1960s Terrorist - Hyperbolic Arguments

Weather Underground and Other 60s Radical Groups - History - Excerpt 2 from Law Review Book

To be fair, few modern critics suggest that the United States should ignore the threat of international terrorism. They instead focus on the means with which U.S. prosecutors and agents are trying to achieve their new public safety mandate. Like their predecessors of the earlier era, the critics sometimes rely on odd constitutional arguments that courts have no trouble rejecting.

These arguments represent the easy lessons of history, in terms of how American courts view political violence. The American judiciary has never accepted the argument that the act of killing innocent people is protected by the U.S. Constitution.

Hyperbolic arguments about the constitutionality of the U.S. government’s counter-terrorism efforts are nothing new. They were voiced several decades ago, and are eerily similar in substance to complaints voiced more recently by international terrorists and their attorneys. Consider the case of Laura Whitehorn, Timothy Blunk, Alan Berkman, Susan Rosenberg, Marilyn Buck, Linda Evans, and Elizabeth Duke—members of the so-called Armed Resistance Unit.13 Twenty years ago, they were charged with a plot to bomb several federal buildings and military installations within the United States.14 In their motion to dismiss, they advanced some strange arguments.

They claimed that the indictment should be dismissed because it was brought to harass and punish them for the exercise of their First Amendment rights, and because the United States was guilty of “war crimes” in Nicaragua, Grenada, Puerto Rico, South Africa, Israel, Lebanon, and several other countries, as well as against American Indians. They claimed the word “violent” within the indictment should be stricken because it was unduly prejudicial. They objected to references in the judicial proceedings to “terrorism,” including the FBI agents’ statements that they are members of the “Joint Terrorist Task Force,” claiming that the terms were unduly provocative. They argued that the courtroom security measures, if maintained during the trial, would deny them their constitutional right to a fair trial. They maintained that they could not be convicted because no one was killed or injured in the bombings they planned, and that the object of the alleged conspiracy was largely legal and protected associational activity.

>>This claim—that they are being prosecuted and punished for their political beliefs and activities—runs like a bright thread through almost all of the defendants’ motions and supporting papers. None of those assertions, no matter how often repeated, can obscure the fact, however, that the defendants are being prosecuted for bombing the United States Capitol, the National War College Building at Fort McNair, the Computer Center at the Washington Navy Yard, and the Officer’s Club at the Washington Navy Yard, or that the conspiracy count further alleges that they also bombed the Federal Building on Staten Island, the South African Consulate, the Israeli Aircraft Industries Building, and the Patrolmen’s Benevolent Association Building, all in New York.

None of these acts falls into the category of “beliefs” or “political activities.”

Bombings are violent acts, and defendants have no immunity from prosecution for such acts merely because they also hold protected beliefs or, for that matter, because they hold beliefs that may be abhorrent to the government and to many citizens. This proposition can easily be tested. Suppose that one of these particular defendants had been arrested in the act of selling illegal drugs or of robbing a liquor store.

Could it reasonably be maintained that he could not legally be prosecuted by the government for these offenses on the basis that he is not popular with that government? Of course not.

Prosecutorial vindictiveness cannot be inferred from the fact that the prosecutors are determined to bring to justice those who, they have reasonable cause to believe, have engaged in a series of bombings.

Prosecutors are presumably equally determined—and properly so—to bring to justice other individuals who commit other serious crimes. Prosecutors are expected to be unsympathetic to lawbreakers, as are most lawabiding citizens.15<<

Years later, when the United States faced a more modern brand of terrorist, some of these same arguments were revived.

A blind Egyptian cleric, Sheik Abdul Rahman, was the leader of a group of persons who were ultimately convicted in October 1995 in New York of seditious conspiracy and other offenses arising out of a wide-ranging plot to conduct a campaign of urban terrorism in the United States.16 Included in the charges were plots to kill Egyptian President Hosni Mubarak, to provide assistance to the February 1993 World Trade Center attack, and to orchestrate a series of simultaneous attacks on such New York area landmarks as the United Nations’ Building, the Federal Building, and the Lincoln and Holland Tunnels.17

Rahman’s lawyers unsuccessfully argued that the indictment should be dismissed on the grounds that it was based on nothing more than his expression of political views and his performance of pastoral functions, and that it charged him with conduct protected by the First Amendment. Judge Mukasey’s response to this argument, like Judge Greene’s from years earlier, was brief:

what crimes the indictment charges, what acts may constitute commission of such crimes, and what evidence may show that such acts occurred. The indictment charges in Count One that Rahman conspired to levy a war of urban terrorism against the United States, in Count Two that he conspired to murder a foreign official, in Count Three that he conspired to bomb buildings and other structures, and in Count Seven that he used or carried destructive devices during and in relation to violent crimes or aided and abetted (including counseled or commanded) others in doing so. To be sure, those crimes, like most others, may have a component of speech in the course of their commission. Indeed, it is the rare offense, particularly the rare conspiracy or aiding and abetting offense, that is committed entirely in pantomime. However, that speech—even speech that includes reference to religion—may play a part in the commission of a crime does not insulate such crime from prosecution. . . .

. . . [I]t is both possible and permissible to charge that criminal statutes were violated entirely by means of speech.

Further, that speech may sound constitutionally protected does not mean that it is, if that speech was intended and likely to generate imminent criminal action by others. Finally, even speech protected by the First Amendment may be received as evidence that conduct not so protected is afoot. For the above reasons, Rahman’s motion to dismiss must be denied.18<<

Thankfully, most reasonable people agree that plots to destroy critical U.S. infrastructure and to kill innocent people in the name of some twisted political agenda cannot be defended on the basis of one’s First Amendment rights, and the mere fact that the violent 1960s radicals unsuccessfully advanced arguments similar to those made more recently by the international terrorists does not place them in the same category. Nor does the similarity of these arguments reflect on the constitutionality or advisability of U.S. counter-terrorism efforts from either era. The historical happenstance of two different groups of violent people, decades apart, advancing the same type of arguments in an attempt to exonerate themselves from serious criminal charges hardly means that these people were connected, nor that they shared the same goals or the same level of criminal culpability. At most, it shows that desperate people try desperate arguments. It also may reflect merely that the defendants in each of these cases were represented by the same type of American defense lawyer.19

As noted, these odd constitutional arguments make for easy decisions by the courts, and the lessons from these cases are not significant, other than those rare situations when someone claims that murder is constitutionally protected. The greater insight comes from the opinions that reflect more mainstream and historically sound arguments. It is these cases—particularly where the courts ruled against the government—that illustrate how judges over the past several decades have resolved arguments similar to those being advanced today, and whether modern federal law-enforcement is ignoring or absorbing these rulings as they plan their counter-terrorism operations. Today’s counter-terrorism warriors should welcome this examination.

13. United States v. Whitehorn, 710 F. Supp. 803 (D.D.C. 1989), rev’d, United States v. Rosenberg, 888 F.2d 1406 (D.C. Cir. 1989).

14. See id. at 807–26 (discussing the facts of the case).

15. Id. at 811 (citation omitted).

16. United States v. Rahman, 1994 WL 388927 (S.D.N.Y. Jul. 22, 1994). See id. at *1– *4 for a discussion of the facts of the case that follow.

17. Id. at *2–*4.

18. Id. at *1–*2.

19. The late William Kunstler, who represented one of Sheik Rahman’s codefendants, argued that Judge Mukasey should be recused from the Sheik Rahman case because he was Jewish and therefore a Zionist and thus was unable to be objective. United States v. El-Gabrowny, 844 F. Supp. 955, 957 (S.D.N.Y. 1994).

Post 1

http://www.freerepublic.com/focus/chat/2099535/posts
The 1960s Terrorist Threat

Post 2

http://www.freerepublic.com/focus/f-chat/2099546/posts
1960s Terrorist - Hyperbolic Arguments

Post 3

http://www.freerepublic.com/focus/f-chat/2099571/posts
The U.S. Courts and 1960s Terrorism

Calpernia has 3 threads on terror, that give a background on the Weathermen and therefore connect to Obama.
granny

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