Michael Deutsch is an experienced human rights attorney in the U.S., perhaps one of the most veteran and well-informed lawyers at that extremely difficult craft in this country. Michael graciously allowed us at Hard Crackers to pick his brains and share some of his experiences with us. To give you some idea of Michael’s journey down that road, here are some of the important things he has done:
Michael Deutsch has been a lawyer with the People’s Law Office and a Guild member since 1970. From 1991-1996 he was the Legal Director of the Center for Constitutional Rights.
Michael’s legal career has been devoted to the representation of political activists and political prisoners. He was one of the criminal defense lawyers for the rebelling Attica prisoners, a coordinator of the Attica Brothers Legal Defense, and one of the class counsel in the Attica civil suit which, after two decades of litigation, resulted in a 12 million dollar settlement.
He was attorney for the five Puerto Rican Nationalist prisoners imprisoned in the 1950’s who won an unconditional sentence commutation from President Carter in 1979, and represented Puerto Rican independentistas in Chicago, New York and Hartford who were charged with seditious conspiracy, the Wells Fargo expropriation, and subpoenaed before federal grand juries. He also helped to develop the “Prisoner of War” claim under international law for Puerto Rican prisoners.
Michael has defended Black Panthers, Black prisoners facing the death penalty, and was part of the legal team that challenged the first use of the high security “control units” for men at Marion Federal Prison and for women at Lexington Federal Prison.
More recently, Michael successfully defended Chicago Palestinian community activist Muhammad Salah charged with Terrorism and RICO as well as Palestinian community organizers targeted by the FBI and subpoenaed to a federal grand jury.
Also more recently, Michael represented Rasmea Odeh, the deputy director of the Arab-American Action Network (AANN), a former Palestinian political prisoner and torture survivor, who had been charged with providing false information on her naturalization application, nine years after she had received her citizenship. She was stripped of her US citizenship and after months of litigation was deported to Jordan and now resides in Ramallah.
Michael Deutsch has written and lectured extensively on prisons, international human rights, and political repression.
The following is a transcript of our very recent discussion with Michael Deutsch (MD) – Mike Morgan (MM) and John Garvey (JG)
MM: We’ve drawn up a kind of roadmap script of the issues and questions for the discussion. This includes essentially what we originally sent to you, but hopefully it allows for an easier flow from one topic to the other. I’m going to apologize ahead of time for reading here and there. You’ll be much more patient with my reading than you would be with my stammering, and stuttering, etc.
Okay, so let’s get going. The plan for this discussion was the result of a small group of us discussing the central issues around repression that would likely have an impact on today’s activism in support of Palestinian liberation.
The group is especially concerned that activists often do not understand very much about how state agencies implement different repressive strategies. And, as a result, they are unprepared to avoid unnecessary interference in their organizing and don’t know how to deal with different repressive scenarios when they’re faced with them. We don’t know anyone who’s probably more qualified than you are to help us think through some of these issues.
Obviously, there’s no need to tell you about what’s been going on in Palestine since October 7th, although we are hesitant to assume complete agreement when it comes to the actual events of October 7th. Unless you think otherwise, we don’t think we need to explore those issues.
Anyway, within days of the initiation of the Israeli assault on the Gaza, many thousand supporters of Palestinian freedom in the United States began going into the streets and taking other actions to express their solidarity with the people of Gaza and their opposition to the Israeli invasion. By all accounts the depth and breadth of these demonstrations has far exceeded any previous mobilization on behalf of the Palestinians. Within that movement we’ve all also witnessed a new level of cooperation between Arab Palestinian groups and Jewish anti-Zionist organizations. It doesn’t appear that this movement will go away anytime soon
Would you agree with that brief assessment, Michael? And what would you add to it?
MD: Well, I’m not sure. Once there is a ceasefire, if there ever is one, the level of protest is going be reduced. There will be people who are always going to be out there supporting Palestinian rights. But I don’t know necessarily that the breadth and the numbers of people that have been demonstrating are going to continue at the level it has now. But that’s not determined. We don’t know when that is going be so. The movement is going to continue as long as Israel is committing genocide against the Palestinian people in Gaza. So that would be my response to that.
MM: How would you describe the composition of the Arab Palestinian groups within the solidarity movement now, as compared to previous moments of heightened activity?
MD: I think it’s much broader than we’ve seen in the past. It involves a lot more people who have never been involved in demonstrations or have been involved in limited demonstrations. So, I think it is a point of departure from the past. But again, I don’t know what’s going to happen, once the immediate genocide in Gaza is ended, if people are going to continue to protest. But there are a lot of committed Palestinian and North American people and African American people who are outraged about it and have been educated about the whole history of the occupation for 75 years against the Palestinian people, so I think consciousness has been raised amongst people that maybe never thought that much about it, and I assume that it will continue at some level even after the armed conflict that’s been going on. We just have to see what’s going to happen in terms of repression and in terms of people committed to going out and demonstrating as often as they’ve done recently.
MM: On the subject of U.S./Israeli collusion, particularly with regard to police and intelligence. So far groups have been subjected to some arbitrary arrests and a good deal of surveillance. We also have no doubt that a lot of intelligence data is being collected by a variety of methods. We have to assume that there are real attempts to infiltrate existing groups and perhaps even be involved in the creation of new ones.
We’ve recently read a report that the NYPD has an office in Jerusalem. How would you assess the current collusion of police intelligence operations in Israel with those in the US.
MD: Well, I think it’s at a high level. I think there’s a high level of cooperation and it’ll continue not only with the New York Police, but the FBI. I was involved in a case in 2007, where two people were accused of being the leaders of Hamas, and basically were charged with aiding and abetting terrorism. In the lead up to that case, the FBI was in in Israel constantly sharing information with Shin Bet and other intelligence officers of the Israeli surveillance and security agencies. When we went to trial, there were leaders of Shin Bet in federal court sitting at the table with the US attorneys–working closely with them and being part of the prosecution in a federal court in Chicago. The two clients were charged with being members of a conspiracy to carry out a RICO enterprise, and the enterprise was Hamas.
When we had a hearing about the torture of one of my clients, the judge emptied the courtroom. We had evidence that the torture had caused him to confess, but the government still wanted to put his confession into evidence. They cleared the courtroom but the Israeli security people were allowed to stay and, of course, some of the Shin Bet (tasked with domestic intelligence) and Mossad (responsible for foreign intelligence and special operations) interrogators actually testified in the courtroom, but the public was not allowed in the courtroom for that either. There’s a history of the Israelis working closely with the US security forces in terms of repressing Palestinian activists, both in Palestine and in the US.
JG: Mike and I both read your Journal of Palestine Studies article about that that case and it is astonishing. Mike said he couldn’t put it down and I said they should make a movie out of it. To see the Israeli bad guys in the courtroom directing what the lawyers say is worth a 1,000 pounds of gold. It’d be interesting if you talked just a little bit more about what happened in that trial and what lessons we might take from the whole proceeding as well as from the outcome.
I strongly recommend readers to check out the two Journal of Palestine Studies articles authored by Michael Deutsch & Erica Thompson entitled Secrets and Lies: The U.S. and Israeli Persecution of Muhammad Salah Parts 1 & 2. See
https://www.palestine-studies.org/en/node/42042
https://www.palestine-studies.org/en/node/42077
MM: Could you spell out a little bit more detail around the defendant Mohammed Salah?
MD: He was an American citizen. A grocer in Bridgeport, Illinois. Not a very political activist. But he was reached out to bring some monies to over 400 Palestinians who were deported illegally to Lebanon and who were leaders of Hamas at that time. The Israelis sent them out of the country and made them live in this forest in Lebanon with no resources. Salah was asked to go there to deliver money to those people. This is one of the first things he ever did as an activist. As soon as he reached Israel, he was arrested and tortured for 57 days. And then they put out this thing that he was a military commander of Hamas and that the other defendant, Abdelhaleem Ashqar had run for President of the Palestinian Authority. He was a doctor of business management. He was not an active militant in Hamas. He was maybe associated with Hamas, but he was never involved in any type of illegal activities.
So those were the two defendants they picked out to bring this RICO charge against. I think one of the things that really made this case triable was our ability to talk about the issue of Palestine and really educate the jurors about what these people were trying to do, and what the repression was that they had experienced, and, in fact, that one of them was terribly tortured for 57 days.
At the end of this torture, they put Salah in a cell with Palestinians, who he thought were comrades, but they were what’s called “birds”. This is one of the tactics of the Israelis. These are Palestinians that have become informants for the Israelis, and they got him to admit under threats to give more information about his role in bringing the money to those people who had been deported to Lebanon.
It was an education for the jury that made them refuse to convict Salah on the charge of being a member of a RICO enterprise, a RICO conspiracy, because we told them all about it. We had experts talk about Palestine. They came and testified about the occupation. These were leading experts from Israel and human rights experts. I think that if you have the time and the evidence to educate a jury, you’re going to get, in most cases, a positive result.
Mohammed Salah was convicted of lying in an “interrogatory” where pro-Israel groups had brought a civil lawsuit and he was subpoenaed to testify about violent acts. He was convicted of testifying that he was a member of a mosque in Bridgeport, Illinois but he wasn’t a member of Hamas. Apparently the jury felt that maybe he was a member of Hamas, but he wasn’t part of a RICO conspiracy, so they convicted him of that much lesser charge of lying at a civil interrogatory which is almost never used.
The other defendant, Abdelhaleem Ashqar. was convicted of not testifying in front of a grand jury that was investigating Palestine liberation. This man had been interned for civil contempt of a grand jury in New York, and he spent eight months in prison, and then the judge found that civil contempt could no longer force him, had no effect on his ability to testify and his willingness to testify.
MM: So he was let loose?
MD: And then, sure enough, they subpoenaed Dr. Ashqar again to a grand jury in Chicago, and he refused to testify in front of this grand jury, and they charged him in this indictment with criminal contempt. And that was what he was convicted of, not the Hamas RICO charges, not anything connected with violence, but simply not testifying in front of a grand jury. He was sentenced to 11 years imprisonment. Civil contempt is where you’ll ultimately be forced to testify because you want to get out of jail. If you testify, you get out of jail. But criminal contempt is a crime which has no statutory limit for punishment and could be up to life imprisonment. You can’t get out by testifying, because the violation is refusing to testify.
These were two, very peaceable, educated people. And I think the jury understood that this was unfair overreach. And another interesting point in that trial is, at the time of doing what they were accused of, Hamas was not on a terrorist list, a designated terrorist list. That’s one of the reasons they brought the RICO charge. But they also decided that they couldn’t bring a material support charge at that time, because Hamas was not a designated terrorist organization. Subsequently it was. And so they brought a charge of violating some terrorist law against Mr. Salah. They said he was a military commander of Hamas, and they had an informant, a Palestinian guy that was going to testify about that. And then at the last minute, they withdrew his testimony and they withdrew the charge of material support. They were just left with these` two RICO conspiracy charges against Ashqar and Salah.
MM: But Salah had been imprisoned in Israel for 5 years for bringing the money, right?
MD: Yes, he was. He was tortured, and then they brought him to trial. He was convicted and served five years in prison. Obviously, if he was a terrorist, they would not have given him a five-year sentence. But while his trial was going on, they were putting out propaganda that he was a military commander of Hamas, which was absurd, and they knew it was absurd, and yet that was their justification for torturing him and then imprisoning him. And finally, when he came home, that’s when the US brought this other charge, this RICO charge against him.
JG: Are those guys doing okay now?
MD: Well, Salah died a few years ago from kidney cancer. When he came back, he was picking up people for dialysis and transporting them to hospitals. But he got cancer himself and died three or four years ago. Ashqar is still fighting. They’re trying to deport him to Israel, or even to the Palestinian Authority, and he’s still fighting that because he claims under the Convention against Torture (CAT) that he was likely to be tortured if he was sent back to Israel. He just had a hearing in the DC Court but lost the hearing, and now it’s going to be on appeal. But he’s been out of prison all this time and living with his wife in the DC area, but they’re still wanting to deport him.
MM: Going back to Salah. When he was eventually released by the Israelis, he spent a number of years here before they bought the second case. Right?
MD: That’s when they stuck the informant on him. The informant was at the airport when Salah came home as part of a group to greet him. That’s how they were planning to get him. The informant tried to talk to him about placing bombs in Chicago, at the Federal Building. And in all of this, nothing ever came of it except that they were trying to entice him. This was the US Attorney’s office in Chicago, leading this with the FBI and working very closely with Israeli intelligence.
MM: This is the Jack Mustafa character?
MD: Yes, exactly.
MM: John, do you have anything more to ask?
JG: Yesterday, when Mike and I talked about the Palestine Studies article, I commented that in preparation for this conversation that a lot of the concerns I’d been preoccupied with were what the police and possibly FBI agents do at the level of getting themselves involved in groups, disrupting them, spying on them, setting people up–that kind of stuff. I underestimated the extent to which repression strategies are also grounded inside entities like the US Attorney’s office and the government beyond the police apparatuses. There’s the legal juridical apparatus which also plays an active part.
One other thing. Often times, it appears as if the US is the controlling nation. They’re pulling the strings and Israel does what it’s told. It seems now that the United States was basically at the beck and call of the Israeli Shin Bet and Mossad.
MD: Yes, actually the US Attorney’s office made between 30 and 40 trips to Israel to confer and meet with Israeli security. And they worked together hand in hand. When they came in the courtroom, when they cleared the courtroom, the prosecution table was 2 US Attorneys and 3 Israeli intelligence officers sitting there.
MM: The Shin Bet people they brought over were the guys who had performed “the good cop, bad cop” roles?
MD: These were the interrogators. Yes, these were the interrogators and, of course, a lot of what they did was classified. We had to deal with the Classified Information Protection Act (CIPA), where you don’t get the real testimony. You get a kind of summary of the testimony and the judge has to look at the real testimony and then decide what you can hear and what you can’t hear about the methods that they use. We were not allowed to go into that. It’s very difficult cross examining these guys because a lot of stuff was classified, and we weren’t allowed to get into it.
MM: I also noticed in reading the articles you sent that this Judith Miller person from the Times testified.
MD: Yes. She was brought to the prison to talk to Salah to come back and write an article for The New York Times, saying that he was fine and he wasn’t being ill-treated. She was like someone that was like cleaning up the work of the Israelis. But the jury didn’t buy a lot of it. I’ll tell you. The jury was very good in terms of not accepting all this stuff, and acquitting them of the RICO conspiracy was a big, big move on their part. When we talked to some of them afterwards, they said they didn’t trust the Israelis. They didn’t trust the interrogators and they felt like the case was totally overblown.
MM: Right. What would they have gotten? What would have happened to them if they’d been found guilty?
MD: For a RICO conspiracy, up to 20 years.
MM: Alright. Well, that’s pretty fascinating stuff. We’re going to move on to another topic. Let me just read this to you. It’s our expectation that the authorities will make concerted efforts to distinguish between what we would describe as system-loyal opposition and system-disloyal opposition to justify more severe repressive steps against the latter. Would you agree with that?
MD: Yes, I would agree with that.
JG: Have you seen any evidence of that so far?
MD: Well, I’ve been notified that the Joint Anti-Terrorism Task Force of the FBI has paid some visits to activists in Chicago. And obviously, they’re not going to talk to them. But they are kind of acting around the edges in terms of trying to criminalize this movement. But one of the things that you should understand is that, in 1996, they passed the Anti-Terrorism Act and in that act the US Secretary of State is empowered to designate foreign terrorist organizations (FTOs) and, as of now, they have all the major Palestine resistance groups on that list as specially designated terrorist organizations.
The statute says there are two forms of terrorism. One is terrorism where you provide material support to commit an act of terrorism for a specially designated terrorist organization. I’ll give you the cite. It’s 18, USC. 2339 A. And then there’s 2339 B, which criminalizes providing material support of any kind. It could be writing a hotheaded article, or providing money or transportation, or anything which doesn’t have to be related directly to a terrorist act. But it’s material support for a specially designated terrorist organization, and that’s a very, very broad charge.
This is a charge that they’ve been using against Palestinians and which they could use against Palestinians involved in the present demonstrations that are going on across the country. And they could say that communication with somebody, or providing information or providing any type of material support, not necessarily any terrorist act, but material support is a violation of the Anti-Terrorism Act. So one of the things that I would worry about is those people who are most political and most militant. They’re going to try and say they’re providing material support for designated terrorist organizations. And if anything is under the direction of a one of a group of designated terrorist organizations, especially a terrorist group, or in coordination with a designated terrorist group, that is considered material support.
It could still be considered material support. I have people calling me all the time saying that, “We want to talk to Hamas. We want to put an article about Hamas in our publication.” And they’re worried because Hamas is a specially designated terrorist organization. Putting an article in about Hamas could be considered material support for Hamas, and you could be indicted under that anti-terrorism law. This is a long way of answering that the most militant Palestinian protesters can be easily accused of providing material support for a terrorist organization. Even organizations like the Popular Front for the Liberation of Palestine. They’re on the list. The group in Lebanon, Hezbollah, is on the list.
MM: So if you have any communication with these liberation groups, you’re running the risk of being charged with material support. Right? And it’s your sense that people here, activists here, have some familiarity with that law. Correct?
MD: Yes, oh, very much so very much so. They’re very conscious of the statute and how it’s been used in the past, and from all my consideration, they’re not providing material support to these groups in any way, but it’s easy to manipulate that and to bring that charge. So that was one thing that I would be concerned about in terms of the government going after the most activist and militant people in the in this resistance movement in the US.
MM: I’m going to jump ahead to another question. And that’s about domestic versus international terrorism.
MD: The FBI has a definition of domestic terrorism and I can read that to you if you want but there is no Federal crime statute for domestic terrorism standing alone. There’s not a crime. How then can you be convicted of a crime of domestic terrorism?
A law that passed after the Patriot Act was put into effect, as part of the Patriot Act, basically states that what are called any activities that involve added dangers to human life are in violation of the criminal laws of the US, or any State. Then it adds if they appear to be intentional, or to intimidate or coerce a civilian population, or to influence the policy of a government. And then they say there are certain crimes which they call Federal crimes of terrorism. And then they list Federal crimes of terrorism which are essentially assassination, kidnapping, destruction of aircraft, chemical weapons, nuclear weapons, attacks on Federal facilities, killing of officers and employees of the US, the taking of hostages, violence against mass transit, attacks on Federal facilities. Those are the crimes that are considered acts of domestic terrorism if they’re intended to influence or intimidate or coerce a civilian population, or to influence the policy of a government. But there are no other crimes that are considered part of domestic terrorism. So these are very serious crimes, very intentional crimes, and they’re limited. In other words, protesting or doing civil disobedience, or challenging something of that nature is not a crime of domestic terrorism. There is no crime standing alone of domestic terrorism.
MM: That was our next question. How common is the invocation of domestic terrorism? Let me give you an example. In the last couple of weeks, a City Councilwoman from Queens put forward a proposed bill stating that the blocking of tunnels and bridges, etc., by the pro-Palestinian protesters should be treated as domestic terrorism. It seems to be more prevalent right now that they’re raising that issue.
MD: Yes, they’re using “domestic terrorism”. The definition of domestic terrorism from the FBI is violent, criminal acts committed by individuals or groups to further ideological goals, stemming from domestic influences, such as those of a political, religious, social, racial, or environmental nature. That’s not in the criminal law; that’s not in the Federal law. But this is what the FBI uses to start an investigation or to justify an investigation. But if they’re going to charge somebody with domestic terrorism, they have to show that these are acts of Federal crimes of terrorism that are in those definitions of Federal crimes of terrorism. So that act would not be considered a Federal crime of terrorism. You can call it domestic terrorism, but it’s not really the crime under the Federal law.
Now, also, I should mention there are a lot of state terrorism laws. In fact, I had a trial a couple of years ago of NATO protesters in Chicago. They were charged under an Illinois statute of terrorism. Basically, what the Illinois statute said was that terrorism included any act that is intended to cause or create a risk of death or great bodily harm, the use of violence or threat of violence in pursuit of political objectives, intended to intimidate or coerce a significant portion of the civilian population.
Three activists who came to Chicago to protest the NATO meeting were infiltrated by undercover police. The police were saying, “Let’s go make Molotov Cocktails”, or let’s do that. Well, they never did anything but because the police said they intended to do something, they indicted them under the Illinois law for terrorism. They were acquitted of those terrorism charges. But we’ve always got to be worried about that as well.
I assume that’s what the Queens City Council member is talking about is making it a state law. Right? Well, I don’t know what the New York State law is. I’m not familiar with that, but so far no one’s been charged other than in Illinois, as far as I know, under a State law. But they’re on the books in a lot of different states.
I should mention some other acts that use terrorism as well. Just so we round it all out.
There’s an act called the Animal Enterprise Terrorism Act. Basically, what it says is that terrorism applies to any intentional physical destruction of an animal enterprise, damaging or interfering with the operations of an animal enterprise, or placing this enterprise in fear of injury. I represented people who went into a lab to free rats because the rats were being experimented on. Another guy in Southern Illinois rescued a bunch of minks and was arrested and charged under the Animal Enterprise Terrorism Act.
There’s also seditious conspiracy which we should talk about as well, because it involves a conspiracy. This is what the Puerto Ricans were charged with. And this is basically a conspiracy to oppose by force the government of the US. It’s as simple as that. And that’s a twenty-year sentence.
JG: So, Mike, why don’t we jump then to talking to Michael about the MLN since he brought it up.
MD: The Movimiento de Liberacion Nacional (MLN) was an above-ground, Puerto Rican independence solidarity group. They were very active in in Chicago and New York. But the FALN or Fuerzas Armadas de Liberacion Nacional was a Puerto Rican underground group. It took credit for a lot of bombings, of military places and other things and a lot of similar acts.
Jose Lopez, was the Director of the MLN. His brother, Oscar, was a leader in the FALN. But they never brought any charges against any of the people who were in the MLN. What they did was subpoena some of the leaders of the MLN to a grand jury. They were trying to get information about the activities of the FALN, which maybe some members of the MLN were in touch with, but they never charged anybody with being part of the FALN. They just wanted them to be informants and gather information about the activities of the FALN. The people who were subpoenaed to appear in front of the grand jury refused to cooperate, so they were sent to jail for contempt, first civil contempt, and then ultimately, when they still refused, criminal contempt. That was the way they went after the above-ground group, by using the Federal grand jury to try and turn them.
The FBI raided the MLN’s high school in Chicago and harassed a lot of people. They paid a lot of visits to people in their workplaces and in apartments. The FBI was after them and following them, but they never brought any charges against those people who were in the above-ground Puerto Rican independence movement.
MM: Were they successful in terms of getting people to accept an offer of cooperation?
MD: No one collaborated, and 10 people were imprisoned in Chicago and New York. 3 Mexicano/Chicano activists were also subpoenaed and imprisoned in solidarity with the Puerto Rican independence movement. So, you had people that were in prison but not charged with any type of terrorism act or criminal act
MM: Were they in prison for a long time?
MD: No, as I recall, it was months. Finally, the government realized they couldn’t be coerced. The government could have charged them with criminal contempt. But they didn’t do that. They let them go. They were set free, and they went back about their political work.
The FALN members were arrested on April 4th, I think, in 1980. They arrested a bunch of them, and then, later on, they arrested more of the leadership. The government had a guy who was part of the FALN, which I think came up in your letter, whose name was Alfredo Mendez, who became a cooperator with the FBI and Government, and he testified against them.
There were trials when the FALN was ultimately captured. They had a couple of seditious conspiracy trials, and what they were charged with was opposing the authority of the US over Puerto Rico by force. In the trial as defense counsel we tried to say, “Well, the US Government doesn’t have a legitimate authority over Puerto Rico. It’s a colonial authority, and that shouldn’t be considered.” And in the first trial, the FALN didn’t participate. They refused to recognize the jurisdiction of the court, kind of following the leadership of the original Puerto Rican Nationalists who went to prison in 1954 for attacking the US Congress. Those people had refused to participate in their trials, and they refused to recognize the jurisdiction of the US Court. So these captured FALN people took up that issue as well, and they did not testify at their trial, nor did they participate in the trial.
Subsequently, the leader of the FALN, whose name was Oscar Lopez, was captured. And he decided he was going to represent himself, and he decided he was going to confront this guy, Alfredo Mendez, who was a government witness by then and was testifying against him. In that limited way, he participated in the trial by confronting Mendez, but beyond that he didn’t do anything else. The FALN people got big sentences–55 years and 35 years. They also had state cases where they didn’t participate and got more time there as well. Ultimately, the only way they got out was a clemency by Clinton to let most of them out, and then several others were let out later.
MM: Right? Didn’t Clinton grant some pardons?
MD: Clinton gave them unconditional release because they wouldn’t accept parole or any conditions on their release. So he gave them all an unconditional release and, subsequently, a couple of people who weren’t part of that first group, Oscar Lopez and Carlos Torres, ultimately got parole and they accepted it. This was years later.
MM: Michael, would you categorize that as taking a stand as a prisoner-of-war?
MD: Yeah, I guess so. That that’s what they said. They were prisoners-of-war, and they didn’t intend to recognize the US. We submitted international law pleadings. Because, you know, under international law, you have the right to resist colonialism by any means necessary. And we tried to get the judge to go along with understanding that. But we had two different judges. One was a hanging judge, all the way. He’s the one that gave out the 55-year sentences. And there was another judge who was from the Cape Verde Islands, a judge of African heritage. He was a little more reasonable, although he didn’t allow us to put on our defense in front of a jury The FALN people in front of him got slightly lesser sentences, like 35 years.
JG: Michael, I wonder if we could go in a slightly different direction. You know I mentioned that we had read your article in the Northwestern Law Review about grand juries, and clearly one of the things that you urge people to do when they’re faced with the prospect of a subpoena is not to testify and not fall into the trap or whatever the right words are but to not take the offer, especially when this is presented as: “Look, If you have nothing to hide, why don’t you just testify.” Could you explain a little bit why you would probably still give that advice today to people who are faced with a grand jury subpoena? See https://scholarlycommons.law.nor
MD: Well, it kind of depends on the person and the milieu that they’re involved with. A grand jury can ask you about anything and you don’t have a lawyer in there. So you might think you don’t have any information. But you might really have some information that will tie it to something else that they have, and therefore they want you to cooperate with them.
The ethic of the Puerto Rican Independence movement at that time was non-collaboration with grand juries because grand juries were just a tool of the repression against their activists.
But it depends on the individual. If you have somebody that literally doesn’t have any information at all based on their background and who they are, it’s possible that they could go in there and just say, “You know I don’t know anything, and I don’t have any information,” but it’s a very tricky slope, because you don’t know what they know. And of course, if you lie to a grand jury, that’s perjury, and you could go to prison for 5 or 10 years, depending on the nature of the lies.
JG: So going to go back to the Palestinian solidarity movement. What should groups be doing now to prepare for the possibility of facing repression in the months to come, or perhaps even as we speak? How do you get ready for that?
MD: Well, you have to try and minimize the damage by making people understand that some of these groups could be infiltrated. You have to be wary of that. You also have to understand that, despite what you think, you don’t know if you may have information that is going to be helpful to the FBI. That’s why you’re subpoenaed to the grand jury because they have some kernel of information that they want you to expand on. You should also be wary of people in your group who could be informants. Informants and infiltrators can create some kind of situation when you’ve got somebody saying something like, “Let’s do an action. Let’s do this or that.” And the next thing you know they’re being charged. So activists have to be very wary of their conversations with other people, and not be macho and proclaim: “We’re going to do this, and we’re going do that,” because the person next to them who they think they may know might have been approached by the FBI and threatened. And now they’ve agreed to provide information to the FBI.
You have to be on wary of any type of information sharing with people you don’t know well or trust.
MM: Should groups that have large numbers of non-citizens be doing anything special to decrease the likelihood of deportation?
MD: And yes, you have to be wary of immigration law. It has a definition of terrorist activity which I’ll read to you so you can get a sense of that. Any group that, either directly or through a terrorist group, engages in an activity regardless of whether or not such group is designated as a terrorist organization. This could include pro-democracy groups engaged in armed conflict against oppressive regimes. Those under scrutiny must show by clear and convincing evidence that they did not know such a group did engage in terrorist activities. If the groups are under that definition, then being involved with them, or supplying information to them or supporting them can result in immediate deportation even without a hearing. If Immigration believes you’re involved in terrorist activity, you could be deported by a ruling of a magistrate, or even a special master.
I remember in the letter that you sent me there was worry about mass deportations. But there are not going to be mass deportations. There are going to be individual deportations. But they could take up a massive amount of people who, if they don’t have legal status or their status is in question, are going to be deported. Even Dr. Ashgar (the co-defendant in the Federal Chicago Muhammad Salah RICO conspiracy trial) is still fighting it. Ten years later and they’re still trying to deport him to Israel. The power of the Immigration Service to deport people accused or believed to be active in terrorist activity means that a person can summarily be deported.
One of the things I wanted to mention is the FISA law, which is the Foreign Intelligence Surveillance Act. This allows the Government, without a court order, to gather information against groups that are considered to be involved in terrorist activity. It’s a very broad law which allows for the gathering of this information. Primarily, it is supposed to be against foreign groups. But ultimately, it has been learned that what happens is that when they do this intelligence, they often pull up information about U.S. citizens–their addresses, their workplaces, their bank statements. And so it’s kind of like an end-run, even though they can’t actually be gathering such information.
They often are gathering information about domestic terrorism. FISA’s targets include those who might be dangers to human life in violation of criminal laws, those intending to intimidate or coerce the American population or to influence the policy and effect the conduct of the US Government by such coercion.
And one of the things that FISA allowed was gathering all metadata, which is data about people’s internet activities, telephone activities etc. The gathering of this information, which is digital activity, is held by third parties and at one point they couldn’t even tell the customers that they were gathering their information.
And now FISA has not been reimplemented as of December of this year. The FISA law is not in effect, and they’re trying to get a new FISA law passed, and they can’t get it passed by the House of Representatives for some strange reason.
There was a new law called the US. Freedom Act of 2015, which was passed under Obama. And it supposedly stopped the government from collecting Metadata records. They were just grabbing every all the information they could from Internet servers or telephone servers. So now they have to do individual metadata collecting.
And the other thing that I think you should know about is that the Patriot Act is allowed to get records of digital activity held by third parties. The Patriot Act also allows law enforcement to share information with counterintelligence agents, and vice versa. Before they weren’t able to do that. But the Patriot Act has let them do that, and that is still in effect, as far as I know.
You need to know that there is still a broad capacity for federal intelligence surveillance to gather information and communication from allegedly foreign Intelligence agents. Now, in the course of doing that, they’re connecting information from US citizens which they’re not allowed to do, despite the Obama amendment and thanks to the Patriot Act.
MM: I have another final question here. I’m thinking of what is probably most historically comparable to the situation of the Palestinians here and now. When I think about it, I think about the Iranian students that were here in 1979 and 1980 and were deported and killed by the Khomeini regime. Do you have any comments on that?
MD: Yes, the Iranian students. I represented some of them back when they were all arrested, and that a lot of them were deported.
The thing that troubles me and I’ll repeat what I said earlier is that because all of these Palestinian resistance groups are on the special designated terrorist list, any activity that involves working with those groups in any direct or indirect way criminalizes the person that’s doing it. This makes it very easy to charge people, not only with domestic terrorism, but with material support for international terrorism.
And so that is a troubling thing. Somebody just called me yesterday saying that on NBC News a report is saying that all these people that are in the streets and protesting are working with Hamas and are under Hamas’s direction. That’s just a prelude to criminalizing the protestors as providing material support for terrorism.
I would think that was one of the ways that they would go after Palestinians. I mean, they could go after them, for, you know, blocking the road, and sitting in and doing stuff like that. But those are relatively minor criminal charges.
But if they go after them for providing material support for terrorism because they’re linked in some way to these designated groups, it’s an easier case with much higher stakes.