequent search of a vehicle owned by Mumuni’s mother, uncovered another large kitchen knife in a duffle bag.

[7] On the basis of the “exceptionally serious nature of Mumuni’s conduct” when he attempted to kill the agent (“an act of terrorism for which he had received advance authorization from a Syria-based ISIS operative”) the government, in seeking a maximum sentence, noted a similarity to other terrorism defendants who had been recruited by the same foreign ISIS operative to commit like domestic terror attacks in the United States. No such comparison may be drawn with the facts at hand.

[8]. In remanding for re-sentence the Second Circuit instructed the sentencing court to pay particular attention to: (a) the nature and circumstances of the offense; (b) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (c) the need for the sentence imposed to afford adequate deterrence to criminal conduct; and (d) the need to protect the public from further crimes of the defendant. (As of this submission, Mumuni’s resentence has been continued due to COVID related scheduling problems and his request for an in-person appearance).

[9] Although Your Honor has not as yet ruled on defendant’s constitutional challenge to count one of his original conviction, it is respectfully submitted that even should the Court uphold it, under the attendant circumstances, the proposed resentence cap of 180 months would nevertheless be just and reasonable.

[10] https://www.nytimes.com/interactive/2021/04/10/us/covid-prison-outbreak.html? campaign_id=9& emc=edit_nn_20210411&instance_id=29113&nl=the-morning&regi_id=13612801 8&segment_ id=55362&te=1&user_id=cf06250f1047cba6655e00507f67e960

[11] The United States Secretary of Health and Human Services declared COVID-19 a public health emergency on January 31, 2020. The President of the United States declared a National Emergency on March 13, 2020.

[12] On April 1, 2020, The Bureau of Prisons implemented a modified-lockdown order. The 122 federal prisons were ordered to confine federal detainees to their cells for two-weeks in order to control transmission of the coronavirus. By May 27, 2020, over 5000 federal prisoners and over 600 BOP staff had tested positive for COVID-19. See Federal Prison System Goes Into “Modified Lockdown,” Government Executive, April 1, 2020, https://www.govexec.com/management /2020/04/federal-prison-system-goes-modified-lockdown/164286/. According to the BOP as of 4/9/2021 there are currently 208 federal inmates and 1,254 staff with confirmed positive test results for COVID-19 nationwide. Since the on-set of the pandemic there have been 230 federal inmates and 4 BOP staff deaths attributed to COVID-19 disease, with 46,792 inmates and 5,541 staff having recovered. See https://www.bop.gov/coronavirus/.

[13] The Marshall Project, A State-by-State Look at Coronavirus in Prisons, The Marshall Project, June 4, 2020.

[14] Like Sundays for Christians and Saturdays for Jews, juma’ah is the weekly Friday prayer meeting for observant Muslims. For prisoners of all faith, these congregational prayers are especially important providing great personal relief, strength and direction in dealing with the systemic difficulties of prison life and a play an important, helpful role in a prisoner’s on-going personal rehabilitation.

[15] Roni Caryn Rabin, “Vulnerable Inmates Left in Prison as COVID Rages,” The New York Times, 27 Feb. 2021.

[16] Id.

[17] Id. The scenario at FCI Danbury is amply detailed in reporting by the Times, including disturbing scenes of chaotic non-response: “When inmates felt sick, they often had to chase down medics and plead to be tested, and later beg for the results. Inmates weren’t removed from the general population until the results came back, which could take five days. When prisoners were secluded in groups after testing positive, they were left largely to fend for themselves, without basic supplies like acetaminophen or extra fluids. To call for help, they banged on the windows.”

[18] But for one fighting incident in 2011—when Mr. Kaziu was attacked by a prisoner spouting anti-Muslim hate—at FCI Allenwood at the very start of his sentence over a decade ago, Betim has had a flawless record while incarcerated. Mr. Kaziu describes the fight as a kind of “initiation” into prison life, after which he was mostly left alone, if still subjected to frequent verbal abuse by staff and other prisoners for his religious beliefs, and his status as a “terrorism” convict.

[19] Indeed, for Betim Kaziu, and other inmate survivors, it may yet grow worse, with recent empirical data showing COVID recuperation does not render one immune from its potential deadly repeat. With growing numbers, there have been dozens of documentedreinfections around the world, which is almost certainly an undercount with the most recent being here in the United States at the Greater Richmond Transit Company in Richmond, VA which reported a COVID-19 reinfection within the company in April 2021. https://www.wric.com/health/coronavirus/how-common-is-covid-19-reinfection-doctors-weigh-in-following-first-known-reinfection-within-grtc/. For this reason the CDC states that even if you test positive for antibodies “You should continue to protect yourself and others since you could get infected with the virus again.” https://www.cdc.gov/ coronavirus/2019-ncov/testing/serology-overview.html #:~:text=Having% 20antibodies% 20to%20the%20 virus,this%20protection% 20may%20last.The steps to protect yourself continue to be staying at least six feet apart from others, masking and hand washing, getting vaccinated, as well as avoiding crowds and poorly ventilated spaces. https://www.cdc.gov/ coronavirus/2019-ncov/prevent-getting-sick/prevention.html. Of course, none of these essential safeguards are present or possible within an FCI setting.

20] Unable to accomplish a face to face visit with Mr. Kaziu because of COVID restrictions, the information presented herein has been obtained through a series of discussions with Mr. Kaziu and his family by telephone.

[21] See, appended hereto, as Exhibit A, supplemental affidavit of Dr. Yasir Qadhi.

[22] See, https://bridge.georgetown.edu/research/factsheet-lorenzo-vidino/. Authored by the Georgetown University affiliated Bridge Initiative, this report takes specific issue with the independence and objectivity of Dr. Vidino. The project self-describes as a “multi-year research project on Islamophobia which aims to disseminate original and accessible research, offers engaging analysis and commentary on contemporary issues, and hosts a wide repository of educational resources to inform the general public about Islamophobia.”

[23] Notwithstanding Dr. Vidino’s marginalization of contemporary Egypt’s role in Islamic tradition and study at the time of the defendant’s journey, Dr. Qadhi reaffirms its age-old role as a cornerstone of immersion in both Islamic scholarship and Arabic teaching.

[24] As noted in defendant’s opposition to the government’s request to proceed to sentence on the papers alone, while, courts in the Second Circuit were, at one point, unable to consider post-conviction rehabilitation in prison as the basis for departure where a defendant was being resentenced for the “same offense” (see Quesada-Mosquera v. United States, 243 F.3d 685,686 (2d. Cir. 2001), it could not, in any event, apply to the facts of this case where Mr. Kaziu’s resentence is for a different course of conduct and offenses than those for which he was originally sentenced. Under these circumstances the reasoning of United States v. Core, 125 F.3d 74, 75 (2d Cir. 1997)(post-conviction rehabilitation in prison may be considered in resentence pursuant to successful §2255 motion) remained undisturbed. See, also, United States v. Bartz, 2006 U.S. Dist. LEXIS 46395(D.Vt. 2006)(Murtha, J.)(“post-offense rehabilitation has only been considered when a defendant is being re-sentenced for a reason that is independent of the rehabilitation.”); United States v. Lillard, 2006 U.S.LEXIS 5944(N.D.N.Y. 2006(McAvoy,J.) (“under 3582(c) … ‘post-sentence rehabilitation is not by itself a ground for modifying a sentence that has been lawfully imposed.”)(emphasis provided)(internal citations omitted). However, any question about the need for a nuanced application of post-incarceration rehabilitation in the resentence calculus was ultimately put to rest in Pepper v. United States, 562 U.S. 476 (2011)(categorical bar on consideration of post-sentencing rehabilitation evidence contravenes 18 U.S.C.S. § 3661 and the Sixth Amendment. Such evidence is relevant to several of the 18 U.S.C.S. § 3553(a) factors).

[25] In contrast stands the declaration of Dr. Qadhi as well as the updated pre-sentence report detailing Mr. Kaziu’ adjustment and activity during his years of imprisonment which establish that he satisfies these considerations by a preponderance of the evidence. Although the defendant is not seeking a downward departure in the classic statutory sense, where there is a dispute as to a relevant consideration bearing on sentence it has been held the burden of proof is the preponderance of the evidence. See, generally, United States v. Gigante, 94 F.3d 53 (2d Cir. 1996)(adjustments favoring the defendant met by preponderance of the evidence); United States v. Cordoba-Murgas, 223 F.3d 704(2d Cir. 2000)(“Moreover, on multiple occasions, this Court has instructed that proof by a preponderance of the evidence is the applicable burden of proof when a sentencing judge is asked to assess disputed facts relevant to sentencing.”).See, also U.S.S.G § 6 A1.3 (favoring preponderance-of-the-evidence standard for resolving all disputed facts issues at sentencing).

[26] The Hadith is the record of the traditions or sayings of the Prophet Muhammad a major source of religious law and moral guidance in Islam. http://www.oxfordislamicstudies.com/article/opr/t236/e0286.

[27] Dr. Vidino is not, however, a certified threat assessment professional or a credentialed forensic psychologist. See generally https://www.apa.org/monitor/2014/02/cover-threat American Psychological Association, Threat assessment in action, “Psychologists are leaders in the growing field of threat assessment, working with law enforcement and security professionals to prevent violence before an attacker strikes.”

[28] Caesar (referred to as Jane Doe by Dr. Vidino) and the cases to follow are cited in his CV as those in which he has appeared as an expert witness on behalf of the government.

[29] According to the Government’ proof for almost a year before her arrest the defendant provided material support to ISIS as a “committed” recruiter and self described “assistant” connecting ISIS supporters in the United States to ISIS facilitators and operatives abroad. Specifically, she repeatedly used numerous social media accounts and other electronic communication platforms to proclaim her support for ISIS and violent jihad, to recruit for ISIS and to attempt to help others join and fight for the group. She also expressed her own desire to travel to ISIS-controlled territory in Afghanistan to join the group and die as a martyr; obtained and renewed a visa and began saving money to do so, and created and disseminated on social media her own ISIS propaganda, including the ISIS logo next to a photo of then President Obama with an exploding gun next to his temple.

[30] In considering the concept of reintegration Dr. Vidino described two concepts: disengagement and deradicalization with the former a behavioral process marked by a change in role or function that is usually associated with a reduction in violent participation; deradicalization is an attitudinal or cognitive process that is completed when the commitment to and involvement in violent radicalization I reduced to the extent that the individual is no longer at risk of involvement and engagement in violent activity.

[31] In contrast stands the post-arrest conduct of Mr. Kaziu. Thus, there is no evidence before the Court that during the course of his 12 years in prison Mr. Kaziu has in any way shape or form expressed or communicated in prison, or to those outside, support for ISIS or any other designated terrorist organization, activity or individual, or conveyed he was prosecuted on the basis of his faith, or engaged in any activity that can be characterized in any way as extremist.

[32] Seehttps://www.justice.gov/opa/pr/florida-man-sentenced-10-years-federal-prison-bomb-charge

[33] Trial was suspended when a question arose as to Goldberg’s competence based upon a history of mental health issues. In rejecting a Rule 11(c) (1) (B) plea agreement calling for 96 months, the court imposed the higher 10 year sentence.

[34] In contrast to Dr. Vidino, Moustafa Ayad the Head of International Communication Programmes for the Institute for Strategic Dialogues, a non-profit global counter-terrorism organization, will not render an opinion of an “individualized assessment of a defendant’s risk of recidivism” at sentencing in the absence of meeting with the defendant beforehand. A qualified expert in Islamic extremism and strategies to counter violent extremism and manager of the Programmes Against Extremism Network, a group of former extremists and survivors of extremist events that conduct interventions, public peaking events and programming to stop the tide of violence, polarization and extremism globally, Mr. Ayad notes personal interaction with an individual is essential because “every individual case is different.” Like factors to be considered in a reviewing an individual’s decision to join an extremist organization Ayad notes risk assessment must weigh and balance “grievances around status regarding feelings of persecution, socio-economic status, mental health issues and the need for a purpose sort of driven life and a sense of community and identity.” See United States v. John Doe, 14-cr-00612-001(EDNY 2018)(Weinstein,J.)

In that same case, Dr. Vidino’s colleague, Seamus Hughes, Deputy Director of George Washington University’s Program on Extremism, agreed with Mr. Ayad that there is no generic marker system as to whether one will join an extremist organization or recidivate if released from prison. A former intelligence policy officer for the National Counter Terrorism Center and Senior Counterterrorism Advisor to the US Senate Homeland Security and Governmental Affair Committee, Mr. Hughes is a qualified expert on terrorism, homegrown violent extremism and strategies for countering violent extremism. Though not a “threat assessment professional” having spent some four hours interviewing John Doe and reviewing public filing on the case he was comfortable in submitting a risk assessment a to Doe and recommendation a to the term and conditions of supervised release were he discharged from prison. Testifying about the lack of de-radicalization programs in US prisons, Mr. Hughes opined that supervised release rather than prison can often be the best pathway to rehabilitation.“ I would share many of my colleagues view on this . . . on the narrow question of rehabilitation I think a lot of those issues could be achieved primarily through supervised release.” Id.

[35] See, also, United States v. Rakhmatov E.D.N.Y 2019 (32 years old convicted of conspiracy to provide material support to ISIS in a prosecution where Dr. Vidino testified for the government as an expert. Overt acts included providing money to fund travel of co-conspirator to travel and to join ISIS to fight and to purchase a firearm sentenced to twelve and a half years(the co-defendant was sentenced to but fifteen years, despite his more serious conduct including attempting to fly to Turkey to travel to Syria); United States v. Hendricks No.:1:16-cr-265 (N.D. Ohio)(defendant convicted, inter alia, of conspiracy to provide material support to a foreign terrorist organization with overt acts that included trying to recruit people on social media to train and conduct terrorist attacks in the United States on behalf of ISIS, assisting a codefendant to purchase an AK-47 assault rifle and ammunition from an undercover law enforcement officer, with Dr. Vidino testifying about ISIS recruitment, means and methods, views and language used in communications. With a guideline range of up to 480 months, defendant sentenced to 180 months).

[36] Other charges in the indictment included multiple counts of Killing a Person in the Course of an Attack on a Federal Facility Involving; the Use of a Firearm or a Dangerous Weapon; Maliciously Damaging and Destroying U.S. Property by Means of Fire and an Explosive Causing Death; and  Willfully and Maliciously Destroying Property within the Special Maritime and Territorial Jurisdiction of the United States and Placing Lives in Jeopardy.

[37] See https://www.justice.gov/opa/pr/mustafa-al-imam-sentenced-more-19-years-prison-september-2012-terrorist-attack-benghazi-libya.

[38] In observing that §3A1.4 was enacted by a congressional directive lacking in any supporting “empirical evidence ” the court rejected its significant mechanical upward adjustment, finding it often fails to account for the range of conduct covered by a given conviction.

[39] Along the way, Siddiqui became friends with Samir Khan a U.S. citizen who was a prominent Al Qaeda figure in the Arabian Peninsula and published a blog and magazine which promoted terrorism. He published one of her poems which promoted bombs, fists and slit-throats with “skies that rain martyrdom.” She also wrote letters of support to those convicted of terrorism related offenses or awaiting trial on such charges. Among others were one arrested for plotting to blow up a Portland Christmas tree lighting ceremony and another doing an 86 year sentence for a variety of terrorism charge including taking an M-4 rifle from a U.S. serviceman in Afghanistan and attempting to fire it at soldiers. Often heard espousing support for the “Boston Marathon Bombers” Siddiqui called Osama Bin laden and his mentor her heroes and Velentzas praised the 9-11 attacks.

[40] See, also, United States v. Hasanoff, 2020 U.S. Dist. LEXIS 199816 (S.D.N.Y. 2020) (Wood, J.) and United States v. El-Hanafi, 460 F. Supp. 3d 502 (S.D.N.Y. 2020)(Wood,J.) where respective defendants granted compassionate release following convictions for attempting and conspiring to provide material support to Al-Qaeda including “video cameras, computers, encryption technology, and even remote cars that could be converted into bombs,” as well as cash donations to it totaling $67,000. Hasanoff’s original 216 month reduced to time served approximately 120 months sentence due to rehabilitation and family circumstances. El-Hanafi’s sentence of 180 months reduced to time served (120 months) due to health conditions and in recognition that prolonging his incarceration would not achieve any deterrent value. Id. at 510.).

[41] Although discussed at length in the defendant’s initial sentence memorandum it bears repeating that recent studies indicate that recidivism rates are significantly lower for those convicted of extremist crimes than “traditional” crimes. See, generally, https://ctc.usma.edu/overblown-exploring-the-gap-between-the-fear-of-terrorist-recidivism-and-the-evidence/ (“A number of academic studies have recently looked into the issue of terrorist recidivism in a more systematic manner. Omi Hodwitz compiled a dataset of 561 individuals convicted of terrorism-related offenses in the United States between 2001 and 2018.Only nine of them recidivated (1.6%), five of whom did so in prison. However, only three cases were linked to terrorism (radicalization of other inmates), thus bringing the actual rate of terrorist recidivism (in the narrow sense) down to 0.5%.”); https://foreignpolicy.com/2020/02/20/entrepreneurship -terrorism-reintegration-recidivism/ (“A recent study released by West Point’s Combating Terrorism Center, which examined nearly 30 years of U.S. data, demonstrates that recidivism rates among the most dangerous category of jihadi offenders, namely people directly involved in violent terrorist plots, are far below traditional criminal recidivism rates.”); https://www.universiteitleiden.nl/binaries/content/ assets/ customsites/perspectives-on-terrorism/2019/issue-2/hodwitz.pdf (The “Terrorism Recidivism Study (TRS), a database collected with the sole purpose of filling in some of the blanks regarding recidivism rates and characteristics of individuals convicted of terrorism and terrorist-related offenses in the United States following 9/11[found] . . . out of the 561 offenders included in the TRS, only nine recidivated over the entire period of analysis. In other words, only 1.6% of the TRS sample recidivated between 2001 and 2018. . . All had been incarcerated for their original convictions, with an average sentence of 16.3 years and all who had been released had been granted supervised release, with an average of 5.2 years of supervision. All had a history of organizational affiliation, including Al-Qaeda, the Taliban, the Islamic State, Hezbollah, and Al-Fuqra. In addition to the low rates of recidivism, it is also noteworthy that five of the recidivists reoffended while still incarcerated, dropping the total number of released recidivists to four.”).

[42] “Currently, [the] BOP utilizes the Extremism Risk Guidance 22+ (ERG22+), an assessment tool for determining inmate extremism. First developed in the United Kingdom, this psychological, interview-based assessment tools is used for evaluating radicalization within prison populations. Drawing from these metrics, and from other BOP classification and designation tools, case officers determine which security and custody conditions are acceptable for incoming extremist prisoners.” See, for example, https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/Prisons%20Policy%20Paper.pdf at p.4.

[43] Seehttps://icct.nl/publication/rethinking-prison-radicalisation-lessons-from-the-u-s-federal-correctional-system/.

[44] Under a Special Administrative Measure (SAM) a directive can be authorized by the Attorney General for any inmate who is deemed to pose a current threat to national security or public safety. A SAM directive requires 100-percent live monitoring by the sponsoring law enforcement agency of an inmate’s communications and can impose other restrictions on an inmate, such as limiting communications to immediate family. See https://oig.justice.gov/sites/default/files/reports/a20042.pdf. In addition pursuant to administrative measures, the BOP may impose special conditions of confinement including “housing the inmate in administrative detention [a communications management unit -CMU] and/or limiting certain privileges, including, but not limited to, correspondence, visiting, interviews with representative of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of act of violence or terrorism.”DOJ Manual 9-24.000, Requests for Special Confinement Conditions.). See, https://www.bop.gov/policy/progstat/5214_002.pdf .CMU designations are coordinated by the Counter Terrorism Unit (CTU) which reviews Pre-Sentence Investigation Report (PSR); the judgment in a criminal case (J&C); Statement of Reasons (SOR); DHO reports relevant to referral, such as communication-related misconduct; and Relevant SIS reports, PC investigations; Memos, letters. . . from courts, United States Attorneys’ Offices, law enforcement officials . . . relating to the referral; any other information or intelligence related to the referral. Inmates may be designated to a CMU if evidence of the following criteria exists: (a) The inmate’s current offense(s) of conviction, or offense conduct, included association, communication, or involvement, related to international or domestic terrorism; (b) The inmate’s current offense(s) of conviction, offense conduct, or activity while incarcerated, indicates a substantial likelihood that the inmate will encourage, coordinate, facilitate, or otherwise act in furtherance of illegal activity through communication with persons in the community; See, i.e., United States v. Abu Ali, 396 F.Supp 2d 703 (E.D. Va. 2005)(Lee,J.)(defendant accused of conspiring to provide and providing material support and resources to terrorists and a foreign terrorist organization, al-Qaeda, and receiving funds and services from the foreign terrorist organization challenges pre-trial imposition of a SAM;. United States v. Al-Owhali v. Holder, F.3d 1236(10thCir. 2012)(Prisoner challenges SAM’s which, inter alia, prohibited him from corresponding with his nieces and nephews through letters, receiving two Arabic-language newspapers and a copy of former President Jimmy Carter’s book Palestine: Peace, Not Apartheid.).

[45] Cf.United States v. John Walker Lindh, 212 Supp.2d 541 (E.D. Va.2002)(Ellis,J)(Charged with, inter alia, conspiracy to kill US nationals including a CIA officer who lost his life and joining al Qaeda where he received training with weapons and explosives and met Osama bin Laden, Lindh was released after 17 years of a 20 year sentence having pleaded guilty to supplying services to the Taliban and brandishing a rifle and hand grenades while fighting against the U.S.-backed Northern Alliance. Although Lindh initially expressed remorse, while in prison, his position publicly changed. Among other such statements Lindh said “he was proud to take part in the Afghan jihad.” Identifying himself as Yahy, on another occasion he commented ISIS “was doing a spectacular job and later that “[t]he Islamic State is clearly very sincere and serious about fulfilling the long-neglected religious obligation to establish a caliphate through armed struggle, which is the only correct method.”Seehttps://www.nbcnews.com/politics/justice-department/letter-american-taliban-john-walker-lindh-said-isis-doing-spectacular-n1008871.).

[46] Cf. Royer v. Fed. Bureau of Prisons, 933 F.Supp 2d 170 (D.D.C. 2013)(Lamberth,J.)(Originally charged with conspiracy to levy war against the United States and conspiracy to provide military support to Al Qaeda, the defendant, who ultimately pleaded guilty to Aiding and Abetting the Use and Discharge of a Firearm During and in Relation to a Crime of Violence and Aiding and Abetting the Carrying of an Explosive and sentenced to 20 years brought action challenging BOP designation as a “terrorist inmate” at Terre Haute, a high security prison. Once there he was transferred to a Communication Management Unit under which he was not permitted to have any contact with the general inmate population, could only exercise in “steel cages,” was denied access to college credit courses, jobs, or vocational training, had no access to the chapel, was not permitted to study religious topics one-on-one with other inmates in the CMU, was permitted only one 15-minute phone call per week, was allowed only two visits per month limited to two-hours each and were required to be noncontact separated by a concrete and glass wall.)(Royer was ultimately resentenced to time served, approximately thirteen years, after one of the counts he was convicted of was, like here, vacated pursuant to Johnson v. United States 576 U.S. 591 (2015); Awan v. Lapin, 2010 U.S. Dist. LEXIS 24974 (E.D.N.Y. 2010)(Defendant found guilty of conspiring to provide personnel to a terrorist conspiracy and sentenced to 168 months of imprisonment transferred to Special Housing Unit pending outcome of an investigation into allegations he had recruited inmates at another institution and used institution telephones to communicate with known terrorists and because of concerns [his] continued presence in general population posed safety and security risks based on his past attempts to recruit other inmates into a terrorist organization, and his use of institution telephones to communicate with known terrorists.”); Chesser v. Walton 2016 U.S. Dist. LEXIS 151942 (S.D.Ill.2016)(Prisoner challenge to CMU limits placed on free exercise clause of religious beliefs at a Communication Management Unit at USP Marion where designated following conviction for communicating threats, soliciting others to threaten violence, and providing material support to terrorists and where some 23 other Muslims are also housed for mostly terrorism offenses.). See, alsohttps://www.ojp.gov/pdffiles1/nij/grants/220957.pdf at pp.34-35 (Mohammed Salameh, Mahmud Abouhalima, and Nidal Ayyad—incarcerated at the BOPs’ “super max” ADMAX in Florence, Colorado, for the 1993 World Trade Center bombing, wrote over 90 letters to Islamic extremists outside the prison between 2002 and 2004. Fourteen sent to prisoners in Spain who had connections to the terrorist cell responsible for the Madrid train bombings. Salameh also wrote several letters to Arabic newspapers, praising bin Laden as a hero.).

[47] Not at all novice in assessing the conduct and growth of those in prison for extremist crimes, the BOP has not and cannot take exception to this characterization of the defendant’s life in prison. Seehttps://www.counterextremism.com/sites/default/files/CEP%20Report_When%20Terrorists%20Come%20Home_120618.pdf (pp. 14-15)(“For its part, the BOP has put together a robust and competent counterterrorism infrastructure that includes an administrator and assistant administrator to oversee collaboration and communication between BOP Liaisons such as the National Joint Terrorism Task Force at the FBI57 and the BOP’s Counter Terrorism Unit (CTU). Their mission is to “identify and validate terrorist offenders in custody, provide translation and transcription services, monitor and analyze the terrorist offenders communications, produce intelligence products which enable staff to make informed decisions, develop and provide relevant counter terrorism training, and to coordinate and liaise with intelligence communities.”58 In addition, the CTU has access to the complete communication and behavioral record of violent extremist offenders, understands the inner workings of the federal prison system.”).

[48] https://www.lawfareblog.com/americas-terrorism-problem-doesnt-end-prison%E2%80%94it-might-just-begin-there., Lorenzo VidinoSeamus Hughes (June 17, 2018).

[49] As of November 1, 2018, the 101 Americans sentenced to prison for ISIS-related activities received an average sentence of 13.2 years in prison—with 27 serving sentences of five years or less. See, https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/Prisons%20Policy%20Paper.pdf at p. 13.

END

The Honorable Frederic Block April 16, 2021 Re: United States v. Betim Kaziu

{To follow along with footnotes [highly recommended] please open this link in another tab Footnotes to article: – caged but undaunted (wordpress.com)

The Honorable Frederic Block April 16, 2021

United States District Judge

Eastern District of New York

225 Cadman Plaza East

Brooklyn, New York 11201

Re: United States v. Betim Kaziu

Criminal Docket No. 09-660 (FB)

Dear Judge Block:

This letter brief is submitted in reply to the government’s sentence memorandum and to supplement the information and arguments set forth in our initial filing. Though the government does address a number of Mr. Kaziu’s underlying legal arguments1,in its race to convert a de novo re-sentence into a rubber stamp of the one imposed long ago (and before the invalidation of at least one count in the original sentencing calculus) it goes to great lengths to focus, almost exclusively, on an unrealistic apocalyptic view of the underlying conduct at bar.

In this vacuum, with mechanical parse, the government seeks to spin the real-world conduct a dozen years ago of, then, 21 year old Betim Kaziu into the same circle and sentence range of cases where those convicted of terrorism offenses engaged in actual extremist violence. It is a palpable remake that does not fit.2 In its crafted overreach to convince the Court that the 180 month cap which Mr. Kaziu seeks is substantively unreasonable, the government posits one case, and one alone, where a sentence was vacated for “drastically discount[ing] the seriousness … [of the] offense conduct based on a sterilized and revisionist interpretation of the record.” United States v. Mumuni, 946 F.3d 97, 106 (2d Cir 2019). To the degree the government relies on Mumuni as an example of a terrorism sentence upended on appeal as an unreasonable downward departure it is, when contrasted to the case at bar, a factual comparison without compare.

In Mumuni the defendant who pledged allegiance to ISIS was convicted of (1) conspiring to provide material support—including services and himself—to a foreign terrorist organization; (2) attempting to provide material support to ISIS; (3) conspiring to assault federal

officers; (4) attempted murder of federal officers; and (5) assault of a federal officer with a deadly or dangerous weapon. In support of these convictions the sentencing court was faced with and largely ignored undisputed, overwhelming evidence of a sophisticated plot involving multiple individuals and overt acts to commit mass murder in the United States and abroad. The terrorism spree also included at least one attempted armed assault of a federal officer in New York City and another, actual attack, in which Mumuni attempted to murder an unarmed FBI agent by stabbing him multiple times with an 8 inch knife he retrieved from his bedroom. In the ensuing struggle, he attempted to unleash further lethal havoc by reaching for the trigger of a fellow agent’s assault rifle. Id.

 In vacating the 17 year sentence, 3 and noting “the exceptionally serious nature of Mumuni’s conduct,” the Second Circuit detailed a plot which was a veritable working definition of aspirational terrorism at its worst; a conspiracy not just to travel abroad to join ISIS to commit deadly mayhem (with numerous overt acts undertaken in furtherance of it within the U.S.) but one which carried interim plans to unleash domestic death and destruction. Indeed, Mumuni is noteworthy, if not remarkable, for the very kind of planning and terrifying conduct that is markedly absent in the matter of Betim Kaziu.

Thus, in a chilling recitation of the facts, the Circuit Court took note that the defendant’s “offense conduct begins with his considerable efforts to provide material support to ISIS.” Among his overt acts, the court identified a five month period during which Mumuni and others helped facilitate the travel of a coconspirator to Syria to join ISIS which included accompanying him on a shopping trip to purchase equipment that would be of help to him while in ISIS held territory. Throughout this time Mumuni and a coconspirator (a “full-fledged” member of ISIS) began to save money for their own journey to Syria and researched flight schedules to do so. During this time, Mumuni and others planned an attack against law enforcement and, when arrested, detailed four separate occasions when he intended to attack officer were they to approach him or attempt to interfere with his travel to Syria. As part of this effort, a coconspirator not only offered a pressure-cooker bomb to Mumuni but obtained authorization from a “notorious Syria-based ISIS attack facilitator” to carry out his planned suicide attack. Id.4 In planning for the most deadly attack on officers, Mumuni was instructed by a coconspirator to use a bomb and fight afterwards. After seeking further direction Mumuni was told he should “first detonate a bomb, run over the officers with a vehicle, seize their weapons, and then use the weapons to shoot at other victims.” Several days later coconspirators executed an attack on an FBI agent who had been trailing them. When their high speed evasive maneuvers including driving with their lights off and running stop signs failed, they stopped their vehicle and charged him armed with a knife. Id.5 Two days later while in the presence of his mother and sister, Mumuni repeatedly stabbed an FBI agent, who had arrived with others to execute a search warrant at his home. Id.6/7

In vacating the sentence which included a computation of but 7 years for the attempted murder of the FBI agent, the Second Circuit court reasoned “[t]his clearly erroneous assessment of the evidence leaves us with the definite and firm conviction that a mistake has been committed—a mistake that resulted in a shockingly low sentence that, if upheld, would damage the administration of justice in our country.” 946 F.3d at 106. 8

Betim Kaziu is not Fareed Mumuni. Nor is he Adel Daoud, whose 16 year terrorism sentence was also vacated as substantively unreasonable where he pressed a button to detonate a fake bomb supplied by the FBI that would have killed hundreds of innocent people; who, in custody, solicited the murder of the FBI agent who supplied the fake bomb; and who, while awaiting trial, tried to stab another inmate to death using makeshift weapons after the inmate drew a picture of the Prophet Muhammad. See United States v. Daoud, 980 F.3d 581 (7th Cir. 2020). Nor does his actual conduct mirror the many other terrorism related prosecutions cited in our initial memorandum where those convicted of offenses equal to or far worse than his, received sentences significantly less severe than the one he received twelve years ago.

This submission does not seek to revisit either the nature and circumstances of the matter for which Betim Kaziu was convicted many years ago or the mitigation material, both factual and legal, which was presented to Your Honor in our initial sentence memorandum. See Dkt #300 p.6, A. We believe it speaks for itself and remains no less compelling today. We do however wish to supplement it with an update on just how the last year behind bars has impacted Betim Kaziu, as we believe it to be entirely relevant and material to the imposition of an appropriate de novo resentence. In addition, we take this opportunity to challenge some of the government’s assertions and argument in their reply to our initial submission and, with sentence parity in mind, briefly flesh out a number of like cases that have occurred in the time since our original sentence memorandum. Under all these circumstances it is respectfully submitted that in the light of Mr. Kaziu’s actual conduct; his life before the events at bar (see Dkt. #300 p. 8 at B) and rehabilitation since (id. p.42 at F); the fact that at least one of the counts upon which he was convicted is now invalid 9 and in due consideration of 18 U.S.C. § 3553, a de novo resentence of no more than 180 months would be reasonable and appropriate.

  1. In fashioning an appropriate sentence the Court should consider the unique circumstances of defendant’s imprisonment over the last year.

America’s prisons, jails and detention centers have been among the nation’s most dangerous places when it comes to infections from the coronavirus. Over the past year, more than 1,400 new inmate infections and seven deaths, on average, have been reported inside those facilities each day. The cramped, often unsanitary settings of correctional institutions have been ideal for incubating and transmitting disease. Social distancing is not an option. Testing was not a priority inside prisons early in the pandemic. With little public pressure, political leaders have been slow to confront the spread.”10

Since the advent of the COVID crisis in the United States,11 prisoners have occupied a uniquely vulnerable position in society, unable to control their contact with others, while confined and at the mercy of epidemiological happenstance. Intractable, continuing problems such as overcrowding in federal penitentiaries have shown in stark relief the dangers of incarceration in biologically uncertain times, as the penetration of the virus from the outside world—via corrections staff or visitors—has torn through hundreds of jails and prisons in the United States since March of 2020. FCI Danbury went into lockdown that spring, and movement of prisoners was sharply curtailed.12 A second lockdown occurred in the fall, as new COVID infections exploded in the Northeast of the US. In a single month of data collection during April 2020, more than 9,400 cases emerged in state and federal prisons across the United States according to an analysis by The Marshall Project. The number of cases grew three-fold in the final week of the one-month study. More than 140 people had died. By June 4, 2020, The Marshall Project reported at least 40,656 cases of coronavirus among prisoners, and nearly 500 deaths.13 As of today, in “federal facilities, at least 39 percent of prisoners are known to have been infected. The true count is most likely higher because of a dearth of testing, but the findings align with reports from The Marshall Project and the Associated Press, U.C.L.A. Law and The COVID Prison Project that track Covid-19 in prisons. ”See fn.10, supra.

Betim Kaziu has lived this past year in FCI Danbury in a state of suspension—unable to see his elderly parents, who can no longer visit; unable to study or take any classes to improve his mental health or preparing for a life after prison whenever that should come; and unable to gather with his co-religionists to worship, with the attendant impact on his Qur’an studies, and his spiritual practice. His family on the outside has experienced deaths and birth, and illness, but Mr. Kaziu is cut off from them; likewise he can no longer pray with other Muslims at the facility, due to social distancing requirements. The prison chapel has been closed for a year now, with no sign of re-opening anytime soon for the more than thirty men who participate in Friday juma’ah worship services.14

Mr. Kaziu was diagnosed with full-blown COVID in late June of last summer—he suffered a sudden-onset high fever, with respiratory distress, which plunged him into terrible weeks of nausea, fatigue, loss of consciousness on standing, and loss of taste and smell. Betim believes the “patient zero” in his housing unit at the low-security setting of FCI Danbury was a prisoner who was mistakenly diagnosed with pneumonia in the early part of the outbreak, and was not sequestered until several days into his illness. By the fall of 2020, Danbury had suffered more than 600 cases; Mr. Kaziu reports that in his specific housing unit, more than seventy men got sick. He believes at least one inmate died, and a two more were hospitalized with potentially fatal symptoms. His unit has an open dormitory arrangement, with military-style bunk beds; once a single prisoner became ill, it was fore-ordained that all would fall sick with the virus. The dining hall was closed some nine months ago as a precaution, to keep housing units from inter-mingling; now prisoners grab food trays outside the kitchen, and return to the dormitory to eat at their beds. Seventy men share six toilets and six sinks on the unit, and hygiene has suffered as the men are cooped up for weeks at a time, with only scant access to fresh air and outside relief; many prisoners stopped bathing, as they were frightened of the close contact in the damp, non-sterile and cramped shower areas. Daily recreation was cancelled a year ago, and prisoners in the low-security facility get erratic, once-a-week (or less frequent) moments to go outside in small groups for an hour. At night, Betim reports, “twenty guys are snoring around you,” and the stench is repulsive. As noted in recent news reporting,15 “Minimum- and low-security settings like the federal prison at Danbury, where many inmates live in large dormitories separated by partitions that don’t reach the ceiling, are even more conducive to the spread of the virus than maximum-security prisons with cells that house only one or two inmates.”

Indeed, the results have been predictable: “The coronavirus has infected more than 620,000 inmates and correctional officers in the nation’s prisons, jails and detention centers, according to a New York Times database. Nearly 2,800 inmates and guards have died, making correctional facilities among the most significant battlefronts of the pandemic, along with nursing homes and schools.”16 Specifically, at FCI Danbury, there have been at least two distinct spikes, and in the most recent surge of cases, ten percent of inmates were infected: “In December, cases at Danbury rebounded as more than one in 10 inmates at the complex tested positive for the virus.”17

While masks have been provided to prisoners, hand sanitizer is not available, unless a prisoner purchases it with his own commissary money; in any event, the sanitizer is nearly always sold out and unavailable, with or without funds to pay for it. Mr. Kaziu concedes that he has developed a “germ phobia” in the past year, which he believes is partly irrational, but he cannot stop worrying about getting sick again, noting that there normally are other viruses and bacterial problems in an unhygienic prison setting, and that vulnerability to COVID makes all those problems worse.

Mr. Kaziu reports that he “feels okay” now, and has recovered his health, although he suffers some lingering effects since his illness, including moments of “brain fog,” and feeling the compounding, grinding effects of psychological stress, which have mounted and exploded in the prison population, as prisoners cope with the loss of recreation, visits from family, circulation out of the dormitory, and increased crowding. “Stress is out of control here now,” he says, noting that prisoners are fearful, mistrustful of one another, and isolated. Mutual respect levels are in decline, Betim observes, with “younger guys losing it,” or having episodes of anger or “cracking up,” unable to exercise self-discipline in the on-going crisis, with incidents of arguments, threats and violence increasing. “It takes discipline and good luck,” Betim advises, to stay out of trouble, and not get written up for some minor infraction, as prisoners and staff alike break under the stress of the epidemic and lockdown. Indeed, Mr. Kaziu specifically fears that the longer he stays at Danbury, the more likely it is that his near-perfect 18 discipline record will be marred by some petty event precipitated by the stresses of the environment. Just recently, Betim was “written up” by a corrections officer for a discipline infraction—in this case, having his shirt un-tucked while outside the dormitory (which he notes was incorrect, as he was inside the dormitory entrance). The perhaps over-zealous officer subjected Betim to a pat-down search of his body, violating the social-distancing rules; his protestations triggered a second discipline violation for disobeying. When Betim appealed the infraction on his record to the commanding officer, the lieutenant agreed with Mr. Kaziu, and removed the black marks from his record. “But I’m worried it’s only a matter of time before something happens to me in here, I’m stressing all the time, and so is everyone else,” Betim says. “A guard could decide he’s going to make my life hell, and there’s nothing I can do about it.”

Recreation and exercise—which are known to keep incarcerated populations manageable by reducing stress—has been severely curtailed during the lockdowns and general environment of the COVID year—while officially, recreation is supposed to be every other day, in actual practice, it has been cancelled most times for a year, and they only get outside once a week. In addition, the inmates at Danbury are prohibited from using any of the exercise equipment, or playing any ball games or team sports. The only permissible activity is walking outdoors in the field, or running, during the brief respites they are afforded weekly from the dormitory. Most recently, library time is offered again, but only for legal access to case-law material; if an inmate opts for library time, he will not get his recreation hour.

The year of COVID has most of all revealed the stresses in prison life when one can no longer have contact with family on the outside. For Betim, his regular visits from his devoted parents and siblings, driving up from the city, kept his hope and his faith alive in his heart, and have done more to help with his personal reformation than any programs or punishments. Seeing his parents’ faces—still imbued with love for him despite all that his happened, despite the ruination of his life as a young man—has kept him focused on his own redemption, to earn their good graces and love and to be a dutiful son, even while in prison. Since the pandemic began, no visits have been allowed for a year, and he has not seen his family in all this time—visits were only just re-approved this month, but Mr. Kaziu has told his elderly parents to stay away for the time being, as he does not want them risking unnecessary exposure, and as of this writing, they have not yet been vaccinated for the Coronavirus. In the intervening year, his sister had a baby who Betim has not yet seen; his closest uncle died of cancer, while a second uncle is in the hospital for chemotherapy.

Mr. Kaziu notes that “lockdown never really stopped—we’ve been like this for a year now.” Successive waves of the virus surge have meant all the socially-positive aspects of incarceration—that is to say, those elements of a prisoner’s life which are rehabilitative—have evaporated, and the low-security men’s facility at Danbury just feels like constant punishment, with no redemption. Betim feels like he has aged five years in the last twelve months—stress and ill health have weakened him, and if the pandemic does not end soon, things will get worse inside prison facilities. 19 In some respects, Mr. Kaziu wishes he were back in a tighter-security facility, where he would at least be separated from other inmates in a cell, perhaps with one other cell-mate, and less vulnerable to epidemiological risk. “This has been hard time here, even though it’s just a low-security place,” Betim notes. “I know this has been the toughest year I’ve done since I went to prison.”20

B. The Court should credit Dr. Qadhi’s conclusions about Mr.Kaziu

As indicated in his original submission to the Court and supplemented by his most recent affidavit,21 Dr. Qadhi has concluded that based on his face to face interview with Betim Kaziu, as well as his review of various court records and submissions, and in the light of the years Kaziu has spent imprisoned beginning from age 21, and his evolution since, the now 32 year old defendant manifests no indication of relapse into what was very much a period of relatively isolated and alienated juvenile conduct many years ago. Although Dr. Qadhi cannot predict with absolute certainty just how well he will do if discharged from prison and placed on intensive supervisory release, he has concluded that Betim Kaziu is no longer the ill informed and lost, angry young man who years ago fell prey to the extremist rhetoric and spell of the day.

Yasir Qadhi is no idle academic. Nor is he a naïve, detached dilettante regarding the preach of Islam, or the periodic bursts of misplaced extremism that claims its roots in this age-old faith. One of the world’s most respected Muslim clerics, he has not only spent a lifetime in deep study and reflection upon Islam, its call, faith and promise, but worked with and counseled thousands of young men and women (many of them troubled, if not, torn) and their families often confused by the distortion, rhetoric and hate of the day; that propagated by Islamic extremist groups around the world, as well as that from Western supremacist groups which have often made it all but impossible for Muslims of all ages to practice their faith and culture with calm and simple pride.

There is no magic or simple series of talisman that can guarantee that those once trapped by the lure of religious extremism, ensnarled by its wretched scream and drive can quickly or easily escape its admittedly ugly reach. Yet reflection, regret and reform spread over time can, according to Dr. Qadhi, and other seasoned experts, facilitate the safe return of a lost young man or woman back to the true tenet of their faith, their home, and their community. Dr. Qadhi believes that Betim Kaziu has navigated that difficult journey, and is ready now to begin that reintegration process outside of from behind the bars he has called home for twelve long, painful and lonely years both for him and his family.

Very few have looked into the eyes of alienated, angry and confused young men and women seeking answers from a faith and tradition from which they ask guidance but at times are lost, indeed, overwhelmed by the tension between a rich and peaceful ancient history and the nihilism and victimhood suffered by tens of millions of Muslims over these last several decades. Yasir Qadhi is one such glance. Even fewer have toiled at providing relief and direction from that heartache. Yasir Qadhi is second to none in that effort.

In very much a parallel world, the government offers an affidavit from Dr. Lorenzo Vidino in opposition to the conclusions of Dr. Qadhi. Though the submission is rich and long in academic credential and experience, it takes issue not with the ultimate findings about the defendant’s prognosis, but posits a brief, largely irrelevant, objection to several of Dr. Qadhi’s points; challenges based not upon first hand interaction with or interview of Mr. Kaziu, for there has been no such meeting between the two, but rather abstract disagreement. Nor in reaching his conclusions, does Dr. Vidino refer to any material contained in the trial transcripts or discovery, the pre-sentence report and its update, or any discussions with witnesses to events that, for Betim Kaziu, occurred a life-time ago. To the contrary, the Vidino affidavit with its three inapposite points is little more than a compilation of one size fits all; a generic, academic application of sweeping stereotypical presumptions regarding all those charged with acts purportedly connected to Islamic extremism.22

As to the first two Vidino points, Dr. Qadhi agrees: not all young Muslims who go off to join what they consider to be obligatory Jihad are entirely unschooled or ignorant of many of the fundamental, literal tenets of Islam. As he notes, there are those who have spent considerable time in the study of Islam, becoming prolific in its words, but yet lost in their true, intended meaning. Betim Kaziu was no such religious journeyman. Likewise, Dr. Qhadi agrees that, for some, Egypt has been a station-stop of sorts for those committed to ultimately joining an extremist group, while others, such as Mr. Kaziu, arrive on an aimless jaunt seeking a surreal bit role in an extremist world they do not understand, let alone truly embrace.23

Yet none of the conclusions reached by the government’s expert on religious extremism sheds any reasoned light on three of the key considerations before the court under 18 U.S.C.§ 3553 in crafting a reasonable and appropriate resentence for the defendant: 1) does he continue to pose an on-going threat to the community if released from prison now or in the near future; 2) has he exhibited signs of personal growth and rehabilitation over the many years of his imprisonment; 24 and 3) can strict and long-term conditions of supervised released balance the needs and safety of the community as a whole with the liberty interests of the man that is the Betim Kaziu of today and tomorrow. None of these concerns is addressed let alone resolved through the insipid, largely irrelevant submission of the government’s expert.25

C. Dr. Vidino provides no relevant insight into Mr. Kaziu’s status

On its face, Dr. Vidino has an impressive CV. Director of the Program on Extremism at George Washington University, he has a JD in International Law, an MA on Law and Diplomacy and Islamic Civilization and a Ph.D. in International Relations. Although fluent, to varying degrees, in Italian, English, Spanish, German, French and Dutch, he does not speak Arabic, Farsi, Urduh or any of the half dozen other dialects prominent throughout the Middle East, Gulf and Africa, regions at the heartbeat of the very subject matter about which he speaks, writes and, more recently, testifies to. Nor does it appear he has spent any time of consequence living or traveling in these very regions, although one must assume that if it were the case, that journey would be set forth in rich detail in his CV. It is not.

Most important, markedly absent from his academic credentials is any specialized training or qualification in Islamic theology which demands years of immersion in traditional study including in the Quran and Hadith,26 and Islamic fiqh (jurisprudence) and ‘aqidah (creed/belief), essential steps on the pathway to the status of respected Islamic scholar or Imam. These disciplines are among those, according to Dr. Vidino, that have contributed to Dr. Qadhi’s prominence as “America’s most famous conservative Islamic cleric.”

An author of several books on the Muslim Brotherhood and Al Qaeda and dozens of articles on terrorism, Dr. Vidino has a history of related presentations at conferences throughout the Western world. A court certified expert on ISIS, over the last several years he has been called upon by the government as it’s go to guy in prosecutions in various parts of the country providing background on ISIS, the role of U.S.-based ISIS recruiters and facilitators, the significance of certain language used by defendants in the commission of offenses, and some of the central factors used to assess an individual’s so-called disengagement from a terrorist organization/extremist ideology. 27

With this background in view it is entirely understandable why the Government has not submitted any opinion from Dr. Vidino as to the current status, rehabilitation or “threat assessment” of Mr. Kaziu who having been imprisoned at age 21 is, as noted, now 32 years old. Indeed, having not interviewed the defendant nor, apparently, examined the trial transcript, or any of the discovery, or relevant court documents, it would appear the sum and substance of the Vidino declaration is limited largely to a general and misplaced challenge to three of Dr. Qadi’s points of consideration in his own report.

Yet, in other respects, the work, testimony and results of Dr. Vidino’s past efforts on behalf of the Government should, upon examination, assist this Court in rejecting his “conclusions” here and reaching a reasonable and appropriate re-sentence in line with the one proffered by Dr. Kaziu. Thus, in the matter of United States v. Caesar Criminal Docket No. 17-48 (JBW) Criminal Docket No. 19-117 (E.D.N.Y)(JBW) 28, the defendant, a 24 year old woman with a history of physical and sexual assault, stood before the court convicted of conspiracy to provide material support to ISIS and then, while on release pending sentencing, obstructing justice by deleting numerous electronic communications she had with other individuals, including ISIS supporters, in order to prevent their detection by the government and the Court. Id.at 194-95. Arguing that the “the defendant – who to this day remains unrepentant for her actions” (and relying heavily upon the testimony of Dr. Vidino) the government sought a sentence within the advisory Guidelines range of 360 to 600 months’ imprisonment.29 Id.at 223.

In relevant part during his substantial testimony at the defendant’ sentence hearing, Dr. Vidino opined at length about an extremist individual’s capacity to leave terrorist groups such as ISIS and associated networks and to reintegrate safely into mainstream society and offered his opinion as to the defendant’s progress toward these goals.30 Like in the case at bar, Dr. Vidino did not interview the defendant but rather relied solely upon a review of her communications with others and recent time on presentence release. In concluding that the defendant exhibited objective indicators of her reengaging with ISIS should she be released from prison Dr. Vidino raised two “red flags” indicating such a danger: 1) maintenance of extremist views; and 2) engagement with people known by her to be ISIS supporters, including the same people he had been involved with during the underlying conspiracy. Id.at 207.

In support of these indicators, Vidino cited her communications while in prison, in particular one not long before sentence in which during a recorded telephone call she denied responsibility for her actions equating her support for ISIS with little more than the practice of her religious beliefs. Id.at 207-208. Several days before her call she sent an email from prison which stated “[i]m your friend I did not do anything wrong as a Muslim but a cyber crime in social media . . . to support certain shari’ah islamiya o al magreb tul horriya.” Emphasizing her frequent documented explanations that she was prosecuted because of her religion, Dr. Vidino explained, was evidence that she retained the “mindset” of an ISIS supporter.31 He concluded by testifying that the consequence of this behavior manifested the potential to reoffend. Id. In rejecting the generic prediction of Dr. Vidino, the Court imposed a sentence of 48 months and not the 360 to 600 month guideline sentence sought by the government. Id.at 223.

Other terrorism cases cited by Dr.Vidino on his CV as an expert witness for the government involved conduct comparable to or more sinister than that attributed to the defendant. Following conviction, by plea or at trial, the respective accused received sentences far less than the one originally imposed upon Mr. Kaziu, and which the government now seeks upon his resentence.

For example, in United States v. Joshua Goldberg, No.3:15-mj-1170 (M.D.Fla.2018)(Davis,J.) the defendant, a 23 year old, was convicted of attempted malicious damage and destruction by an explosive of a building. According to the plea agreement Goldberg, using an online name of “AusWitness,” came to the attention of law enforcement while posting laudatory comments about a deadly attack by two gunmen that had occurred earlier at the Muhammad Art Exhibit and Contest in Garland, Texas. Before the attack, Goldberg posted a map of the location urging anyone within the area to attack the event. That posting was copied and used by the two gunmen in the attack, both of whom were killed in a shoot-out during it. Subsequently in another online posting Goldberg took responsibility for inspiring the Garland attack, as well as two others then in the planning stage.

In the run-up to his arrest, Goldberg held on-going exchanges with an informant (CI) for the FBI. Among other things Goldberg discussed getting an individual in Melbourne, Australia to carry out a terrorist attack and to have the CI carry out a bombing in the United States. Among his overt acts, Goldberg sent the CI five website links containing instructions for making various explosive devices, including pipe bombs. During subsequent discussion with the CI, Goldberg mentioned a plan involving the use of pipe bombs at a large public event and later suggested using a pressure cooker bomb instead as being more destructive. In another discussion with the CI, Goldberg identified as the “perfect place” to bomb, a fire-fighters event in Kansas City, Missouri honoring first responders that lost their lives in the 9-11 attacks. In preparation for that attack Goldberg instructed the CI to place the bomb near the crowd to ensure it was well hidden and to produce maximum damage. The following day Goldberg provided the CI a list of items to use in the pressure cooker bomb, including shards of metal, nails and broken glass. He further instructed him to dip screws and other shrapnel in rat poison to inflict more casualties. Goldberg concluded the planning noting that he would post a video of the bombing.32

Following a mid trial plea,33 Dr. Vidino testified at the Goldberg sentencing hearing on behalf of the Government. With a Guideline range of up to 240 months, Goldberg was ultimately sentenced to 120 months and lifetime supervision.

In United States v. Alebbini, No. 3:17-cr-00071-1 (S.D. Ohio 2017), aff’d 979 F.3d 537 (6th Cir. 2020) the defendant, a 29 year old legal permanent resident, was convicted at trial of material support of terrorism arising from, inter alia, his travel to Turkey en route to Syria to join ISIS Id.at.540-43. Arriving with an expired passport, he was returned to the United States by the Turkish government while his cousin traveled onto Jordan where he was arrested. Id.at 540. Not long thereafter Alebbini was himself arrested at the airport while preparing to board another flight. Id.at 542-43. Just before his arrest hehad a series of exchanges with relatives who pleaded with him not to join ISIS. In three back-to-back text messages Alebbini said:  “Do you think I am a criminal”  “I am a terrorist”  “I am mujahid.” Id.at 542. In an earlier conversation with a friend Alebbini said, “I, cousin, want to go be an inghimasi soldier.” Id.at 549. In a series of earlier monitored exchanges with a CI regarding the plans of he and his cousin he commented: “the truth is crystal clear [we are reaching]”the execution phase” of [our]plan. [O]ur duty is to support the Islamic State. … What’s our duty? Jihad. So, a person must be, I mean, must distance himself from the people of sin until it happens … and if it happens and he is captured; then let them capture him.” Id.at 542.

Evidence at trial established that Alebbini justified ISIS burning a Royal Jordanian Air Force pilot alive as payback for “help[ing] America against us” and asserted “the only one who shows the truth is honestly the Islamic State Organization.” Id.at 541. At other times he discussed how he had watched pro-ISIS videos and recounted when he and Raid (his arrested cousin) were sitting in front of his laptop, watching ISIS videos, and Raid tossed the laptop saying, “Man why are we waiting over here? Let’s act . . . . I want to go.”On another occasion Alebbini opined “the Islamic State is fighting a survival war. They asked people to migrate to the State. When migrants get there they ask them what they learnt, what they studied and they will assign them accordingly to a diwan or a district.” Id.at 549. In yet another instance, Alebbini stated that “[T]he solution . . . is to bear arms.” Id.at 542. When asked by a CI whom he would fight with and against, he replied, “the State Organization” and “any regime that follows the US government.”Id. He aspired to be a “martyrdom bomber,” and that “[t]o fight America” he would offer himself up as “bait.Id. ” He reiterated, “I must fight. I am a soldier!”Id.

According to Dr. Vidino, who testified at length about ISIS in general, an “inghimasi soldier” is a suicide bomber who seeks to cause as much death and destruction as possible prior to detonation. He also described the process of assigning newly arriving volunteers to particular districts to be a fundamental part of ISIS administration. Convicted at a bench trial and facing a Guideline range of up to 480 months, Alebbini was sentenced to 180 months. Id.at 543.

In United States v. Shafi, 2018 U.S. District LEXIS 109484 (N.D.Cal.2018)(Orrock, J.) thedefendant was tried for conspiracy to provide material support for terrorism by attempting to travel and provide himself in service to al-Nusrah, a spin off terrorist organization from Al Qaeda. Among the overt acts attributed to him over a period of several years were leaving his family while on holiday in Egypt to go and “protect Muslims,” on-line research on how to travel from Turkey to Syria, phone discussions in which he was heard to say that “America was the enemy” and that he wanted to live in Syria. In addition, he and two younger brothers participated in “paramilitary style” training near their home. Ultimately Shafi purchased a one way ticket to travel to Turkey intending to continue onto Syria to join al-Nusrah. He was arrested while on his way to the airport.

At trial, Dr. Vidino was once again called as an expert by the government. As has been the case in all his court appearances, he testified not about Mr. Shafi personally (his thoughts, motivation, aspiration and belief) with whom he had no one-on-one experience, but rather about terrorist organizations in general.34 Dr. Vidino testified at length about the background of al-Nushra and ISIS, including their terroristic activities, history, propaganda, recruitment strategies, and other tactics. Though he attempted to match the conduct of Mr. Shafi to that profile, it was not persuasive. Deadlocked reportedly with 8-4 jurors in favor of acquittal, a mistrial was declared. Subsequently Mr. Shafi pleaded guilty; not to any terrorism offense, but to bank fraud related to cashing a bad check to finance his trip and was sentenced to some 48 months with the court noting that the government had failed to prove any terrorist intent. 35

In the year that has passed since the submission of our initial sentence memorandum there have been other terrorism convictions where courts applying the statutory mandate of 18 U.S.C.§ 3553 meted out punishment significantly less severe than the 27 years Mr. Kaziu originally received, but yet for conduct far more egregious than his.

Thus, in a consummated deadly terrorist attack which all at once shocked the world and ignited a domestic political firestorm that contributed to, then, Secretary of State Hillary Clinton losing the presidency, stands the prosecution in United States v. Al-Imam, 373 F. Supp. 3d 247(D.D.C. 2020)(Cooper,J.). Al-Imam, one of the named defendants prosecuted for the Benghazi, Libya attacks in 2012 was initially charged with Conspiracy to Provide Material Support and Resources to Terrorists Resulting in Death; Providing Material Support and Resources to Terrorists Resulting in Death, Killing of an Internationally Protected Person, U.S. Ambassador Stevens; three counts of Killing Officers and Employees of the United States, Embassy Officers Smith, Woods, and Doherty; and Attempting to Kill Officers and Employees of the United States, Embassy Officers Wickland, Ubben, and Geist.36

According to the indictment on the day of the attack some two dozen men armed with assault rifles, handguns, and rocket-propelled grenade launchers—attacked the U. S. Mission setting fire to several buildings, causing the deaths of Ambassador Stevens and Sean Smith. 373 F. Supp 247 (referring to Ind. ¶ 22.). Surviving State Department personnel fled to its Annex, which soon came under attack as well with mortar fire that killedTyrone Woods and Glen Doherty. Id.  It was alleged that Al-Imam was a close associate of Abu Khatallah, the leader of the group that carried out the attacks. Id. ¶ 9. Al-Imam was “present for, helped orchestrate, and participated in the attacks” (id. ¶¶ 9-10) and afterward entered the Mission at the direction of Abu Khatallah and took sensitive material, including material that identified the Annex by location and as the evacuation point for State Department personnel. Id. ¶ 22. Subsequently, it is alleged, “Al-Imam assembled with Abu Khatallah and others to coordinate the attack on the Annex.” Id.

Al-Imam was found guilty at trial of conspiracy to provide material support or resources to terrorists and one count of maliciously destroying and injuring dwellings and property and property and placing live in jeopardy within the territorial jurisdiction of the United States. In a subsequent Department of Justice press release extolling the sentence imposed the government noted “al-Imam played a significant role in the 2012 Benghazi attack , one that ultimately claimed American lives . . . today’s sentencing is a reminder that the safety of Americans-whether at home or abroad- civilian or otherwise will always be our top priority.” 37 Al-Imam was sentenced to 228 months. While Betim Kaziu guilty of little more than aspiration, talk and journey with no ensuing violence and or weapons, let alone death and destruction received a sentence of 324 months.

In United States v. Dais, 482 F. Supp. 3d 800 (E.D. Wis. 2020)(Adelman, J.), the court imposed a sentence upon conviction for attempting to provide material support or resources to a foreign terrorist organization to 90 months and not the within guideline maximum which the government sought as recommended by the pre-sentence report of 240 months to life. In Dais the defendant was “an accomplished hacker and identity thief. She taught others how to hack and posted a video of her hacking technique. In addition to hacked Facebook accounts, defendant maintained private channels on Telegram, an encrypted social media platform, on which she compiled detailed information about explosives, poisons, and other means of committing attacks. She shared links to these channels with followers who wanted information about how to commit attacks.” Id. at 804-05. Long a supporter of ISIS, she used various social media platforms to promote and recruit new members for ISIS and to urge others who could not travel to areas it controlled to conduct domestic attacks on its behalf. One such follower planned an attack in France. Another was arrested after law enforcement disrupted his plan to bomb a house of worship in Pittsburgh. Id. Though the court concluded the defendant engaged in “disturbingly” dangerous conduct including distribution of detailed information through videos “about bomb-making and biological weapons materials, for use by people who want to commit violent acts in the name of ISIS” which, according to FBI experts, demonstrated a “viable method” of preparing explosives, it nevertheless rejected the guideline enhancement of §3A1.4, noting that under the facts it “provided limited guidance in this case.” Id. at 802-803.38

In United States v. Velentzas, 2019 U.S. Dist. LEXIS 12409 (E.D.N.Y. 2019)(Johnson, Jr.,J) the defendants, Noel Velentzas and Asia Siddiqui, were charged, inter alia, with Conspiracy to Use a Weapon of Mass Destruction and Teaching and Distributing Information Pertaining to the Making and Use of an Explosive, Destructive Device and Weapon of Mass Destruction.Id at*1. Eventually they both pleaded guilty to planning to make a bomb for use in an attack inside the United States.

Among the overt acts in furtherance of the conspiracy were a series of discussions between the two and an undercover agent (UC) pertaining to the use of pressure cookers packed with, potentially, other deadly items like those used by Tamerlan and Dzhokhar Tsarnaev’s the “Boston Marathon bombers” to carry out their attack.Velentzas, 2019 U.S. Dist. LEXIS 124093 at*7. They further discussed the science of bombmaking and studied chemistry using library books and The Anarchist Cookbook. Id.at *7-8. Velenztas obtained a prepaid cellular phone which she used to view videos about soldering and circuitry which she began to practice. Id.at*8. Siddiqui and the UC went to Home Depot on occasion to learn more about the items detailed in the course book she was studying while Velentzas continued to research about transformers, homemade grenades, pipe and pressure cooker bombs, copper wires, small and large metal pipes and bags of sodium chloride which they believed were used in the 1993 World Trade Center bombing.Id.at*8-10. Velentzas made her home available to practice making smaller explosive devices and when she and the UC arrived at the home of Siddiqui, they found four propane tanks.Id at*10.

They also talked about how to detonate a bomb from afar, and the means of defending themselves from law enforcement capture through a knife attack and how to avoid law enforcement detection such as avoiding YouTube instructional videos not purchasing large amounts of bleach, removing sim cards to prevent the government from “taping their phones” and staying away from “Muslim places” where the government puts recording devices. Id.at*8-9 Velentzas told the UC “people who read chemistry books over breakfast are people who make history.” Siddiqui shared passages from library books on chemistry that she borrowed.39 Id.at*8

Siddiqui was sentenced to 180 months for her role in planning to build and use a bomb in a domestic terrorist attack, with Velentzas currently awaiting sentence. According to the government “inspired by radical Islam,” Siddiqui and Noelle Velentzas were involved in teaching or distributing information regarding making and using an explosive, destructive device, or weapon of mass destruction to “kill Americans and fellow New Yorkers. Noting “lives were saved when the defendants plot to detonate a bomb in a terrorist attack was thwarted by . . . law enforcement” the government described the fifteen year sentence imposed upon Siddiqui as one which held her “accountable for her crimes.” See https://www.justice.gov/opa/pr/queens-woman-sentenced-15-years-imprisonment-teaching-and-distributing-information-about. 40

D. Neither DOJ nor the BOP has viewed Mr. Kaziu as a continuing threat

As fleshed out in our memorandum in chief, the specter of extremist recidivism and evidence of rehabilitation continue to be keystones to the sentencing calculus.41 Although, to some degree, connected at the hip, on both scores Mr. Kaziu presents nothing rooted in fact to give Your Honor reason to pause. Having begun his incarceration in a high security pre-trial setting, in the years following his conviction he has worked his way down from a medium security facility and now to one at the low end. In fact, but for the face of the charges of which he was convicted he would, by now, likely be incarcerated in a camp. This easing in security designation is not simply rote companion to time spent behind bars, but must be earned. Betim Kaziu has done so.

There is nothing haphazard about the manner and means by which the Bureau of Prisons determines the security placement of an in-coming prisoner, little is left to chance.42 Once designated, the BOP continues to monitor closely the activity of those convicted of extremist offenses with transfers to higher or lower security prisons based upon their activity within an FCI setting. Indeed, within the BOP, security restrictions are “severe” for those convicted of extremist offenses.43 “Well Integrated into the counter-terrorism intelligence-sharing process . . . [the] BOP maintains a standalone counter-terrorism unit and a liaison to the Joint Terrorism Taskforce, allowing it to effectively communicate with law enforcement and intelligence agencies at the federal, state, and local levels.” Id. Among other security steps, the BOP closely monitors all communications of these offenders with family and approved friends outside the prison and with fellow inmates, with their substance shared with law enforcement as appropriate. It also carefully scrutinizes, and can limit, visitors to those convicted of terrorism related offenses. Id.

If deemed necessary by the Department of Justice, a “Special Administrative Measure” (SAM) involving housing and correspondence may be implemented against a given inmate when it is alleged there is a “substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.” Such measures are used to prevent acts of violence or terrorism or disclosure of classified information. See 28 CFR 501.3 and USAM Title 9 chapter 24.44

In this light, consideration of the relevant factors of 18 U.S.C.§ 3553 should lead the Court to conclude that there is nothing before it that indicates Mr. Kaziu presents a cognizable hint, let alone identifiable risk of recidivism or that he has failed to take full advantage of his years in prison to become a better man and member of the community as he has worked day by day in preparation for his eventual reintegration into society.

Thus, despite an exhaustive preliminary evaluation as to whether he posed a continuing extremist threat, and on-going monitoring, at no time has the Department of Justice found a basis to impose a SAM against Mr. Kaziu. Nor has the BOP found that the defendant has engaged in activity which can be or was construed as extremist in nature. His communications in prison with fellow inmates and officers have been unremarkable and mirror exchanges with family and friends outside, containing not a hint of extremist anger or pro-extremist sentiment.45 Throughout the defendant’s movement from a medium to a low-level security setting, there have been no instances where any of his communications have been interdicted as a security risk, where he has been denied a visit from anyone on those grounds or where he was singled out for any restrictions whatsoever based upon his conviction or his conduct in prison.46

Upon conviction Mr. Kaziu was not designated to a maximum or high level security prison. Nor at anytime over these past 12 years has he been transferred to a CMU as a threat to prison security and staff, to other prisoners or to the community-at-large, beyond its walls. To the contrary, as indicated in our initial sentence memorandum, the defendant has used his time in relatively, low- security confinement not just to reflect over long and hard hours about his crime, but to obtain his GED, to graduate from numerous self-improvement and academic courses, to practice his faith with calm reflection, to counsel other inmates in crises, to work hard at his various prison jobs and to visit periodically with family and friends without incident. 47

Conclusion

When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded. If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment.” Procunier v. Martinez, 416 U.S. 396, 411(1974).

Almost half a century ago Thurgood Marshall penned these sage, timeless words. They speak to hope, redemption, and tomorrow even for those whose experiential growth is forcibly circumscribed by the slam of prison bars and the repeated daily call of “count time . . . count time” for years to come. Prison can be a cold, brutal isolation of the body, unfortunately it’s meant to be. But for those who yearn to grow . . . even when entombed, the mind knows no such bounds. As a teen, Betim Kaziu, a bullied school drop-out, found meaningless escape from the drone of his isolated life through a faith he neither understood nor observed. With few friends and even less emotional support, he wandered in search of purpose; instead he found futility and, ultimately, indoctrinated collapse. As Betim boarded that flight for Egypt years ago, it was for him an exhilarating flight from a tedious marginal job and a dark Bronx tenement. Driven, he imagined, by some noble call to defend his faith a world away even, if necessary, by violence, Kaziu was lost, chasing a surreal journey, like the kind many his age found in a front-row seat at the local cinema. Turning back the clock is impossible for us all. For a still relatively young man in prison for extremist views and voice, a constant, forever daunting challenge to prove he has rejoined the world of peaceful, acceptable purpose.

Do we as a society in the quest for justice assume that twenty-seven years in prison as opposed to fifteen is the guarantor of that desired end? Or is hope and rehabilitation just a tease, with that mechanical twelve-year difference really all about retribution and little else? That is what the government proposes, and that is the question which will soon face this Court.

Betim Kaziu will in short order stand before Your Honor for a de novo resentence; not the boy he was when swept up into a stream of ignorant rhetoric and propaganda but a man who has spent a dozen plus years regretting every word, every step, every moment of his rash, juvenile leap into a world, for him, of little more than geopolitical intrigue and drama. Make no mistake about it; we do not suggest that his conduct, even expressed aspiration, was not serious or criminal . . . surely it was. But, yet, as time has told, sentencing for non-violent material support charges, particularly those of aspiration alone, with no consequence or meaningful steps towards it, has surely begun to back away from what was, in the shadow of 9-11, a punishment of cast away the key and a life along with it.

Although for the reasons set forth we take exception to the submission of the government’s expert. Several years ago he penned an observation with which we agree whole heartedly: “It is unobjectionable that individuals who have paid their debt to society, no matter what their crimes, should be granted their freedom.” 48

Betim Kaziu has paid his debt to society and deserves a second chance at a new life beyond the walls of a federal prison. He has a family, employment and a stable home-life awaiting him. It will not be easy as the tattoo of extremist is one that fades only with the passage of considerable time, effort and success. The world Mr. Kaziu will eventually reenter will in technology, tenor and tone be a very different place from the one he last knew years ago, with challenges that will test him daily. Though his parents are no longer young they can and will provide the kind of love and support needed to assist him with that reentry. His siblings are now parents themselves or well on the way to becoming one. Yet, to them, he will always be the beloved big brother who they have missed dearly and for whom they have prayed daily for his release. They too are prepared to walk with him through the confusion, at times turmoil that predictably awaits any prisoner who has lost their freedom for a dozen or more years no matter what his or her crime. Times for Mr. Kaziu will be tough to be sure. But all the objective criteria before this Court should lead it to conclude that it is not a trial beyond his commitment or capacity to safely, responsibly and lawfully navigate.

For all the reasons hereinabove set forth and on the basis of his original re-sentence memorandum and its attachments, it is respectfully submitted and requested that a sentence no greater than fifteen years, accompanied by a substantial period of strict but supportive supervised release, would be a reasonable and appropriate resolution in the matter of Betim Kaziu.49

. Respectfully submitted,

Stanley L. Cohen, Esq.

Co-counsel

Geoffrey Stewart, Esq.

Co-counsel

Cosmo Pappas, JD Candidate 22

Executive Editor,

Michigan Journal of Race and Law

Michigan Law School

cc: Clerk of the Court (FB) (by ECF)

Counsel of record (by ECF and E-Mail)

SLC/brl

[

Supplement to initial declaration UNITED STATES OF AMERICA v. BETIM KAZIU April 5, 2021

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

——————————————————X

UNITED STATES OF AMERICA

v.

BETIM KAZIU

Defendant.

—————————————————–X

DECLARATION

I, Yasir Qadhi, under penalty of perjury pursuant to 28 U.S.C. §1746, hereby declare as follows:

  1. This declaration serves as a supplement to my initial declaration which was submitted to the Court on or about March 18, 2020 and is submitted in reply to the declaration of Dr. Lorenzo Vidino.1
  2. I have reviewed the credentials and declaration of Dr. Lorenzo. Though he presents the Court an impressive academic and scholarly body of work indeed, from a practical, relevant, and cognitive standpoint, it falls well short of that necessary to weigh in on what the future may or may not hold for Betim Kaziu.
  3. Thus, what is markedly absent from Dr. Vidino’s CV is any consequential experience with significant numbers of young men and women and their families of the Islamic faith and tradition. This holds particularly true for those in the throes of personal crises because of events world-wide that have swept tens of millions of Muslims into the eyes of a terrible storm of victimization, displacement, refugees in flight and, for some, mindless un-Islamic extremism.
  4. Likewise, Dr. Vidino’s failure to speak, let alone understand, Arabic, Farsi, Urdu and other languages of the region leaves him at a marked disadvantage, dependent solely on the interpretation of others (and not his own working understanding) as to the recorded underpinnings of Islam, with its nuanced interpretation, application and meaning. This shortcoming is exacerbated by his palpable lack of any significant experience in the MENA region where he has spent little if any time on the ground and is certainly detached from its diverse culture and communities.
  5. So, too, not a credentialed therapist, psychologist or Islamic trained scholar or counselor, Dr. Vidino is simply not positioned to render any opinion of objective, meaningful consequence with regard to any young Muslim man or women experiencing confusion or crises in their life or whether that chaos leaves them either vulnerable to extremist propaganda and lure or, with time and growth, is beyond its reach.
  6. Most important, Dr. Vidino has not spent any time, ever, with Betim Kaziu. He knows not at all what he thinks or feels now about his faith and conduct of long ago; what he did or why at the time when he was arrested when barely out of his teens; or, in reflection, his evolving thoughts about it over the many years since. Surely, a simple, informed exchange between an expert on so-called “risk assessment” and the subject at hand compels a face to face meeting between the two, with unrestrained questions and answers, time to listen, observe, probe, and follow-up.2 Yet that essential exchange is markedly absent here where Dr. Vidino’s conclusion (or non-conclusion) is built entirely from a body of abstract and stereotypical group dynamic and little else.
  7. What is most interesting about the Vidino declaration is not that it takes issue with my ultimate conclusion, namely that Mr. Kaziu presents a mature, evolved and calm individual who sees the folly of his misinformed beliefs and conduct of years ago and presents no current telltale sign of relapse or danger to society, but that it challenges aspects of my declaration based on little more than abstract, quasi-empirical grounds or mere supposition.
  8. Thus, it was not my intention to convey to the Court that each and every Muslim victimized by the trap of extremism is entirely unschooled or trained in the scholarship of Islam. There are, of course, documented examples of young men and women steeped in Islamic learning who nonetheless go off on an ignorant tangent in search of “jihad” as so much a misplaced obligatory tenet of faith. These are fools. Those who may, from memory, recite complete passages from the Quran and related texts verbatim, but yet miss or misconstrue their meaning, and the application of their message.
  9. Nevertheless based upon decades of work directly with young Muslims entertaining a moment of crises about who and what they are, the call of Islam and what is required of them, the vast majority of those contemplating going off on jihad, or who have, are lost; unschooled, untrained and entirely unfamiliar with what is intended for and required of a righteous Muslim. Like so many others hypnotized by the rhetoric and “excitement” of the moment, Betim Kaziu went off, not knowing what he was doing, where he was going and, ultimately, why.
  10. Likewise, my reference to Egypt traditionally being a center for the study of Islam and the Arabic language and not a typical stop-over or meeting place for Muslims bent on joining extremist groups with whom they have no connection, was not intended to convey to the Court that no such ill-informed and dangerous strategy or result ever occurs. Of course Egypt, like elsewhere in MENA,3 has at times been a bridge for foreign extremists to meet in a pre-arranged journey to continue on to join designated terrorist groups elsewhere. Yet based upon my experience and knowledge gleaned from decades of work that is and has long been the exception. In sum, for every young person who travels to Egypt as part of a pre-arranged “jihadi” strategy to connect with others of a like mind and purpose, far more do so in pursuit of religious growth or arrive in Cairo lost, looking for an extremist purpose or road about which they have no idea and which invariably leads to a hasty ill-informed move elsewhere. Betim Kaziu was one such hapless drifter.
  11. Finally, I dispatch with little necessary comment, Dr. Vidino’s final criticism of my evaluation, namely his suggestion, no claim, that I was manipulated by Mr. Kaziu’s answer to me about his current view on jihad. Under Dr. Vidino’s gratuitous theory, Mr. Kaziu told me what he knew, in advance, I wished to hear and not what he really felt in order to curry a favorable assessment. Obviously, like all experts in a given discipline, I have at times been mistaken as to my conclusion on a given point. Yet, I would never be so brazen or irresponsible as to comment on the demeanor of one who I was not present to observe, or the credibility of participant in a particular exchange which I was neither party to or witness of. If Mr. Kaziu, locked in a jail cell for many years, was as intelligent as to presciently foreshadow my difficult questions, and then as talented as to act out an almost Emmy-award-worthy scene of genuine contemplation, then Mr. Kaziu is infinitely more talented than anyone has yet discovered. Yet, that is precisely what Dr. Vidino does with his anxious rewrite of a conversation that he has no firsthand knowledge of, involving parties with whom he has never spoken.
  12. I prepared myself for my face-to-face meeting with Mr. Kaziu through several discussions with his counsel and by review of various relevant materials related to his arrest and prosecution. Our discussion, which lasted several hours, was wide reaching and covered a full range of topics including what he did years ago and why, his life behind bars, his knowledge, understanding and practice of Islam today, and his aspirations and hope for the future. I found Mr. Kaziu to be earnest and honest in his answers throughout our conversation. He struck me as peaceful, repentant and truly ashamed of what he had done, acknowledging that he had caused great harm not just to himself and to his family but to the broader Muslim community. I left our meeting convinced that Mr. Kaziu has rejected in its entirety the false beliefs and outlook that long ago had driven him down a dangerous and potentially destructive path. What struck me the most was his intense guilt as a son for having let his parents down, and his earnest desire to make up to all of the psychological and financial harms his family had incurred for him. That guilt was conveyed without my prompting and was a salient feature for me. And though he will need the support of family, friends and community upon his ultimate release from prison to assist in his reintegration into society, I firmly believe he will do so and poses no threat to it during that process.
  13. In conclusion, while faith can be a great balm for all in what is surely a difficult, at times, overwhelming journey of uncertainty, temptation and pain, it can when in the wrong hands exacerbate and exploit that anguish. Nowhere is that more certain than among our young who can be particularly vulnerable to the enticement of rhetoric and propaganda and charismatic speech. That corruption knows no particular faith and can, unfortunately, spread with ease among each of the world’s great age-old religions. If reports are true, recently hundreds of young Christians engaged in acts of domestic terrorism by participating in a deadly attack on the Capital, the citadel of our democracy. Like their Muslim counterparts, it is obvious they were drawn into this extremism not of their own informed volition, but through an orchestrated effort of others armed with the effective charismatic appeal of distortion, lies and anger. Twelve year ago a young Betim Kaziu was a Muslim victim of an earlier time, an earlier rage, an earlier mislead and for it has paid dearly. I believe he is ready to become a peaceful, productive member of our community, a diverse community of many faiths and many dreams.

Pursuant to 28 U.S.C. §1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed at Plano, TX, on 5th day of April, 2021

________________________

[1] Dr. Yasir Qadhi Inexplicably, although I executed the signature page on my original declaration it apparently did not accompany my submission to the Court, which remains unsigned and unexecuted. I herewith swear under penalty of perjury that the original declaration, with the narrative and opinions contained therein reflect my observations, thoughts and conclusions.[

2] Unlike me, it appears that Dr. Vidino did not review any material, records or submissions related to the facts and circumstances of this matter before submitting his opinion.

[3] Referring to the Middle East-North Africa region.

Stealing Native Children: the Revolting Legacy of Canada’s Residential School System

{Originally published in Counterpunch December 25, 2020}

The Sum of Memories by Joni Sarah White.

Tsi Wá:ton tsi Enskarihwahserón:ni – Tsi Niká:ien Rati’terón:tahkwe neRonnonkwehón:we Tsi Ionteweiénsta Ronwati’terontáhkhwa

“… [I]f anything is to be done with the Indian, we must catch him very young. The children must be kept constantly within the circle of civilized conditions.” -Nicholas Flood Davin, Report on Industrial schools for Indians and Half-Breeds, 1879.

Of late, there’s been a rebirth of interest about the notorious residential “school” system contrived and operated largely in Canada. Because it’s been my honor, for more than thirty years, to represent indigenous women, men and movements throughout North America on matters of self determination and international law, recently, I was asked by some friends abroad to write an article detailing the residential school system. Although much has been written about it, the narrative is usually a detached academic monologue that fails to put a real face on its true horror.

By now, many are aware of the government sanctioned history of stealing native children, isolating them far from family and communities in cold Christian edifices where the braids of young boys were shorn away to pilfer visual identity; where screams were ritual with victims beaten for the dare to speak their native tongue; where sex abuse was endemic among the dark, seedy hallways of a foreign faith; where thousands died from staggering neglect including starvation and unchecked disease such as tuberculosis and typhoid.

Yet, a practice strewn throughout Canada and parts of the United States was so much more insidious than physical assaults and shaved heads alone. For a calculated sanctioned scheme to erase entire cultures . . . a wretched effort to recast the millennium to suit the colonial needs of the moment . . . cannot be reduced to mere inadvertence or uncertainty. Indeed, if ever cultural genocide had consequential meaning and application it was in the residential school system with its deliberate effort to eradicate all aspects of Aboriginal culture and to sever and thwart its passage from one generation to the next. With ordained regularity, all captive students were belittled, humiliated and scorned no matter how hard their effort to accommodate their personal suffer and sacrifice or how well they acceded to the demands of their proselytizing wardens. As much forced labor camps as classrooms, in Canada, indigenous children were mandated by law to attend these hovels in which administrators became their legal guardians through a perverse partnership between the government and major churches as they conspired to wash away the identity and independence of the age-old Rohsken’ra:kete . . . gatekeepers of the land.

Meanwhile, never one to be out-purged by the “nuanced” cultural cleanse of hundreds of thousands of indigenous youth to its north, the United States expanded its age-old use of “trails of tears” to build schools of sobs. What began with the Indian Removal Act of 1830 which legislated the military’s forcible removal of a hundred thousand natives from east of the Mississippi River to the West leaving thousands dead along the way of disease, hunger and cold moved to the Compulsorily Attendance Law of 1891. Largely a difference without distinction both lawful strategies were the philosophical bastard of a conscious effort to eradicate by assimilate. To compel attendance, this law authorized the Commissioner of Indian Affairs to withhold food, clothing and annuities from those that refused to surrender their young to these early day (original) internment camps. Like their Canadian counterpart, once there in order to “civilize and Christianize” a generation of indigenous children, students were forced to abandon their Native-American identities through a crafted, imposed Euro-American culture in which their hair was cut, all indigenous languages banned and traditional names replaced by European ones. Like their Canadian counterpart, these schools were notorious for their cruelty leaving most subject to sexual, manual, physical and mental abuse. Many died. Others, broken beyond repair or return to their communities, spent the rest of their lives in misery, de facto exiles, far from their homes and culture.

In summing up long standing US aspiration . . . be it by relocationand march . . . or removal and boarding . . . President Theodore Roosevelt infamously announced “ I don’t go so far as to think that the only good Indians are the dead Indians, but I believe nine out of every ten are. And I shouldn’t like to inquire too closely into the case of the tenth.”

Rather than present an abstract, academic review of its calculated purge of the history, culture and future of North America’s indigenous people, with the permission of a client, I’ve elected to put a personal face on the Canadian residential school system. Submitted as part of a mitigation argument in a U.S. federal criminal case, which can vest the court with enormous sentencing discretion, this narrative and other aspects of our client’s life moved the probation department (which recommends a sentence) and the Government to agree with the one proposed by the defense. Fortunately, the court concurred that under the totality of circumstances incarceration was not called for.

Whisper into the Sky by Joni Sarah White.

What follows is a verbatim*, albeit reduced, and hopefully informative glimpse into the horrific residential school system through the format typically used in federal pre-sentence memoranda. And with this introduction, welcome to the childhood world of Clifford Smoke of Akwesasne, the Mohawk Territory which straddles the borders of the United States and Canada as part of a sovereign Nation that sits between the two. Under Longhouse tradition, Akwesasne, like all original pre-treaty land, has direct roots to Turtle Island… the centre of creation that began when the Creator seeded the indigenous journey… that survives despite the trials and trepidations imposed upon it by a European colonial project of an earlier time; one that continues to date.

The seeds for Clifford Smoke’s PTSD began as a young child when he was subjected to the trauma of the notorious Canadian residential school system which inflicted untold damage on countless Native children in Canada, be they those isolated from their community and families through removal to live-in schools far away, or local ones where they attended classes but returned home each night. Clifford Smoke was one of those traumatized young kids. Subjected to physical and emotional abuse from his teachers and some peers, called “retarded” and humiliated daily, by grade three Cliff had withdrawn emotionally from his class… unable to spell or write his name. As noted in the Pre Sentence Report prepared for Your Honor:

[Smoke’s] early education occurred at a “residential” school. He was among the last of Native children who were forced to attend such schools. Residential schools were operated by the Canadian government and were used largely to remove Indigenous youth from the influence of their culture and assimilate them to the dominate Canadian culture. Residential schools were notorious for a high prevalence of student abuse and neglect and ultimately closed due to such conduct. [Smoke] recalled experiencing significant emotional and verbal abuse from school staff.” See, PSR at p.22¶115i

In the second half of the 1980s, Clifford Smoke was among the last generation of Native children forced into the government schools for aboriginal peoples in Canada. These schools were closed a decade later, as a result of Native and government revulsion over their conduct.ii The experience for Mr. Smoke at the TSI SnaihneSchool in Quebec, from age five to age nine, managed to combine academic failure, physical abuse and humiliating emotional trauma in equal measure. As his mother Sharon notes “[Clifford] was beaten up by other students and hit by teachers for being backwards.” The elder Mrs. Smoke notesiii her belief that his life-long struggles stemmed from this early experience, and that later schools tracked him as “special needs,” when he could not read or write on level with his age cohort. This, she believes, is what caused him to start skipping classes and eventually led to Clifford’s quitting school as soon as he could.

While indigenous people in North America suffered centuries of violence at the hands of their European foes, the full dimensions of which will never be understood by non-natives, “the closing of the frontier” in the 1880siv did not bring an end to warfare visited upon native communities. A new cultural and social warfare took its place, as government institutions in the U.S. and Canada sought to “normalize” and assimilate the surviving Indian populations into the structures of conquest. Dispossessed of lands and livelihoods, natives were regarded as a recalcitrant population to be “led,” beneficently, into the new century by way of institutionalization, often justified in “well-meaning,” lofty rhetoric, but bluntly supremacist in its intent. The “white man’s burden”v in Canada would process some 150,000 indigenous children through its national system of native schools, with lasting communal trauma spread across generations.

Founded in 1831,vi revamped after 1885, and ultimately disbanded in 1996,viiCanada’s native school system employed custodial, locked-down schools typically in remote places where First Nations children were forcibly brought, often having been abducted by missionaries or pastors, and separated forever from their parents and even siblings, raised far from homeland or reservation, in brutal institutional settings which had been designed to “civilize” the young men and women. At their best, the schools offered a half-day of standard pedagogy—teaching English and basic math, and a half-day of vocational training—with the express purpose of making young natives into proper “self-sufficient” Canadians, and so that government social dependency welfare programs might one day no longer be needed.

These schools and their leadership explicitly undertook to extinguish in their young, innocent charges, the cultural bases of their identity, through deliberate acts of erasure of their culture and ethnicity.viii Children were beaten for infractions; it is now estimated that over 6,000 indigenous children died in the schools in the period from 1900 to their closing, including those who tried to run away. Yet the forced removal from family and kin proved the worst of all the traumas inflicted—separated from their parents, grandparents, uncles, aunts and tribal elders, the youngsters of the residential schools lost contact with their own bloodlines, or became estranged, returning many years later as adults to discover they could no longer even speak to their own parents, who wore different clothing, and worshiped different gods.

Clifford Smoke had a similar experience in his early childhood, when he found he could not hold conversations with his great-grandparents and other elders, who spoke little English in their later years. He recalls that the linguistic gulf separating them, standing face-to-face, was only bridged by his self-immersion in the Longhouse religion of the Mohawks, in its period of great revival during the early 1990s ferment of Akwesasne political life.

The Canadian residential school system is now widely understoodix to be a component of the long, tragic genocidex wrought upon indigenous peoples everywhere in North America, targeting their language, culture, religion and kinship structures in a deliberate attempt to erase those unique communal bonds. Clifford Smoke experienced the final years of that systemic oppression during his grammar school years in Snye, and although he counts himself fortunate to have returned to the fold of his community, learned his native language, and kept his identity—he survived with scars that continue to haunt him through this day.

As noted in the forensic examination and therapeutic findings of Drs. Johnson and James, Mr. Smoke’s experience with the Canadian residential school system was to be but the first in a series of adverse life informing experiences that have left him suffering for years from chronic PTSD and significant bouts of depression. As found by Dr. Johnson, Mr. Smoke:

“[s]uffers from clinically significant anxiety, post traumatic symptoms and depression incident to a series of extreme traumas beginning in childhood and extending into his adult life. These traumas have included his experiences of abuse, bullying, and humiliation as a learning disabled student in a racist and highly punitive school environment.” See, Exhibit B at p.7.

In noting that “Mr. [Smoke] has lived with chronic post traumatic symptoms, periods of severe depression, guilt, shame, and anguish and continues to experience very significant psychological symptoms and deficits . . . [exhibiting] chronic Post Traumatic Stress Disorder as well as clinically significant symptoms of generalized anxiety and depression” Dr. Johnson concludes his report stating his “strong recommendation that he remain in treatment with Dr. James.” Id.

Clifford Smoke is but one of more than a hundred and fifty thousand indigenous women and men who suffered the deliberate, targeted pain and punishment that was the residential school system. It was by no means aberrant . . . isolated . . . hidden. What began hundreds of years ago with a military and settler assault upon native communities throughout North America soon evolved to the Canadian Indian Act and the U.S. Bureau of Indian Affairs; both ceded control over indigenous people to government agents empowered to forcibly assimilate them into the dominant white culture. The linchpin of these efforts was an insidious, euro/ethnic theological molest of indigenous youth stripped from their communities and culture in a conscious effort to tear away at the guideposts of their unique journey and voice. As noted in the Truth and Reconciliation Commission Canada, Honouring the Truth, Reconciling the Future: Summary of the Final Report of the Truth and reconciliation Commission of Canada, p.3…

The Canadian government pursued this policy of cultural genocide because it wished to divest itself of its legal and financial obligations to Aboriginal people and gain control over their land and resources. If every Aboriginal person had been absorbed into the body politic, there would be no reserves, no Treaties, and no Aboriginal rights.”

Though the doors to residential schools have been shuttered and shamed, their malicious endeavour has not. Today, it persists through the disappearance, rape and murder of thousands of indigenous women and girls and a corrupt system of mass incarceration that selectively imprisons native men in numbers disproportionate to all others often for little more than their political and religious beliefs or community efforts at economic self-determination. No less vile or colonial in its reach stands the brazen corporate loot of indigenous natural resources throughout North America. Once again, what is “theirs” has become ours, as the economic lure of minerals and raw material further relegates fundamental indigenous rights to little more than a series of cheap and readily transparent government talisman.

While the standoffs at Wounded Knee in the 1970’s, Kanesatake in 1990 and more recently at Standing Rock and Wet’suwet’en were explosive and drew international attention and solidarity with indigenous people, the long-standing pernicious residential school system operated from beyond the shadows, with no concern of consequence to non-natives, for more than a century. The marked, ever-present assault on indigenous rights, aspirations and sovereignty continues unabated, lost to the public at large until a periodic face-off explodes into violence leaving distant spectators stretching for meaning. Like “badges and incidents of slavery,” to non-natives the ugly supremacist define of Aboriginals is, for most, a perpetual stare . . . one veiled from behind the romanticized, exploited myth of “our” indigenous people.

Here a sixty page legal brief moved the court from the 50 plus months of prison Clifford Smoke faced to a sentence of probation. But 600 years of land theft, occupation and terror cannot, and will not, be undone by words or liberal illusion alone. That mirage left long ago.

*The identity of the various participants in this prosecution, including the defendant, has been changed in order to protect their privacy.

i

See , also, Exhibit B, Report of Dr. Johnson at p. 2 ¶ 2 which, in relevant part, notes “[Smoke] relates that his teachers were insensitive, belittled him and called him “retarded,” and he was made fun of and bullied by the other children. He relates that he was traumatized by this experience and as a result learned to hate school. He reports that he was mistreated as a Native American and that his culture and language were completely dismissed and ignored.”

ii

As noted supra Cliff is a member of a class-action settlement of a suit brought by surviving students and/or their families against Canada for various damages suffered at residential schools. See, generally,https://www.nytimes.com/2017/10/06/world/canada/indigenous-forced-adoption-sixties-scoop.html;https://www.theglobeandmail.com/canada/article-court-approves-class-action-lawsuit-for-indigenous-students-stripped/

iii

Comments attributed to Mr. Smoke’s mother about his experiences in school and later life are based upon a series of interviews with her.

iv

As described by Frederick Jackson Turner in his seminal (and long-controversial) 1893 essay, “The Significance of the Frontier in American History,” the US census ceased demarcating a geographic line between settled and “un-settled” areas of the west after 1890; the Canadian west may have arrived at that moment even sooner, with the completion of its own transcontinental railway in 1884.

v

The phrase comes to us from Rudyard Kipling’s unabashedly imperialist, white-supremacist 1899 poem—urging civilization upon America’s “new-caught, sullen peoples/half-devil and half-child.”

vi

The earliest schools in the 1830s were formed by French Catholic missionaries for eastern indigenous children, and were mostly at the time voluntary, as the early settlers relied on Iroquois and Six Nations bands for survival, and could not until later force compulsory education on tribes that traded, supplied and went to war with them.

vii

The last school closed in Saskatchewan that year.

viii

The schools forced Christian religion upon the children, and forbade under threat of punishment any native religious practice; native languages were forbidden, under pain of beatings. Each child received a Christian name, with his or her Indian name discarded forever; boys had their hair-braids forcibly cut off, and were made to wear western dress, while native clothing and cultural symbols became outlawed; the schools served a diet of food that in some cases indigenous children could not eat.

ix

See, http://caid.ca/DTRC.html Findings of the Truth and Reconciliation Commission, 2007.

x

Raphael Lemkin, a research member of the American prosecution team at Nuremberg, coined the term “genocide” and proposed it as a working concept to be applied after Nuremberg to foresee other genocides committed on a gradual footing, perhaps employing institutional means slowly, across time: “By ‘genocide’ we mean the destruction of a nation or of an ethnic group. . . . Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.”

Hey Joe: A Memo To Joe Biden

{Originally published in Counterpunch November 13, 2020}

Stanley L. Cohen

Hey Joe…

Thou are not conquered yet, dear land,
Thy spirit still is free.
Though long the Saxon’s ruthless hand,
Has triumphed over thee.
Though oft obscured by clouds of woe,
The sun has never set,
Twill blaze again in golden glow,
Thou art not conquered yet […]

Through ages long of war and strife,
Of rapine and of woe,
We fought the bitter fight of life,
Against the Saxon foe,
Our fairst hopes to break thy chains,
Have died in vain regret,
But still the glorious truth remains,
Though art not conquered yet.

Thou art not conquered yet, dear land,
Thy sons must not forget,
The day will be when all can see,
Thou art not conquered yet

<p class="has-drop-cap" value="<amp-fit-text layout="fixed-height" min-font-size="6" max-font-size="72" height="80">Michael O’Rahilly penned these words. Known simply as “The O’Rahilly” he was a republican and founding member of the Irish Volunteers. With some 64 other rebels, he gladly offered up his life to Irish freedom in the Easter Sunday uprising of 1916. Joe Biden would never know that.Michael O’Rahilly penned these words. Known simply as “The O’Rahilly” he was a republican and founding member of the Irish Volunteers. With some 64 other rebels, he gladly offered up his life to Irish freedom in the Easter Sunday uprising of 1916. Joe Biden would never know that.

Joe Biden takes pride in his Irish roots, as well he should. He finds comfortable repose in the romantic words of Irish tradition. He speaks of Irish bonds… words of warmth and love and hope. Irish is all that … but it is so much more. It is a journey of 800 years of occupation, of resistance at its finest, resistance at its purest, resistance at its deadliest. It is a chronicle Joe Biden has never lived nor learned.

Education is, for some, a privilege, for others a right, for more than a few a selective tailored read. Joe Biden is one such browser; a head-note sort of guy. Like his ignore of the necessarily militant, fierce chronicle of the Irish journey, Joe Biden prefers the packaged, heavily redacted narrative of another occupied people… Palestinians.

To Joe Biden, Palestinians are essentially little more than gate-keepers; visitors tasked by some biblical assign to safeguard the land awaiting the rightful return of relics from an Old Testament psalm long rewritten to serve the geopolitical needs of a Euro/Western colonial project. Of course, when it comes to Palestinians, like so many other political theists across the aisle, Joe Biden typically says all the right things: “except for Hamas terrorists, Palestinians are decent people… good people… honest people who must be treated with dignity and respect.” As for Israeli Jews, Biden’s cerebral tattoo is an echo of the crude international talisman that they are “entitled to live in peace and security.” How profound and deflective. And on those all too familiar occasions when the perpetual victim becomes the ever-lurking victimizer… by burning to death a Palestinian family, or running over a Palestinian toddler, or attacking farmers, damaging chicken coops and killing over 300 chickens or through “settler’ pogroms that ravage entire Palestinian communities… Joe Biden is among the first to denounce the deadly targeted assaults with the all too convenient preach “there are very fine people on both sides.”

It’s not difficult to discern Joe Biden’s myopic cheer for Israel over the course of almost half a century of his legislative applause. Anything but nuanced, or disguised, time and time again he voted aye for all pro-Israeli resolutions and nay for any that might begin to temper the systemic corrupt imbalance between the occupier and the occupied. To Biden and his generation of legislative pander, votes which might suggest, let alone facilitate, any modicum of equity or justice between Palestine and Israel were viewed as political surrender… if not suicide.

Yet, in the United States, political drive of legislative prerogative is far less indicative of one’s theological thirst than what they pursue when they wield the executive gavel of largely unfettered, unitary power. Here, eight years as vice president speaks volumes of Joe Biden’s heretofore zeal to protect Israel at all cost and to deny Palestine any safeguard of consequence whatsoever.

In the often uncomfortable world of reality, executive political power must be measured not by the echo of appealing words but, rather, the pound of deeds. Who better to measure the reach of Joe Biden when he reigned as the second most powerful man in the United States than Barack Obama. According to Obama, for eight years Biden was the last to leave the room of tough decisions and among the most active in shaping what they were to be and just where they were to go. And what were those decisions regarding Palestine?

With, by then, settled norm, Obama/Biden refused to accept the Israeli drive to annex land seized from the West Bank of Palestine. Likewise, the Zionist remake of al Quds into the recognized capital of a European implant went no further than their long standing holiday wish list… as did the transplant of the US Embassy to there from Tel Aviv. There was nothing remarkable about this political “intransigence,” nor did it slow the rapacious Zionist appetite to steal more and more occupied land in rank violation of settled international law. Indeed, in the half century since the on-set of Israel’s second wave of land snatch begun in 1967, American presidents have followed a fairly rote policy of “freeze” and wait while Israel, imbued with blanket U.S. legislative cover and a limitless checkbook, found little reason to pause in increasing its “settler’’ population in the occupied territories from the 10,000 of 1967 to more than 600,000 by 2016.

What, then, deciphers the political rhetoric of Obama/Biden to display the true nature of their largely unbounded support of a European colonial project committed to the eradication of an age-old indigenous population… whether by siege, violence, or categorical expulsion? During the eight years of Obama/Biden, that translate was not at all hard to find. There was, after-all, nothing subtle about Israel’s drive to punish Palestinians, for little more than their mere existence, during the time that Joe Biden readied himself to move from front row seat to oval office desk. Just several weeks before taking power in 2008, the future President got a primer on Israeli brutality through the lens of “Operation Cast Lead.”

With an opening salvo of war crimes on December 27, 2008, the first day of the operation, Israel bombed the main police headquarters in Gaza City, killing 42 police cadets standing in formation without weapons. Later that day, it bombed some 18 other police stations throughout the Gaza Strip. In total, 248 police officers were killed that day having not fired a single round at Israeli forces. Over the twenty one days of the Israeli onslaught that followed, it deliberately targeted civilians and civilian infrastructure and made widespread use of prohibited weapons, such a white phosphorous, in highly populated areas in clear violation of international law. During the attack Israeli fire targeted 23 U.N. buildings and/or compounds killing numerous civilians who had taken shelter there. In the most deadly case, 43 Palestinian civilians were killed by an Israeli shelling in one such compound.

Palestinian schools were also targeted. On January 5, an aerial strike killed three men who had sought shelter at the Asma Elementary Co-Ed A School. On January 17, a military ordinance struck the Beit Lahia Elementary School while the school was being used as an emergency shelter… killing two young boys and injuring 13 persons. Human Rights Watch documented at least seven instances where Israeli soldiers shot and killed civilians… including five women and four children who were in groups waving white flags to convey their civilian status. In one such incident, Israeli soldiers shot and killed several members of the al-Najar family in Khuza’a village, east of Khan Yunis. Following orders from soldiers to leave their neighborhood, and while waving white flags, Rawiya al-Najjar and her family were gunned down.

When the carnage ended, some 1440 Palestinians were killed and more than 5,000 injured… most of them civilians. According to the Israeli Human Right s group B’Tselem, 252 minors under age 16 (boys and girls) who did not take part in any fighting were killed along with 111 women and girls over 16. Nine Israeli soldiers were killed and 340 wounded.

Five years later, in the summer of 2014, Joe Biden got another stark, deadly reminder of just what it is to be a Palestinian in the cross hairs of a colonial fiend hell bent on relegating them en masse to the history of the disappeared. During Israel’s unhinged six week rampage on Gaza it dropped 40,000 tons of explosives on more than 5200 “targets”. At its end, some 2200 were slaughtered, including 550 children, and some 10,000 injured. Almost all the victims were civilians. More than 1900 children were orphaned, hundreds of thousands of civilians internally displaced with 20,000 homes, 26 NGO service providers, a half-dozen UNRWA facilities, 23 hospitals and health-care facilities, 133 schools, 360 factories, 50,000 acres of crop lands and half of Gaza’s poultry stock targeted and destroyed or damaged by Israel.

In the years since “Operation Protective Edge”, as so much a brazen dare to the rest of the world, Israel’s assault upon Palestinians has been as public as it has been relentless and diverse. In its 21 month-long attacks on tens of thousands of Palestinians during the Great March of Return, it met peaceful demonstrators in Gaza with tear gas canisters, some of them dropped from drones, or rubber bullets and live ammunition, mostly fired by positioned, hilltop snipers. The Israeli carnage resulted in the murder of 217 civilian protestors, including 48 children, 2 women and 9 persons with disabilities. Another 36,100 demontraters were injured… including 8800 children. Of the 7,000 injured by live fire, 207 became permanently disabled with 156 requiring amputations. Among those killed and wounded were dozens of prominently identified journalists and medical staff.

Throughout Gaza, soon entering its fifteenth year of a choking siege, life remains a daily suffer for those living in one of the most densely populated areas of the world …all the while denied the minimal, essential guideposts of a healthy society. With large swaths of its infrastructure still in ruins and Israeli air attacks very much the norm, its two million residents live lives of isolated deprivation and despair subject to Israeli and Egyptian embargos of food stuffs, clean water, electricity and crucial medical supplies. For many in need of sophisticated medical treatment or equipment, the wait to exit the shuttered civilian prison becomes too little too late as they pass awaiting their turn. Others, including children, take their final breath alone in Israeli hospitals with families but 50 miles away denied passage with their loved ones not knowing if they will again see them alive.

In the West Bank, armed “settlers” rampage daily attacking the young, the elderly, the frail, or those who dare to go for a walk or a drive. Not a day goes by without a report of another farm or grove attacked with century old olive trees destroyed for no reason but to shutter local economies and to devastate often elderly tree tenders, tasked with the protection of an age old tradition. According to the United Nations, 11,000 olive tree have been damaged or destroyed in a calculated settler strategy for dispossessing Palestinians of their land.

On November 3, 2020, the Israeli Civil Administration arrived suddenly at the Khirbet Humsah community, in the Northern Jordan Valley, with a military escort and two bulldozers and diggers. With but a few moments notice, they destroyed dozens of tents, sheds and livestock pens, water containers, solar panels, feeding troughs and tractors, and 30 tons of livestock fodder. By the time they moved on to the next village, they had smashed a community that was home to 74 people including 41 minors and numerous sheep and newborn lambs. Its destruction was ordered as one of 38 such villages that sit on land the Israeli military wants for training… training to destroy countless other villages, homes, lives with greater speed and proficiency.

Several day before Israel destroyed a water supply line in Masafer Yatta, South Hebron Hills ,which provided water supply to the communities of Maghayir al-‘Abid and Khirbet al-Majaz. In late September of this year, Israeli bulldozers descended upon the community of She’b al-Batem, in the Masafer area of the South Hebron Hills. Before they left, they destroyed the home of two families… leaving 14 people homeless, including 10 children… one of them with a physical disability. Later that day, they proceeded to the community of Khirbet a-Rakeez where they demolished the homes of four families, leaving 17 people, including 10 minors and a woman with special needs, without any shelter. The week before, Israeli Civil Administration arrived at the community of Khalet Taha, in the Hebron District, accompanied by a military escort and Border Police. When they left, the homes of three families had been destroyed along with a large water reservoir, a well under construction, a power grid that stretched over 600 meters and razed land intended for building another water reservoir and a cattle pen.

These demolitions are by no means an anomaly. They occur daily throughout Palestinian Bedouin districts leaving countless families homeless, modern infrastructure destroyed, international development and improvement grants wasted and a tradition of the millennium struggling to see but another tomorrow. Yet they are not limited to distant desert outposts.

Very much the quiet, public face of an unbroken tear of ethnic cleansing, civil Israeli society aspires to undertake, in relative silence, what its military has long accomplished by unleashed bomb and bullet. Indeed, in its rush to erase generations of cultural and religious diversity, over the last few years Israeli demolitions in the greater East Jerusalem area have caused the destruction of several hundred residential and commercial structures… leaving hundreds of Palestinians homeless and dozens of businesses in ruins. This drive to turn Jerusalem into one huge Euro/American synagogue is but a continuum of the last fifteen years during which more than one thousand- five hundred residential and commercial units have been demolished by Israel… leaving more than three-thousand Palestinians homele… including some one thousand- five hundred minors. But, then again, with history, at times, a precursor of what is yet to come and almost 10,000 Palestinian children detained… largely uncharged, unprosecuted and unrepresented over the last two decades… Zionists might argue, with straight face and determined purge, in Palestine there’s really no need for permanent housing.

Joe Biden has spent 50 years fleeing necessary friction; slapping backs trying in the name of some useless call for collegiality, to be all things to all people… that is, to those like him who find comfort in the myth of labor but, in reality, the privilege of birth. And now, Joe Biden, it is your time. What will you do? You are 77 years old, surely but a one term president who owes nothing to anyone or anything but to history. But for you that is a debt long overdue and riddled with the liberty and life of others. To get a flavor of your crossing, it would be easy to walk down the lane of history and stop at the headstones of your Criminal Justice Act of 1996, your pillage of Anita Hill, your support of an Iraqi sanction that starved the final breath from half a million children. These were your personal gold stars to own… ones that forged a political pathway which took a true believer to the apex of power… and, now, you are there.

To millions of Palestinians, their nightmare is a parallel travel in time to that of yours. Though you have felt the unfortunate sting of personal pain and suffer, imagine that of a stateless people, long abandoned, left to fend for themselves against an unbroken volley of Israeli violence and world indifference. You have played a role in that tragedy. Your votes have enabled and your silence empowered unspeakable and undeniable crimes. It is not enough to say “no” to Israeli plans to annex lands that are not theirs… and never have been. Money, once again, for UNRWA will be but crumbs on a table long smashed by an occupation now in its seventh decade. To reopen the shuttered Palestinian consulate in Washington D.C. will surely help thousands of Palestinians to navigate a world of documents yet do nothing to unfold a state that is no less legitimate, than the one you are about to lead.

Be daring, be bold, be decent, be humane. Israel must understand that until the siege on Gaza ends, the theft of Palestinian lands done, and political prisons shuttered, the US checkbook remains closed.

You speak often of your faith… one that welcomes all; a community of love, compassion and embrace. Words can become reality if only you dare.

In moving closer to the sage in action, as well toward a personal end of days, keep an eye on and mind Ecclesiastes for guidance.

“Give justice to the weak and the fatherless; maintain the right of the afflicted and the destitute,” (Psalm 82:3). “Learn to do good; seek justice, correct oppression; bring justice to the fatherless, and please the widow’s cause,” (Isaiah 1:17).

Everywhere is War

{Originally published in Counterpunch June 5, 2020}

I Can’t Breathe by Joni Sarah White.

Everywhere is War

Until the philosophy
Which hold one race superior and another
Inferior
Is finally
And permanently
Discredited
And abandoned
Everywhere is war
Me say war

That until there no longer
First class and second class citizens of any nation
Until the color of a man’s skin
Is of no more significance than the color of his eyes
Me say war

That until the basic human rights
Are equally guaranteed to all
Without regard to race
Dis a war

That until that day
The dream of lasting peace,
World citizenship
Rule of international morality
Will remain in but a fleeting illusion to be pursued,
But never attained
Now everywhere is war
War

And until the ignoble and unhappy regimes
That hold our brothers in Angola
In Mozambique
South Africa
Sub-human bondage
Have been toppled
Utterly destroyed
Well, everywhere is war
Me say war

War in the east
War in the west
War up north
War down south
War war
Rumors of war

And until that day,
The African continent
Will not know peace,
We Africans will fight we find it necessary
And we know we shall win
As we are confident
In the victory

Of good over evil

Good over evil, yeah
Good over evil
Good over evil, yeah
Good over evil

Bob Marley, Rest in Power, reduced to lyric, words of consequence and self determination that have accompanied our collective journey since it began. At times, its vanguard has been the spoken word. At others, the pen; and, yes, more often than not, the rock, the mask, the gun have led the way. There is no singular correct or acceptable megaphone of resistance for those historically who have said enough. Defiance is dictated not by the aim of those who struggle but by the reach and tactic of those they fight. At times, sweet words and chant have triumphed while at others, tears and smoke and blood. But, rest assured, power concedes nothing without struggle. It never did and it never will.

Like a chorus of obedient social referees, pundits of all pedigree and purpose, the political and the pompous have tripped over one another the last few days as they race to be the first and loudest to dictate to hundreds of thousands in the streets, in this country, what is and what is not acceptable protest. All that has been missing from this stew of politically correct is announcing to the world, from statehouses and zoom alike, is the mascot… some of my best friends…

There is nothing sui generis about rebellion. Its paradigm has generated definition and debate for time immemorial from those whose names have long outlived their imprint upon the times in which they lived… and often led. There is nothing complex about rebellion. It finds its legitimacy in the natural marrow of those who agree to step back from complete self determination with the expectation that this transfer of personal power to the state will, above all else, be met with full equality and due process. Simply put, it’s known as the social compact. It has long been the linchpin of state power, the legitimacy from which it derives that command or loses it when, like any contract, its breach outlives its defined purpose.

At its core, the social compact reflects a long customary willingness of people to cede fundamental aspects of personal freedom to governments in exchange for institutional concern and support for their health, safety and equality. This largely unconscious cede is very much a fragile connection, however, one that maintains relevance and purpose only so long and so far as people feel invested in the machinery of state, its credibility and its integrity. When those institutions that carry historically fail, people instinctively reclaim their limited loan of independence. For some, a legislative voice is the echo of that loss as they pursue traditional electoral process in an effort to regain a sense of equity and purpose. Others withdraw to the safety of their solitude finding comfort in isolation, hopeful and committed to the folly that political leadership will gratuitously meet their task if for no other reason than to hang on to personal posture and gain. Then stand those who have never found comfort or security in the notion that a loss of liberty necessarily means more freedom. It is to them that we owe much… naysayers of blind political faith who have earned the scorn of institutional liberals who, with ease, turn blind eye to the obvious… opting instead for the witting embrace of surreal political caste.

Future Now by Joni Sarah White.

Long ago compliance to comfort and denial was swept away by those who welcomed dare to the convenience of silence. There was, for example, a guy, a man named Paine, an author and revolutionary with Common Sense who with ferocious pen rejected any social compact that vested total, unilateral and endless power to a throne be it emerged from legacy birth or the voting booth. To Paine, the social compact’s aim was to protect the rights of each individual who entered into it:

“A man, by natural right, has a right to judge in his own cause; and so far as the right of mind is concerned, he never surrenders it. He therefore deposits this right in the common stock of society, and takes the arm of society, of which he is part, in preference and in addition to his own.”

Never one to bind each new generation to the straps of the previous, Paine went further:

“There never did, there never will, and there never can exist a parliament, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the end of time or of commanding forever how the world shall be governed, or who shall govern it. Every age and generation must be free to act for itself, in all cases, as the age and generation which preceded it.”

Sage vision and powerful words by a pamphleteer-philosopher who rejected the Presidency turning, instead, caution to the wind as he returned to England and then to France where his words inspired yet another revolution. Though iconic, Paine’s voice has not been singular in the historical debate over the social compact in a country built of repression and rebellion of theft and talisman of vision and violence. These expressions speak to an inherent, ever-present, tension between an individual’s drive to climb a mountain they chase and the state’s demand it control the nature of that journey… always, of course, because it’s in their legislated best interest. Others have tasted the acidic strain between ideal and fidelity.

To liberated slave Frederick Douglas…

“Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.”

To abolitionist John Brown, pursuit of personal principle was above all else the defining expression of one’s poise:

“Be mild with the mild, shrewd with the crafty, confiding with the honest, rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity.”

Legendary Apache leader Geronimo summed up, like few others, the interconnect between resistance and outside stare.

“I know I have to die sometime, but even if the heavens were to fall on me, I want to do what is right. I think I am a good man, but in the papers all over the world they say I am a bad man; but it is a bad thing to say about me. I never do wrong without a cause.”

While crowned by some, perhaps many, for his dutiful obey to non-violence Martin Luther King reminded us that

“…a riot is the language of the unheard.”

Malcolm X opined . . .

“If violence is wrong in America, violence is wrong abroad. If it is wrong to be violent defending black women and black children and black babies and black men, then it is wrong for America to draft us, and make us violent abroad in defense of her.”

These words of resistance are not mere abstract sentiment of an academic circle podcast for the detached and unaffected to debate as if their target has not repeated itself over and over and over and can, by magical ignore, be reduced to isolated anomaly. To the contrary, they target a hardscrabble road of a history that has demanded silence and obedience from those against whom it has all too often extracted the ultimate pain and punishment born of race and little else.

There is no uniform shout. Nor is its march a singular one… the product of inherited skin and pain alone. Today, all over this country, young white women and men have joined their family of color in announcing in a clear, unified and unmistakable voice that the social compact is shattered… a vehicle of power and promise for but the chosen few. For the cynics who dispatch the motivation of those who, themselves, have not felt the sting of racial hate and divide, anarchist Emma Goldman, spoke long ago of a bond sculpted not by the individual but the rejoice of the collective:

“It requires something more than personal experience to gain a philosophy or point of view from any specific event. It is the quality of our response to the event and our capacity to enter into the lives of others that help us to make their lives and experiences our own. In my own case my convictions have derived and developed from events in the lives of others as well as from my own experience. What I have seen meted out to others by authority and repression, economic and political transcends anything I myself may have endured.”

The streets of this country are filled with a cry of conscience not heard in more than half a century. It is a powerful united, demanding voice whether arched by passive resistance or pushed, in the eyes of some, by unsettling militant response. Yet, to ignore its shout or to reduce its legitimacy on the basis of its means of message is to guarantee history will once again repeat itself, adding to an already unbearable timeless graveyard of those entombed by color, and color alone, in the shadow of a social compact that for all too long speaks of lofty ideals but acts with the uncontrolled darkness of hate and murder.

The rate at which black Americans are killed by police is more than twice as high as the rate for white Americans. This is a non-comprehensive list of deaths at the hands of police in the U.S. since Eric Garner’s death in July 2014.LA Johnson/NPR

For background on a few of these victims, please visit https://www.cbc.ca/news/world/police-killings-recent-history-george-floyd-1.5593768 Note that these men, women and children were murdered by modern police officers.

Below is a very partial list of past lynchings of men, women and children from 1800’s to mid 1900’s. Note that the below is an incomplete list from Alabama. For a more complete list including all states please view https://www.ourtimepress.com/view-from-here-never-forget-the-lynchings-list/

Wes Johnson, lynched, Abbeville, Ala. Feb 2 1937
Jonathan Jones, lynched, Altoona, ALA, July 1 1904
N/A Pedigrie, lynched Andalusia, Ala. Feb. 20 1906
John Jones, lynched, Anniston, ALA, July 13 1890
Ray Rolston, lynched, Anniston, Ala. Nov. 24 1909
Willie Brewster, murdered, Anniston, Ala. July 15 1965
William Wallace, lynched, Axis, ALA Aug. 1 1910
Holland English, lynched, Bakerhill, Ala. Apr. 2 1894
Marsal McGregor, lynched, Banks, ALA Jan. 5 1899
Walter Clayton, lynched, Bay Minett, Ala. Apr. 6 1908
3 Unid. black men, lynched, Berlin, Ala. Dec. 8 1893
William Smith, lynched, Bessemer, Ala. Nov. 2 1912
James Jackson, lynched, Bibb Co, ALA Jan. 31 1897
John Steele, lynched, Birmingham, Ala. Sept. 27 1889
James Brown, lynched, Birmingham, ALA May 11 1901
Jerry Johnson, lynched, Birmingham, Ala. Sept. 3 1907
N/A Thomas, lynched, Birmingham, ALA Apr. 25 1909
Wilson Gardner, lynched, Birmingham, Ala. Aug. 24 1913
1 unid. man murdered Birmingham Ala. Aug. 23 1934
Addie Mae Collins age 10 murd. Birmingham Ala. Sept 15 1963
Denise McNairm age 11 murdered Birmingham Ala Sept 15 1963
Carol Robertson age 14 murdered Birmingham Ala Sept 15 1963
Johnny Robinson age 16 murdered Birmingham Ala Sept 15 1963
Virgil Ware age 13 murdered Birmingham Ala Sept. 15 1963

Please also visit https://source.wustl.edu/2018/02/police-kill-unarmed-blacks-often-especially-women-study-finds/

Israeli Justice… a Futile Chase

Israeli Justice… a Futile Chase

 

“Doctrine of Futility”

Seventeen years ago, 23 year old Rachel Corrie (a Washington State volunteer with the International Solidarity Movement) was crushed to death by an armored military bulldozer as she stood on top of a mound of dirt trying to prevent the dozer from destroying a civilian home in the Southern Gaza Strip village of Rafa. Wearing a bright orange vest and shouting out at the bulldozer through a megaphone, Corrie was murdered for the temerity of her unarmed act of peaceful defiance. More than a dozen years later the Israeli Supreme Court rejected her parents’ suit to hold Israel’s military accountable for her death. In finding that an “explicit statutory provision of the Knesset overrides the provisions of international law”, the Israeli High Court sacrificed well more than a century of settled international protections, including those memorialized under the laws of war and human rights, to the endless Israeli talisman of “wartime activity.”

More than a few historians can recall that very chant, raised and rejected at the Nuremberg Tribunals, which held Nazis accountable for targeted attacks on civilians throughout World War II.

Less than two months after the murder of Corrie, 34 year old James Henry Dominic Miller (a Welsh cameraman, producer and director who had won five Emmy awards for his work) was shot dead by an Israeli soldier, at night, while filming a documentary in the Rafah refugee camp. Moments after he and his crew left a Palestinian home bearing a white flag, two shots rang out. After the first shot a crew member cried out, “…we are British journalists.”. Soon, a second shot hit Miller, killing him instantly. Initially, one spokesperson reported that after the IDF discovered a tunnel at the house Miller had exited, he was shot in the back when caught in the middle of a crossfire precipitated by an anti-tank missile fired at Israeli troops. Another spokesperson said his death occurred during “…an operation taking place at night, in which the [Israeli] force was under fire and in which the force returned fire with light weapons.”

Later, both versions were retracted when it turned out that the round that killed Miller had entered not through his back but the front of his neck. Likewise, the tale of crossfire fell apart with witnesses reporting no such exchange of gunfire and none having been heard on an audio recording made contemporaneous to the incident.

Some two years later, an Israeli military police investigation into Miller’s killing was closed without returning any criminal charges against the Israeli soldier suspected of firing the fatal shot … though he was to be “disciplined” for violating the rules of engagement and for altering his account of what had occurred.

The following year, an inquest jury at St Pancras Coroner’s Court in London returned a verdict finding that Miller had been “murdered” and that the fatal shot matched rounds used by the IDF. Not long thereafter, the UK Attorney General made a formal request to Israel for it to prosecute the soldier responsible for firing the shot. That request was ignored. To date, no such proceedings have been undertaken by Israel …be it by an independent investigatory body, the military or the office of the state prosecutor.

In March of 2009, thirty-eight year old California native, Tristan Anderson, was hit in the forehead by a high-velocity teargas canister fired directly at him by an Israeli border policeman, some 60 metres away, following a regular joint Palestinian -Jewish demonstration against the Israeli separation barrier in the West Bank village of Ni’lin. When struck, Anderson was simply talking with three or four other activists in the center of the village some distance from the “shame wall” where the demonstration had earlier occurred. In the months prior, four Palestinians had been killed by soldiers during like demonstrations.

Taken to a hospital with his head split open, Anderson underwent three emergency brain operations which required the partial removal of his frontal lobe. The surgery, which left him in a coma and in critical condition, blinded his right eye and paralyzed half of his body. After fifteen months of hospitalization, Anderson returned home where, a decade later, he continues to require around the clock care because of permanent cognitive impairment and physical disability.

Several days after Anderson was crippled, Israeli police opened an investigation into the circumstances of the shooting. Given the 400 plus metre range of the canister, and their respective positions, there was clear evidence of criminal intent on the part of the soldier who shot Anderson. Despite this, the investigation was closed, some six months later, without explanation or any public finding… and with no criminal charges filed against any police or military personnel.

When no criminal charges were filed against those involved, the Andersons filed a civil law suit against Israel but waited years for the case to proceed in an Israeli court. Years later, the case remains very much in a state of judicial limbo with no determination as to it merits. Not unusual at all, counsel for the Anderson’s has noted that “…[t]he astonishing negligence of this investigation and of the prosecutorial team that monitored its outcome is unacceptable, but it epitomizes Israel’s culture of impunity. Tristan’s case is actually not rare; it represents hundreds of other cases of Palestinian victims whose investigations have also failed.”

As she walked out of the courtroom after a judicial proceeding into the civil lawsuit regarding the shooting of her partner, Gabby Silverman, who is Jewish, was served with an order that she had to leave Israel within the following 7 days because there was “insufficient proof that there was a lawsuit going on, and insufficient proof that she is a Jew.”

These three matters involving the murder or cripple of foreign nationals by Israel are very much the rule and not the exception in a state that sees dissent or disobedience as an open invitation for retaliation. For the fortunate, it means but arrest or expulsion for the less so …outright assassination.

For those who survive politically rooted Israeli assault, or their mourning heirs, the road to equity remains a dead end… one blocked by walls of incompetence or indifference… smothered by systemic delay and legislative fiat that convert black robes of justice to mere rubber stamps of state. To be sure, Israel’s failure to promptly and thoroughly investigate facts and circumstances, let alone to prosecute its agents… military or otherwise… who commit crimes against foreign nationals or to provide for an equitable and expeditious civil remedy for them or their loved ones, is well-known, indeed, notorious throughout the world.

For Palestinians, every step outside their home is to navigate a mine field of uncertainty; every encounter with an Israeli soldier or police officer a literal tempt to their life or liberty. The famed Israeli human rights center, B’Tselem, has archived a veritable cemetery of Palestinians victimized by extra-judicial Israeli assassination. Most cry out for justice from beyond the headstones that mark their name with little else but the smile of their memory. Meanwhile, loved ones wait for the call of justice… an echo, for almost all, never to be heard.

On July 13, 2011, twenty-one year old Ibrahim ‘Omar Muhammad Sarhan was shot dead at al-Far’ah Refugee Camp by soldiers who ordered him to stop during an arrest operation. When he refused, he was killed. Though a military investigation into his killing was opened, it was eventually closed, with no one charged, on the grounds “…that the shooting soldier’s conduct was not unreasonable given the overall circumstances and his understanding of the situation at the time.”

On February 23, 2012 twenty-five year old Tal’at ‘Abd a-Rahman Ziad Ramyeh was shot dead at the northeast corner to a-Ram, al-Quds District, after throwing a firecracker at soldiers during a clash with demonstrators. A military investigation into his death was closed “…on the grounds that the gunfire that killed Ramyeh was carried out in accordance with open fire regulations.”

On March 27, 2012, twenty-seven year old Rashad Dhib Hassan Shawakhah was wounded, in the village of Rammun, when he and his two brothers confronted two out-of-uniform soldiers who approached their home in the middle of the night. Believing the men to be burglars, the brothers, armed with a knife and a club, confronted the soldiers who, without identifying themselves, shot the three of them. Uniformed soldiers arriving at the scene shot Rashad, again, as he lay wounded on the ground. He died six days later. Although a military investigation was opened, more than seven years later no action has yet been taken.

On January 15, 2013, sixteen year old Samir Ahmad Muhammad ‘Awad of Budrus, Ramallah District, was shot and killed by soldiers near the Separation Barrier. After crossing the first barbed wire fence of the barrier, Awad was shot in the back and in the head as he tried to flee the soldiers’ ambush and return to Budrus. Although two soldiers were indicted, several years later, for reckless and negligent use of a firearm, the charges were eventually dismissed when prosecutors told the court that because their evidence had “weakened” there was no longer “…a reasonable prospect of conviction.”

On January 23, 2013, twenty-one year old Lubna Munir Sa’id al-Hanash was shot and killed while walking on the grounds of Al-‘ Arrub College, after a Molotov cocktail was thrown at an Israeli car traveling ahead of the vehicle in which the soldier who fired and the second-in-command of the Yehuda Brigade were passengers. The following year, an investigation into the killing by the military was closed after a finding that the “… shooting did not breach protocol and did not constitute any type of criminal offense.”

On December 7, 2013, fifteen year old Wajih Wajdi Wajih a-Ramahi was shot in the back and killed by soldiers, at the Jalazon Refugee Camp, while standing in the vicinity of teenagers in the camp who were throwing stones at the soldiers from approximately 200 meters away. Six years later, the case remains under military “investigation.”

On March 19, 2014, fourteen year old Yusef Sami Yusef a-Shawamreh of Deir al-‘Asal al-Foqa, Hebron District, was shot by soldiers after he and two friends crossed a gap in the Separation Barrier to gather gundelia [Arabic: ‘Akub], a thistle-like edible plant. Not long thereafter, a military investigation of the shooting was closed with a finding of the “…absence of a suspected breach of open fire regulations or criminal conduct on the part of any military personnel.”

On May 15, 2014, sixteen year old Muhammad Mahmoud ‘Odeh Salameh was shot in the back and killed in a protest near the village of Bitunya, near the Ofer military base, that included stone-throwing. He was not throwing stones when killed. Two years later, the military closed an investigation into the killing after it claimed that no evidence was found connecting a soldier to the shooting.

On July 22, 2014, twenty-nine year old Mahmoud Saleh ‘Ali Hamamreh of Husan, Bethlehem District, was shot in the chest and killed by soldiers when he stepped out of his grocery shop to observe clashes underway in the village. While a military investigation was initiated soon thereafter, four years later no decision has yet to be reached.

On August 10, 2014, ten year old Khalil Muhammad Ahmad al-‘Anati of the al-Fawwar Refugee Camp was shot in the back by a soldier while near other boys who were throwing stones at a military jeep in the Camp. He died of his wounds in hospital. Several years later, a military investigation into the child’s killing ended after “…the investigation found that the troops had acted out of a sense of mortal danger, and that no link between the gunfire and the death of the boy… could be proven.”

On July 23, 2015, fifty-three year old Fallah Hamdi Zamel Abu Maryah of Beit Ummar, Hebron District, was killed after soldiers entered his home, to make an arrest, and shot and wounded his son. When Abu Mariyah threw pottery at the soldiers from a second floor balcony of his home, soldiers shot him three times in the chest. A military “investigation” continues.

On September 18, 2015, twenty-four year old Ahmad ‘Izat ‘Issa Khatatbeh of Beit Furik, Nablus District, who was congenitally deaf, was shot in the back by soldiers near the Beit Furik Checkpoint. He died six days later. To date, it appears no investigation into his killing has been initiated.

On September 22, 2015, eighteen year old Hadil Salah a-Din Sadeq al-Hashlamun of Hebron was shot and killed when hit multiple times in her legs and upper body after refusing to stop on her way out of the Police (Shoter) Checkpoint. As it turned out a concealed knife was recovered from her. No criminal investigation into her killing was undertaken.

On October 5, 2015, thirteen year old ‘Abd a-Rahman Shadi Khalil ‘Obeidallah of the ‘Aydah Refugee Camp, Bethlehem District, was shot dead by soldiers as he stood, with other teenagers, approximately 200 meters away from a military post at Rachel’s Tomb where minor clashes were underway between Palestinians and soldiers. Although a military investigation into the child’s killing was initiated, no decisions have been reached more than four years later.

On November 6, 2015, seventy-two year old Tharwat Ibrahim Suliman a-Sha’rawi was shot dead by soldiers standing on a road after they “suspected” she was trying to run some of them over. Even after the car passed, soldiers continued firing at her. The military reported no investigation was launched as a “…preliminary review of the incident did not indicate suspicion of a criminal offense.”

On November 13, 2015, twenty year old Lafy Yusef Mustafa ‘Awad of Budrus, Ramallah District, was critically injured when shot in the back by soldiers after he broke free from their grasp and began to flee. Driven to hospital in a civilian vehicle, which necessarily took longer because of a military checkpoint, he was pronounced dead upon arrival. No investigation was undertaken as the military stated “…a preliminary review of the incident did not indicate suspicion of a criminal offense.”

On December 11, 2015, fifty-six year old ‘Issa Ibrahim Salameh al-Hrub of Deir Samit, Hebron District was shot and killed by Border Police and soldiers who “suspected” he was trying to run them over. Six months later, the military advised that no investigation would be launched into the incident as a “…preliminary review of the incident did not indicate suspicion of a criminal offense.”

On December 18, 2015, thirty–four year old Nasha’t Jamal ‘Abd a-Razeq ‘Asfur of Sinjil, Ramallah District, was shot and critically wounded, while walking home, by soldiers more than a hundred meters away who opened fire while other Palestinians threw stones at them. He died later that day in hospital. While a military investigation was opened it was apparently closed without any charges.

On February 10, 2016, fifteen years old ‘Omar Yusef Isma’il Madi of the al-‘Arrub Refugee Camp, Hebron District, was shot dead by a soldier in a military tower, at the entrance to the camp, while stones were being thrown at the tower. Though an investigation was launched, more than three year later no conclusion has been reported.

On May 4, 2016, twenty-three year old Arif Sharif ‘Abd al-Ghafar Jaradat of Sa’ir, Hebron District, (who had Down’s syndrome) was shot as he approached soldiers as they were leaving his village. He died six weeks later. Although a military investigation was closed because “…the gunfire at the casualty did not deviate from open-fire regulations” an appeal has been filed.

On June 21, 2016, fifteen year old Mahmoud Raafat Mahmoud Mustafa Badran of Beit ‘Ur a-Tahta, Ramallah, was fatally shot… and four other young men injured… by soldiers who fired on their car while they were driving through a tunnel on their way home from a night at a swimming pool. An investigation was closed by the military which concluded “…in light of the circumstances of the incident, the miss-identification of the car was an honest and reasonable error, and it was permissible for the troops to initiate suspect apprehension procedure.”

On October 20, 2016, fifteen year old Khaled Bahar Ahmad Bahar of Beit Ummar, Hebron District, was shot in the back and killed as he ran into a grove fleeing soldiers. Although an investigation was reportedly begun, more than three year later no action has ensued.

On October 31, 2017, twenty-six year old Muhammad ‘Abdallah ‘Ali Musa of Deir Ballut, was shot dead by soldiers, while driving to Ramallah with his sister, after soldiers had reportedly been alerted that a suspicious vehicle was approaching. Ordering the car to stop, one of the soldiers began to fire at the car, and continued even after it had passed by, without any of its passengers having tried to harm anyone. It was reported that Musa lay wounded on the ground for some 10 minutes without receiving any medical care and was later seized by soldiers while being treated by a Palestinian ambulance team. Two years after the military opened an investigation, it was closed because the soldiers had “…acted in accordance with open-fire regulations and because their operational actions did not evince ethic deficiency.”

On January 30, 2018, sixteen year old Layth Haitham Fathi Abu Na’im of al-Mughayir, Ramallah, was shot in the head and critically injured by a rubber-coated metal bullet fired by a soldier from 20 meters away, after returning to his village post clashes he had taken part in had ended. A military investigation is pending.

On December 4, 2018, twenty-two year old Muhammad Husam ‘Abd a-Latif Hbali of Tulkarm Refugee Camp, was shot in the head by soldiers from behind. Intellectually disabled, when shot, he was moving away from soldiers while carrying a stick. All was quiet at the time he was shot. A military investigation has been on-going since.

On December 14, 2018, eighteen year old Mahmoud Yusef Mahmoud Nakhleh of al-Jalazun Refugee Camp Ramallah, was shot in the back by soldiers from about 80 meters away while running near the entrance to the refugee camp… after others had thrown stones at a military post at its entrance. Soldiers dragged Nakhleh away by the arms and legs and denied him medical treatment for about 15 minutes. He died soon thereafter. A year ago, a military investigation was launched.

On December 20, 2018, seventeen year old Qassem Muhammad ‘Ali ‘Abasi of Ras al-‘Amud, East Jerusalem, was fatally shot in the back by soldiers, who were stationed near a checkpoint, as the car in which he and three of his relatives were passengers was driving away from the checkpoint. A military investigation was opened.

On March 20, 2019, twenty-two year old Ahmad Jamal Mahmoud Manasrah of Wadi Fukin, Bethlehem, was shot dead by a soldier who fired at him from a military tower near a local checkpoint. At the time he was killed, he was helping a family whose car had been shot at by soldiers and had pulled over. An investigation is pending.

On March 7, 2019, seventeen year old Sajed ‘Abd al-Hakim Helmi Muzher, a volunteer medic, from the a-Duheisheh Refugee Camp, Bethlehem District, was shot in the stomach as he ran to evacuate a Palestinian who had been shot in the leg when stones were being thrown at troops who had entered the camp. He died later that day. A military investigation is on-going.

These horrors are but a microcosm of a deadly, systemic tradition that has raged unabated for generations in which thousands of largely young Palestinians have been targeted, crippled and murdered without penalty of consequence to Israel’s military or security structure… essentially unmonitored and uncontrolled… indifferent to human rights and international law. Yes, there have been those rare empty exceptions in which a perverse judicial performance has made a mockery of life and law with token punishment meted out for crimes that shock the conscience of humanity.

Thus, on January 1, 2013, twenty-one year old ‘Udai Muhammad Salameh Darawish of a-Ramadin, Hebron District, was shot dead by soldiers near the Meitar checkpoint as he fled them after he entered Israel, for work purposes, without a permit. Following a military investigation and plea bargain to negligent manslaughter, a soldier received a seven-month suspended sentence and was demoted to sergeant.

Two more recent judicial miscarriages remind us, once again, that law in Israel remains but a gavel for Jews and a bludgeon for all others:

On May 10th of this year, Elor Azaria, an Israeli medic who faced up to 20 years upon his conviction for manslaughter, walked out of prison after serving but nine months of an eighteen month sentence originally imposed on him by a military court. It was subsequently reduced to fourteen months by the IDF chief of staff and then again by the army’s prison parole board (and agreed to by military prosecutors) for his cold-blooded execution of twenty-one year old Abdul Fatah al-Sharif  who lay injured and motionless on the ground after stabbing, but not seriously injuring, an Israeli soldier in Occupied Hebron. With calm, deliberate ease, Azaria was recorded as he approached his victim, cocked his rifle and executed him with a single shot to his head.

Not long ago, an Israeli military court sentenced a soldier to one month of the military’s equivalent of community service over the execution of fifteen year old Othman Rami Halles who he shot dead during protests near the Israel fence east of the Gaza Strip on July 13, 2018. The unnamed soldier was convicted for “…acting without authorisation in a manner endangering to life and well-being.”

These sentences pale in comparison to those routinely imposed upon Palestinian children convicted of throwing stones. For example, sixteen year old stone thrower Saleh Ashraf Ishtayya was sentenced to three years and three months in prison. Fourteen year-olds Muhammad Ahmad Jaber and Murad Raed Alqam received three year sentences. Seventeen year old Muhammad Na’el and sixteen year old Zaid Ayed al-Taweel each received two years and four months in prison for the same offense. None of these children injured, let alone, took the life of an Israeli.

Tragically, casualties have long been the anguished, up-close face of the Occupation with an historical character that wields a deadly reach unmatched and long ignored by the world. As very much a perverse rite of passage, thousands of Palestinian civilians have paid the ultimate price for little more than their presence… lost to multiple high-tech military operations that have targeted residential communities and schools, hospitals and core infrastructure. Many more have been wounded or crippled by relentless Israeli attacks designed to leave survivors not just overwhelmed and battered but with a sense of isolation and futility. Nowhere has this brutal assault on fundamental human rights and international law been more conspicuous than through the sniper attacks on Gaza, over the past 18 months, that have slaughtered or injured tens of thousands of demonstrators whose only weapons have been the step of their march and the resound of their voice. And what of international law?

Volumes have been written on humanitarian law… the law of war and human rights. No doubt they line the walls of judicial halls throughout Israel… from its lowest military courtroom in the Occupied Territories to the highest civilian chamber that claims to rule supreme as the guardian of due process and equal protection for Israeli citizens and those held captive by it. Yet, even a cursory glance by an untrained eye leaves the imprint of a judicial system that is subservient to the chant of state security and legislative fiat and slowed to a process of delay that drags on and on for years leaving no one but Israeli Jews comfortable in the notion that they will have their day in court and with speed and fairness.

Millions of Palestinians are held captive in the Occupied Territories be it in the West Bank by security onslaught or military patrol or by the heap of Concertina wire, sniper mounds and air force and naval watch that keeps all of Gaza imprisoned every minute of every hour of every day. For these foreign nationals… and they are foreign nationals… they never see the inside of an Israeli civilian court or the due process it infers. For these perpetual prisoners, the uniformed soldiers that carry weapons become uniformed soldiers that investigate and prosecute cases to uniformed soldiers that pass judgment adorned not by robes of independence but by order of salute. As noted above in the archive of causality, few if any Palestinians ever obtain due process and equal protection of the law, let alone with independent and foreseeable resolution, as investigations and cases linger on for years pushed, predictably, to the back of the line as each new public outrage unfolds. This is not justice but the “Doctrine of Futility” at its primordial worst.

International Relief

It is settled law that before seeking international relief, aggrieved parties must first seek redress for harm, caused by a state, within its own domestic legal system. Exhaustion of local remedies (ELR) is intended to uphold state sovereignty by recognizing its own judicial process as a presumptive vehicle for the independent, equitable and expeditious resolution of claims against the state. ELR presumes a state’s judicial and administrative systems provide for a credible and apolitical avenue for injured foreign nationals to obtain their day in court before moving-on for diplomatic protection or undertaking international proceedings directly against the state. Yet, very much the proverbial beauty locked in the eyes of the beholder, provisions like equitable, independent and expeditious are routinely recast by repressive regimes across the globe to mirror little more than partisan safeguard of the state’s tyrannical needs and agenda.

Nowhere is that more palpably evident or painfully clear than it is in Israel where judicial remedies have long and repeatedly proven to be little more than a convenient faith based tease… a non-existent march to the beat of the overarching political gavel of the Knesset. For Israeli Jews, “all rise” portends opportunity denied all others. For Israeli Jews, lady justice cheats as she peeks out from behind her blindfold… for all others, she is but a symbol without a sign.

The ELR rule is a foundational mainstay of all global and regional international human rights entities and covenants. For example, within the UN, the International Covenant on Civil and Political Rights mandates that it’s Human Rights Committee “shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law.”

Likewise, the European Convention on Human Rights provides that the European Court of Human Rights “may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law.”

The American Convention on Human Rights requires exhaustion of local remedies “in accordance with generally recognized principles of international law” before the submission of petitions or communications to the commission.

The African Charter on Human and Peoples’ Rights provides that the Commission “can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged.”

This exemption is but one of several that find smooth fit within the so-called “Doctrine of Futility.” Under this doctrine, while release from the requirements of the ELR fluctuates from venue to venue, by-in-large one need not chase domestic justice where none can be had. Thus, in general, ELR may be bypassed:

a. If the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;

b. If the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or

c. If there has been unwarranted delay in rendering a final judgment under these remedies.

Israel is a veritable primer, a law school’s teach, on when and where all three damning exemptions merge to validate an apt and speedy march to the nearest international forum in pursuit of justice and human rights otherwise willfully denied foreign nationals in any courthouse or military barrack that flies the banner of the Star of David.

And just who are foreign nationals? In most jurisdictions they cut a relatively narrow swath; typically but a handful of tourists, temporary workers, or businesses and those incidentally injured by practices of cross-border states. Yet, the numbers balloon to millions of foreign nationals in occupied Palestine where all aspects of every Palestinian’s life is impacted… if not controlled… daily by an occupation force and judicial process of another state.

Independent of the pervasive culture of military and security violence and its companion lack of fairness and accountability, the Israeli judicial system… both criminal and civil… presents a compelling case study in a double standard delayed and disabled based solely upon ones faith and national identity.

Child Prisoners

Over the last two decades, more than 8,000 Palestinian children (foreign nationals) have been arrested in the Occupied Territories and prosecuted in an Israeli military system devoid of any meaningful due process or equal protection for the most vulnerable and traumatized among those that have known nothing but the bark of occupation their entire lives. It is a military justice process notorious for the systematic ill-treatment and torture of Palestinian children.

Several hours after their arrest, these children arrive at an interrogation and detention center alone, tired, and frightened. All interrogations, by their very nature, are inherently coercive no matter the age or experience of its victim. None are more so than for an often bruised and scared child forced to go through the process without the benefit of counsel or the presence of parents who are never permitted to participate.

Israeli law provides that all military interrogations must be undertaken in a prisoner’s native language and that any statement made must be reduced to writing in that language. Despite this prohibition, Palestinian detainees are typically coerced into signing statements, through verbal abuse, threats, and physical violence, that is memorialized by police in Hebrew… which most cannot understand. These statements usually provide the main evidence against children in Israeli military courts.

The Military Court Process

The military “courts” themselves are held inside military bases and closed to the public… and usually family members of the accused. Within these courts, military orders supersede Israeli civilian and international law.

In military courts, all parties… the judge, prosecutor and translators… are members of the Israeli armed forces. The judges are military officers with minimal judicial training and, by-in- large, served as military prosecutors before assuming the bench. The prosecutors are Israeli soldiers, some not yet certified as attorneys by the Israeli Bar. Under the rules of Occupation, all defendants in military courts are Palestinian… as the jurisdiction of the Israeli military court never extends to some eight hundred thousand Jewish settlers living in the West Bank who are accorded the full panoply and safeguard of Israeli civil law.

Under military law, Palestinians can be held without charge, for the purpose of interrogationfor a total period of 90 days during which they are denied the benefit of counsel. Detention can be extended without limit and requires but an ex parte request of military prosecutors. By comparison, a Jewish citizen accused of a security offense, within the Occupied Territory, can be held without indictment in the civil process for a period of up to 64 days during which time counsel is available at all times.

Though Palestinian detainees are entitled to military trials which must be completed within eighteen months of their arrest, their detention can be extended indefinitely, by a military judge, in multiple six-month increments. It is this limitless process which has left thousands of Palestinian political detainees imprisoned for years on end without the benefit of counsel, formal charges, or trial. The comparable time limit for detainees in Israeli civilian courts is no more than nine months.

While criminal liability begins at age twelve for Palestinians and Israelis alike, under the military system Palestinians can be tried as adults at sixteen. For Israelis, prosecution as an adult in a civilian court is eighteen. This two year difference, without physical distinction of consequence, can mean a sentence disparity of many years should a conviction ensue. In some cases, it can literally mean a difference between a few years in prison versus decades upon conviction.

Although the United Nations has repeatedly held that the military justice system in the Occupied Territory violates international law, it has done nothing to ensure equal protection and due process to hundreds of thousands denied justice by virtue of being Palestinian and nothing else. This continues to be true for Palestinian minors. According to B’tselem “…at the end of October 2019, 185 Palestinian minors were held in Israeli prisons as security detainees and prisoners, including one under the age of 14.”

Neighborhood Cleansing

With the onset of the Occupation in 1967, Israel initiated a wide range of largely extrajudicial strategies in its incessant effort to claim new municipal boundaries and to remake the age old Palestinian character of east Jerusalem. What began with the seize of large swaths of vacant land surrounding the Old City… for the construction of illegal Jewish settlements… eventually gave rise to the de facto annexation of East Jerusalem… universally condemned as a flaunt of international law. However, never ones to allow legal standards to become barricade to political needs, successive Israeli governments have accelerated the Judaization of the historic capital of Palestine, typically using the call of security as a pretext, while Israel’s judiciary has looked away…largely indifferent to its responsibility to ensure that equal justice be done.

Recently, Israel destroyed 10 mostly unfinished buildings containing some 70 apartments, in the Wadi Hummus neighborhood on the edge of southeast Jerusalem, which were being built with permits issued by the Palestinian Authority in an area under its recognized jurisdiction. Displacing 17 Palestinians, including an older couple and five children, from apartments that were finished, the demolitions also left several hundred others, awaiting housing in the buildings, saddled with ensuing economic loss. Though condemned by the United Nations, the government nonetheless proceeded with the demolitions after Israel’s High Court refused to intervene on the grounds that the project was being built in a military-declared buffer zone near a “security” fence that had gone up years before. That barrier, which is part of the system of steel fences and concrete walls which runs throughout the West Bank and around Jerusalem, was subsequently found to be illegal by the International Court of Justice in 2004. Like hundreds of other international declarations, Israel ignored the findings.

The destruction of these residential buildings is by no means an isolated or unpredictable phenomenon. In point of fact, another one-hundred buildings completed, or under construction, under similar circumstances in the same neighborhood, face the same risk.

While the proffered basis for demolitions has changed to suit the Israeli needs of the moment, they play an essential mainstay in its intended policy of ethnic cleansing throughout east Jerusalem. This modern-day pogrom finds its genesis in a cap that was placed on the expansion of Palestinian neighborhoods in the days following the seizure of east Jerusalem, thereby forcing many to build illegally according to the laws of the Occupation. This artificial limit has been exacerbated by systemic discrimination when it comes to the issue of building permits in east Jerusalem. Though Palestinians make up more than 60% of the population of the Old City according to the Israeli civil rights group Peace Now, they have received just 30% of the building permits issued by Israel dating back to 1991. Given these circumstances, it has been estimated that more than twenty-thousand housing units built in traditional Palestinian neighborhoods dating back to 1967 fall into the category of illegal… thus placing them at risk of demolition no matter what their condition, how long they have stood or the numbers of their occupants.

This danger has found new impetus since the United States moved its Embassy to east Jerusalem, essentially declaring it to be the capital of Israel. Emboldened by this act, and not now fearing either political or economic reprisal by the United States (or meaningful intervention by its own courts), Israel has recently accelerated its demolition policy leading to the destruction of several hundred residential and commercial structures… leaving hundreds of Palestinians homeless and dozens of businesses in ruins.

While precise figures are unknown, it is estimated that, over the last fifteen years, more than one thousand- five hundred residential and commercial units have been demolished by Israel leaving more than three-thousand Palestinians homeless… including some one thousand- five hundred minors.

Of late, we have seen an increase in the number of demolitions carried out by Palestinians, themselves. While some construe the demolition of several dozen Palestinian structures by their own residents as almost a willful, romanticized act of political defiance, self-demolition has less to do with self-determination than it does the unbearable cruelty and cost of the moment. The aching reality is that a judicial system without justice has authorized the state to bill those for the cost of the destruction of their own homes… lest they do so themselves.

Collective Punishment

While Israeli authorities have argued that punitive home demolitions provide “…a severe message of deterrence to terrorists and their accomplices”, such demolitions violate the Fourth Geneva Convention as well as a host of Israel’s human rights obligations… in particular that no-one should be punished for an act they did not commit. Under Israeli law, those subject to punitive home demolitions are accorded an opportunity to appeal a demolition order to a court. However, Israel’s High Court has routinely refused to consider the absolute prohibition in customary international law against collective punishment of civilians in occupied territory when ruling on petitions against punitive home demolitions in the West Bank, including in east Jerusalem. As almost settled law, the Court has held that demolitions can, in general, be justified as “proportionate” when balanced against the need to deter other Palestinians from carrying out future attacks. Moreover, as a practical matter, rare are the opportunities for prospective victims to obtain timely judicial relief thru applications for review of looming military demolitions.

Thus, according to Article 119 of the Military Authority, the IDF commanders responsible for application of military measures in the West Bank and East Jerusalem are empowered to confiscate and demolish any property, if he determines that the inhabitant…and not necessarily owner… of the property resorted to terrorist violence. That power is not vested or required to go through judicial process but rather is purely administrative. Thus there is no need for a court order to authorize house demolitions and the evidence required to demolish a home carries for the military a low threshold of internal administrative proof …“…convincing in the eyes of a reasonable decision maker.”

Though reprisal has long enjoyed a high degree of support among the Israeli public, and thus politicians, there can be no reasoned debate over whether house demolitions constitute a form of collective punishment, and thus a war crime. Prohibited under basic principles of human rights law and Articles 33 of the Fourth Geneva Convention of 1949 and Article 50 of the 1907 Hague Regulations, demolitions also constitute cruel, inhuman and degrading punishment and are selectively applied as against Palestinians and never Jews who commit acts of terrorism.

At their core, these demolitions, which also violate the prohibition on the destruction of private property set forth under Article 53 of the Fourth Geneva Convention and Article 23(g) of the 1907 Hague Regulations, seek not to penalize a “terrorist” who is likely dead or in custody charged with serious offenses and facing years, if not decades, in prison, but rather, family members who reside in the home targeted for military reprisal. Thus, innocent parents, husbands or wives, children and siblings or other residents are left homeless as they are forced to bear the consequences of the acts of loved ones, even in the absence of any prior knowledge or nexus to them.

Although Israel has periodically suspended home demolitions, in times of heightened tension or militant resistance they have become very much part of the military mainstream since the onset of the Occupation. While the exact number of such demolitions is neither documented nor certain, it is estimated that more than 2,000 Palestinian homes have been destroyed pursuant to Article 119 since 1967. Though the Israeli High Court requires the IDF commander to hold a hearing for the residents of a property to be destroyed and permits a petition to the court to stay the demolition, these “safeguards” have proven to be a promise without purpose. While the court has stressed those demolitions are harsh security measures that should be used only in “extreme circumstances” not once has it overridden the authority of the IDF to proceed accordingly.

Lest there be any doubt that history can be but a harbinger of things to come, some of those that run the bulldozer of today in Palestine are progeny of those who picked through the rubble of homes and businesses ransacked and destroyed as collective punishment for acts of terrorism. Undoubtedly a pretext, in 1938, following the assassination of a German Embassy attaché in Paris by a young Polish-German Jew, a campaign of collective reprisal was unleashed against Jews in Germany. Known as Kristallnacht, crowds set fire to synagogues, smashed shop windows, demolished furniture and stocks of goods with the approval of the German Government. Years later Nazis applied the principle of Sippenhaft (collective responsibility) to avenge the assassination of Reinhard Heydrich ,the architect of the “Final Solution to the Jewish question”, through mass executions and the destruction of two Czech villages… Lidice and Lezaky.

With predictable promote, Prime Minister Netanyahu recently indicted the ICC investigation of Israel for war crimes and crimes against humanity as little more than anti-Semitism. Putting aside Netanyahu’s readily transparent canard, at its core, the ICC typically does not exercise its jurisdiction pursuant to the Rome Statute unless and until a state fails to provide a meaningful domestic remedy for violations of international law. On this score, few can deny that no such equitable and effective opportunity exists within Israel. As noted by Human Rights Watch, “…the impetus for the establishment of the ICC is the stark failure of national court systems to hold the perpetrators of genocide, crimes against humanity, and war crimes accountable under law.”

Be it by virtue of the blanket political control of the Knesset or the deadly untamed reach of its security apparatus, Israel’s judiciary stands as an emasculated reminder that foreign nationals, whether occupied Palestinians or Westerners seen as enemies of the state, have not, and cannot, obtain due process and equal protection of the law, let alone in an independent and expeditious manner, through Israel’s judicial process. Under these circumstances, the Doctrine of Futility overshadows the need to exhaust local remedies to seek international relief for domestic wrongs. The Doctrine does not provide for an easy and settled pathway for foreign nationals to obtain justice outside the confines of extant domestic procedure. Yet, at its core, this international exemption finds its greatest potential and need when and where, as here, a judicial system is built upon a double standard of law… one for Palestinians, the other for Jews.

Stanley L. Cohen is lawyer and activist in New York City.

The Brazen Detention of Marzieh Hashemi, America’s Newest Political Prisoner

The Brazen Detention of Marzieh Hashemi, America’s Newest Political Prisoner

 

Any discussion of the detention of journalist Marzieh Hashemi must begin in the historical context that all presidents have used the Department of Justice for constitutionally prohibited personal ends. The calculated seizure and political intimidation of Mrs. Hashemi and her family in the United States is but the most recent flagrant instance.

Whether it’s the deportation of political enemies during the Palmer Raids of the early 1900’s, or the COINTELPRO attacks a half a century later upon dissidents of color through assassination, mock show trials and indefinite detention of political prisoners, or the post 9-11 hysteria that drove hundreds of thousands of Muslims from the United States, or the targeted attack on whistle blowers and construct of the surveillance state by the last president, all have seen their executive power as essentially boundless, and their thirst to use it . . .  largely unrestrained.

Yet none before has been so public, indeed brazen, as is the current one in his utter contempt for the settled rule of law and procedure. Indeed in Trump’s view the Department of Justice exists as but a mere extension of his own political thirst and agenda and may be employed as a tool to implement personal and political reprisal. In this light, the lawless seizure of Marzieh Hashemi was as predictable as it is ominous in both process and substance.

The history of the Foreign Agent Registration Act (FARA) has largely lain dormant with few prosecutions, if any, for violations and none before that have triggered the seizure of an American journalist pursuant to the subterfuge of a material witness order, here employed as little more than political handcuffs.

As of now there has been no official comment by the Department of Justice as to the nature of the grand jury dodge that served for the illegal and unnecessary seizure of Mrs. Hashemi when she recently de-boarded a flight in St. Louis, Missouri.

Initial grounds for the unprecedented seizure of the highly respected anchor for Press TV swung wildly, ranging from leverage to obtain the release of other Americans “held” in Iran to a US investigation into possible violations of the recently re-imposed political sanctions against Iran to OFAC violations (Office of Financial Assets Control) arising from her unlicensed work for a designated foreign state.

If, as it turns out, the seizure of Mrs. Hashemi finds its genesis in an unprecedented criminal investigation of a news outlet pursuant to FARA, to understand just how calculated and arbitrary a step it is, one need only look at its very different  application against the Russian state owned media outlets Sputnik and RT.

Cast in the light of the hysteria over alleged Russian interference in the 2016 election, Congress and various government agencies turned their attention to both outlets. Claiming the need to provide listeners with notice as to their partisan bent, in point of fact FARA was used against Sputnik and RT as so much a legislative bully-pulpit in a readily transparent effort to “purify” if not control the message of these two foreign owned outlets.

Yet, if FARA triggered the stunning seizure of Marzieh Hashemi, that precipitous step bears no likeliness whatsoever to the procedural and substantive approach employed by the US government with regard to like violations by Sputnik and RT.

In neither case were journalists of the networks seized by the government for possible violation of FARA. In neither case were the networks targeted for grand jury investigation.  In fact, unlike here, both media outlets were given ample opportunity to raise objections to the applicability of FARA to their activity and when their arguments proved unavailing a chance to either register with it or to cease operations within the United States. Failing this, the government threatened but did not, at any time, undertake criminal prosecutions or arrests of employees, let alone journalists, who worked for the outlets.

That is not what has apparently happened here with Press TV. In this regard there is no evidence that Press was put on notice that it’s “presence” within the United States or acquiring and using information it received in and about controversial US issues for airing in Iran, and elsewhere, triggered FARA oversight let alone a criminal violation of its reach. Nor, does it appear, Press was given an opportunity to challenge a claim that its activity fell within the rubric of FARA. Finally, there is no evidence Press was given an option to either register with FARA or to cease its operation or a warning that failure to do so could result in the prosecution of the network or the arrest of its journalists.

In this light it is palpably clear that the Department of Justice has employed a double standard between its approach to the application of FARA to Sputnik and RT and to that applied as against Press TV.

Given a grand jury investigation into Press for an alleged criminal violation of FARA and the arrest of one of its most respected journalists, it is beyond cavil that the US government has chosen to selectively enforce and punish it for political reasons driven, no doubt, by an Oval Office agenda.

Can it be that this double standard is as much the result of the administration’s conscious effort to curry favor with the Russian government at the same time it seeks to punish Iran for the temerity of its political will and social independence?

Putting aside the government’s arbitrary application of FARA to Press, there can be no informed debate that the seizure and detention of Mrs. Hashemi pursuant to a material witness order is not just well beyond the norm, but here borders on political kidnapping.

As a rule subpoenas are served many thousands of times each year in the United States during the course of federal criminal or civil proceedings to ensure the availability of witnesses before grand juries or at trial who possess material and relevant information that is probative of a fact or an issue in controversy.

For those who, without legal challenge, simply refuse service of a subpoena or who seek to avoid or evade it the government or a private litigant may seek relief from the court to enforce compliance. Known as a material witness order, that relief compels the recalcitrant witness to appear before the court to determine for itself whether any further judicial intervention is necessary to ensure compliance with the subpoena.

A rare, by design, intimidating exception to the rule, a material witness order can only be issued pursuant to 18 U.S.C § 3144following a sworn fact based assertion that the necessary witness will not make herself available for testimony pursuant to normal process of law. Generally an affirmative showing must be made that the witness has by voice or conduct attempted, or will attempt, to flee or place herself beyond the reach of the court and thus unavailable to provide testimony in a given proceeding.

Once issued, a material witness order does not allow for indefinite detention of a witness but simply permits federal agents, in this case the FBI, to temporarily detain and present the witness to the court forthwith for a determination as to what steps, if any, must be taken to ensure the on-going availability and appearance of them as needed.

Although not charged with a crime, the court essentially considers the same factors for release or detention of a witness that it would weigh and balance if they had otherwise been arrested for an offense.  Among other things it must consider whether she is a flight risk or poses a danger to the broader community if released. It considers whether the witness is a citizen or lawful resident and if he or she has ties to the community such as family and employment. It may consider what affirmative acts if any have been taken by the witness to avoid process and appearance and what steps the government undertook before seeking judicial relief to obtain their availability before the grand jury or at trial.

Most important, the court must keep in mind that the witness has not been charged with an offense and should undertake such examination as is necessary to determine to the degree possible whether she will in fact appear for testimony of her own volition, thus militating against the need for imposition of any court imposed conditions.

Should the court remain unsettled over the willing availability of the witness to appear at a future proceeding, it has at its disposal a full range of coercive but non-custodial options ranging from bail or secured bond to home confinement or supervised release including reporting to pre-trial services and electronic monitoring such as an ankle bracelet. Typically, if released, the court will require that the witness surrender travel documents including any passport and restrict domestic transit during the pendency of the proceeding to the district where she is to reside and to that where her testimony is compelled.

Although the law varies from circuit to circuit there is generally a presumption that detention of a prospective witness especially long-term incarceration should be used sparingly and only as a last resort and where there is no less burdensome alternative. Nowhere is that more applicable, than here, where Marzieh Hashemi  is a US citizen with extensive family and life-long ties to the United States and who has made frequent travel to her home and community for family and professional reasons.  Indeed, there is nothing before us that indicates that she would willingly avoid or evade the jurisdiction of the court or has indicated any failure to comply with the lawful requirements of a duly issued subpoena.

To the contrary it beggars the imagination that Mrs. Hashemi would travel to the United States to visit with her children and grand children and to continue working on a documentary apparently long under way and, yet, without more, pose a risk of non-compliance with a subpoena for her testimony while here.

The voluntary arrival of Marzieh Hashemi in St. Louis Airport under her lawful name, with her duly issued passport and high profile persona puts the lie to any government claim that she is a fugitive, evasive or unwilling to voluntarily comply with lawful process of any court. Yet upon arrival, this prominent journalist and long standing critic of US policy at home and abroad was seized by the government and essentially disappeared as so much an unconstitutional domestic rendition. That she subsequently appeared before a court does little to salvage her abduction at the hands of government agents.

The public record with regard to the arrest and detention of Mrs. Hashemi is sparse indeed.  In this light it is, at this point, impossible to discern the basis for any claim that a material witness order was appropriate or necessary to assure her appearance before the grand jury.

Under the law, the government cannot seek nor can the court issue a material witness order on the basis of mere soothsay that non-compliance is expected at some future date on the part of a witness once served with a subpoena. Nor can it argue that it anticipates a potential witness will seek to avoid service or lawful obligation at some future date. To hold otherwise would be to empower the government to ignore long settled and basic procedure to obtain the testimony of a witness without resort to rank force and encourage its use as a systematic tool of coercion and intimidation.  Yet that is precisely what appears to have occurred with regard to Marzieh Hashemi.

Under the law it is not possible that the government could have been in possession of a material witness order for Mrs. Hashemi’s arrest upon arrival in St. Louis in the absence of any evidence that she had previously evaded service of a subpoena or fled the United States to avoid one only later to return. Nor is there any evidence that while living in Iran the US government attempted to serve a subpoena upon her or through counsel for some future appearance which she willfully ignored.

Under these circumstances it is well grounded to assume that as a Muslim and a popular Iranian employed journalist long critical of the United States, Mrs. Hashemi was, at some point, added to a list of political dissidents to be detained upon her return to the United States.  Once here, she was moved quickly by the government from dissident status to that of presumptive disobedient witness and arrested.

Marzieh Hashemi has appeared before a federal grand jury in the District of Columbia at least once, if not twice, yet remains detained in isolation under severe conditions that violate her fundamental religious rights and practices–a political prisoner, perhaps indefinitely.

There is simply no compelling reason that she remain in custody. As a United States citizen with no criminal history, and strong ties to her family and community here, there is no lawful basis upon which to conclude that she cannot and should not be released immediately under conditions that are routinely accorded to persons accused of federal crimes, at times even serious breaches of law.

Years ago in the shadow of 9-11 hundreds perhaps thousands of Muslims were rounded up and detained in political sweeps throughout the United States under the talisman and license of material witness orders as judges became blind gavels for government repression. Among them were citizens, resident aliens and lawful tourists. The one criterion that united all victims of the political frenzy was their faith and little else. I represented more than a few who sat frozen in federal detention facilities from coast to coast searching for truth and justice; for many, none was to be had for years to come. Others, upon release, fled the United States seeking refuge elsewhere from its mindless fear and blind hate.

Almost two decades later the political rage of this administration against Iran has once again unleashed its Justice Department as so much a partisan batter and little else.

Today Marzieh Hashemi sits alone.  Isolated and entombed deep in a government catacomb, she stands charged with no offense but in the eyes of this administration guilty as charged . . . a Muslim, a journalist, and a US ex-pat who has found shelter from its storm in Iran.

 

[Marzieh was released January 23, 2019]