Policy

ENTRAPMENT AND GOVERNMENTAL OVERREACH (EGO) RELIEF ACT

Liberty today is threatened by political encroachment and governmental overreach, in the name of National Security.  At present there is no codified defense against entrapment, no check on the arbitrary expansion of security laws to include Constitutionally protected activities, and no prohibition against showing secret evidence to judges (but not the defense) in criminal trials. The government uses these legal loopholes to incarcerate political enemies rather than people who actually intended to commit a crime.  Here are two examples: 
 
A mentally challenged young man, Shahawar Matin Siraj, fell under the influence of an older FBI informant who presented himself as Siraj’s best friend and mentor.  The informant showed Siraj pictures of  atrocities committed against Muslims, and after months of inflammatory propaganda pushed Siraj into agreeing to supporting the victims of such atrocities by bombing a New York City subway station.  At the last minute Siraj refused to plant the (fake) FBI bomb because he said that he did not want anyone to get hurt, and because he needed to ask his mother’s permission first.  Nonetheless, he was convicted and sentenced to 30 years in prison.

Patrick Stein believed reports that President Obama was allowing the Muslims to take over America.  He became afraid for his family and expressed on social media and to a militia organization the need to defend America.  The FBI assigned a confidential informant to push Stein and two other men, to see if they could be persuaded to engage in violence against Muslims.  Eventually, after months of trying, the FBI’s confidential informant prodded Stein and two other militia members into agreeing to be part of a (fake) FBI- created bomb attack on a Muslim housing complex in Garden City, Kansas. The three men, comprising the “Kansas bomb plot”, were then convicted of  terrorism related charges. 
 
These are just two of hundreds of stories of people who would never on their own have engaged in violence without being pushed by the FBI into violent plots created by the FBI.  The US Government should not create crime in order to target and entrap its own citizens.  It should not give its citizens a loyalty test regardless of whether the target is on the political right or the political left.  It is the difference between a democracy and a police state.
 
Five officers of the Holy Land Foundation were convicted of material support for terrorism, because their foundation made donations to charities in Palestine.  The charities were not on the terrorist list, and were the same charities used by the US government itself to distribute relief aid in Palestine.  The US prosecutor conceded that none of the Foundation’s money went to support terrorism but claimed that the donations raised the prestige of Hamas, a designated terrorist organization in Palestine, and therefore constituted material support. Two officers were sentenced to 65 years in jail simply for trying to relieve suffering in a war-torn country. 
 
Under this absurdly expansive interpretation of the material support statutes, many people who intended no violence have been targeted by terrorism prosecutions for engaging in normal, constitutionally protected activities like charitable donations, free speech, free association and social hospitality. Even peace advocates have been investigated for terrorism after advising designated terrorist organizations on how to give up terrorism. (See: Holder v. Humanitarian Law Project, 130 SC (2010)). Laws that fail to give notice of what is prohibited are arbitrary traps for decent citizens trying to do what is right.  They’re the difference between the rule of law, and the rule of politicians who decide what is legal after the fact.
 
Yassin Aref, an imam in Albany NY, was convicted in an FBI sting and sentenced to fifteen years, even though the evidence was so tenuous that an appellate court upheld his conviction based only on evidence for which the jury had acquitted him.  All during the trial the prosecution supplied the court with secret evidence which the defense was not allowed to see and which influenced the court to make unfavorable rulings against the defense.  It is now believed that the secret evidence identified Yassin Aref as an Al-Qaeda bomb maker named Mohammed Yassin. (Several years after the trial the real Mohmmed Yassin died in a bomb explosion; Yassin Aref, who remained alive in jail therefore could not possibly have been the supposed bomb maker.  The FBI targeted the wrong man.) But the prosecution refused to admit their mistake and the conviction, based on secret evidence, was allowed to stand.
 
The use of secret evidence in criminal cases is increasingly common and destroys the perception of justice.  It is the difference between constitutionally guaranteed public trials where defendants can confront their accusers and the evidence against them, and star chamber proceedings where outcomes are already determined by the court and prosecutors based on secret gossip and politics.
 
Entrapments, arbitrary interpretations of statutes, and secret evidence, are all devices to convict innocent people for their political beliefs.  They are exploited to create new political prisoners.  The EGO Relief Act limits these abuses by:

1. Codifying (for the first time) an Entrapment defense to limit prosecutions of targets for involvement in crimes initiated and created by the government;
2. Limiting material support to terrorism prosecutions to cases where there is proof that the target intends to support violence;
3. Providing that any classified evidence shown to the judge by the prosecution must also be disclosed to security-cleared defense counsel.

Help pass the EGO Relief Act.  The Constitutional Rights you protect and the political prosecutions you prevent may be your own.

The Entrapment and Governmental Overreach Relief Act (EGO Relief Act) 

EGO Relief Act

If you or your organization is interested in signing on please fill out this form or contact Legislative Director, Sarwat Malik-Hassan at sarwat@civilfreedoms.org for more information.

Our Policy Recommendations for Ending the War on Terror

After the chapters of the  Terror Trap were assembled, the editors created panels of experts to discuss the report , and make recommendations on what must be done—by congress, lawyers and the legal profession, civic organizations, the media, and mosques and muslim communities—to repair the damage that has been done in the War on terror and prevent a recurrence. Their recommendations are as follows:

Recommendations to Congress

Since 9/11, the US government has created its own vast network of laws and agencies to root out non-existent terrorist networks. Finding none, the government has used this enforcement infrastructure to instead create terrorists from innocent Muslims to justify more repression. The Terror Trap Report now recommends that this infrastructure be repealed and dismantled.

1. End Preemptive Prosecution, Terrorism Enhancements, CMUs and Unreasonable Limitations on Habeas Corpus

After 9/11, the FBI targeted the Muslim community with a new edition of COINTELPRO, preemptively prosecuting hundreds of innocent muslims. In the absence of any real terrorists hiding in America, these manufactured terrorists helped the government generate Islamophobia, scaring the public and building support for repression at home and abroad.     

To help end preemptive prosecutions, CCF has proposed the Entrapment and Governmental Overreach Relief Act (EGO Relief Act) to close three of the loopholes which the FBI unfairly exploits to prosecute Muslims preemptively. (1) The act proposes a new statutory entrapment defense, which would require that the target must have already taken substantial steps toward engaging in the criminal activity before the government can attempt to induce the target to commit the particular crime. This would ensure that the criminal intent originates with the defendant and not the government. (2) The act also proposes that in order to convict someone of material support for terrorism, the prosecution should have the burden of proving that the target intended to support violence or terrorism. (3) Finally, the act would require that any classified information given to a judge in the case, must be shared with security cleared defense counsel, to prevent false or prejudicial classified information from poisoning the judge’s mind without the defense’s knowledge. We recommend passage of the EGO Act.     

To add to the unfairness of preemptive prosecutions, terrorism enhancements, created by the Federal sentencing commission, are often added to increase an average terrorism sentence by 3 to 4 times the normal sentence, even in entrapments where nobody was injured or even in danger. A terrorism enhancement is not needed because terrorism crimes already carry with them an elevated sentencing range appropriate for such crimes. We recommend ending terrorism enhancements.     

To further add to the unfairness of preemptive prosecutions, Muslims convicted in preemptive prosecutions are often forced to serve their enhanced sentences in a Communication Management Unit (CMU), which are very harsh mostly Muslim prisons that severely restrict the prisoner’s rights to communicate with the outside world. Since most of the Muslim prisoners there are not real terrorists, the prisons serve no purpose except to further traumatize innocent prisoners and stigmatize the Muslim community. We recommend abolishing the CMUs.   

In addition, the 1996 Anti-Terrorism and Effective Death Penalty Act (ATEDPA) needs to be repealed or reformed to prevent convicted prisoners (often Muslim) from being denied an opportunity to prove their innocence by unreasonably limiting Habeas Corpus challenges to convictions. There is no valid reason for limiting Habeas Corpus. Why should evidence that a convicted person is innocent ever be blocked by arbitrary deadlines that elevate finality over justice? We recommend reform of the Effective Death Penalty Act.

 

2. End Secret Surveillance Without Probable Cause, Especially When Discriminatorily Directed at Muslims

The PATRIOT Act, passed immediately after 9/11, created a secret surveillance state, giving the US government vast powers to secretly obtain personal information on Americans without a warrant based on probable cause, as required by the Fourth Amendment. After two decades of intense surveillance of Muslim communities failed to identify any significant terrorism networks, it is time to end the discriminatory surveillance of the Muslim community which was not imposed on any other group to the same extent.        

Since 9/11, the PATRIOT Act has been amended on a number of occasions and the extent of surveillance now permitted is in debate. However, the Constitution still requires that all governmental “searches” for information about individuals must be based on judicial warrants, issued on probable cause, as required by the Fourth Amendment. We recommend that congress (1) repeal the PATRIOT Act (2) require  judicial warrants based on probable cause for all surveillance, and search and seizure of personal information and (3) end disproportionate surveillance targeted at Muslim communities.  

 

3. End Programs that Stereotype the Muslim Community as Terrorist such as Countering Violent Extremism (CVE), Fusion Centers and Joint Terrorism Task Forces (JTTF)    

The government supports CVE programs that supposedly identify and counter violent extremism. These programs target Muslims while ignoring the violence on the radical right. Since there are virtually no real terrorists in the US, these CVE programs are a waste, serving only to stigmatize Muslims as terrorists, and forcing participating Muslim organizations to inform on their own members identified as prone to future radicalization. These CVE programs are frauds based on junk science. No program can accurately identify who might become a violent extremist in the future. We recommend ending CVE programs.     

Fusion centers supposedly share and analyze intelligence about terrorism and security threats between the federal government, state, and local law enforcement agencies. They are criticized as having historically contributed virtually nothing to national security, because real terrorists in the US are essentially non-existent and the few real terrorists able to strike in America were not identified by the fusion centers. They have also been criticized for violating the civil rights of peaceful protesters and immigrants, and for issuing unfounded and often nonsensical terrorism warnings. We recommend closing Fusion centers.     

Under the direction of the FBI, JTTFs were expanded after 9/11 to essentially deputize local law enforcement officials to conduct quick investigations and response to terrorist threats identified by fusion centers. In practice, without any real terrorist threats to investigate, the JTTF has focused more on creating the illusion that the Muslim community harbors terrorists - for example by staging theatrical arrests in entrapment cases for the evening news - holding terrorized Muslim families at gunpoint, or dropping commandos down from helicopters. JTTF officials who knew better, routinely lied and said that these theatrical arrests in entrapment cases were genuine captures of hard-core terrorists. Their lies suggest that the JTTF’s real goal is to scare the public to justify more funding for themselves. Many communities refuse to cooperate with JTTF. We recommend ending JTTF.     

 

4. End No-Fly Lists and Watch Lists Based on Secret Evidence     

The “No Fly” list and other watch lists allow the Us government to indefinitely restrict the rights of Americans to such basic necessities as air travel, based on secret evidence, without any due process for being added to or removed from the list. This power is frequently abused, for example, by placing persons on the list to coerce their agreement to spy for the government as found by a recent supreme court case,Tanvir v. Tanzin, [592 Us __ (2020)]. If individuals are a danger to aviation, they should be charged with a crime, and if they are not a danger they should not be listed. At the very least, individuals on these lists should be given a clear way to be taken off of the list with an open due process hearing, free of secret evidence that cannot be rebutted because it is secret. Depriving people of their rights by secret evidence is always wrong. End secret no-fly and watch lists.     

 

5. End Torture and Other Illegal Methods of Coercing Information From Suspects; Release the Senate Report and Hold Torturers Accountable     

In response to 9/11, senior US government officials decided to use torture to obtain information about terrorist plans, even though torture was illegal and ineffective at obtaining truthful information. This illegal decision - one of the dumbest governmental decisions ever made - traumatized thousands of prisoners, obtained little or no useful information, and destroyed America's reputation in the world community as a humane and law-abiding nation. 

On December 13, 2012, the US Senate completed a detailed report of over 6,000 pages about the torture program, but the report was suppressed. Two years later a 525-page executive summary was released, but without the detail necessary to hold torturers accountable. America’s reputation as a moral and principled country can never be restored until the full senate torture report is released, and the architects of torture have been delt with according to law. We recommend using the UN as a neutral tribunal to judge the culpability of the US government and its agents. We recommend releasing the torture report and ensuring accountability.     

 

6. End Military Commissions and Close Guantanamo     

To cover up its crimes of torture, the American government placed prisoners from the War on Terror in Guantanamo Bay prison – supposedly a completely lawless place that is outside the jurisdiction of the US, and where they would be at the total mercy of torture officials. Defendants were to be tried by military commissions, which supposedly would tolerate tortured confessions and severely restrict the rights of the defendants.    

The commissions system was so bad, so illegal, so immoral that, in two decades, no military commission trials have been completed. In fact, some 80% of the detainees at Guantanamo were eventually found to be completely innocent without ever being subjected to military commissions, and sent home. It is unlikely that the remaining prisoners will ever be tried because of fears that even the most restrictive of Guantanamo trials might expose the identity of the torturers. The notion that prisoners will be imprisoned forever without a trial or even charges, out of fear that a trial would expose their torturers, is grotesque. We support the demands of the remaining Guantanamo detainees for prompt trials in regular civilian courts, or release under humane conditions which causes no further harm. We recommend closing Guantanamo, and dealing fairly and lawfully with the remaining prisoners.

    

7. Revoke the 2001 Authorization For Use of Force (AUOF) For al-Qaeda. Pass Senate Bill #2391 – The NationaL Security Powers Act ; End Drone Wars and Assassinations.

The 2001 AUOF against al-Qaeda for 9/11 is our only congressional authorization for military intervention in the Middle East. Two decades later, Bin Laden is dead, al-Qaeda is in disarray, the US-imposed Afghan government has collapsed to the Taliban, and the Middle East has dramatically changed. If military intervention is now needed in the Middle East (or anywhere else), it should be considered by Congress on its own merits; not shoe-stringed on a 20-year-old congressional authorization responding to a 9/11 event that no longer applies. The recently introduced National Security Powers Act (Senate Bill number 2391), seeks to repeal the 2001 AUOF and establish limits to Congress’s future authorization of use of force. We recommend congress repeal the AUOF, and limit future military authorizations.     

In addition, the US War on Terror abroad generated huge numbers of innocent civilian and non-combatant casualties, often resembling a reign of terror more than a legitimate military presence. Civilian and non-combatant deaths are morally wrong, and like torture, they poison the civilian population’s relationship with the occupiers. The indifference shown by the US military to Afghan civilian casualties during two decades of war may explain why the population surrendered so quickly to the Taliban after the US left. We recommend Congress impose restrictions on the military to limit civilian deaths.     

Moreover, drone warfare was used to assassinate non-combatant civilians based on often faulty guess work as to their identity. It was also used to assassinate American citizens like Anwar al-Awlaki and his son Abdulrahman without any due process. Like torture, these excesses demonstrate a lawless cruelty and racist indifference to human life that shocks the conscience. We recommend congress end drone assassinations.     

 

8. Reform the Department of Justice (DOJ) to Prevent Unethical Preemptive Prosecutions in the Future     

The DOJ has prosecuted preemptive prosecution cases against the Muslim community for nearly two decades, pretending they were genuine terrorist cases and playing them for their political value in stigmatizing the Muslim community as terrorists. Lawyers in the Justice Department have an ethical duty to do justice, present the truth, and not discriminate against any defendant based on religion or ethnicity. Yet their preemptive prosecutions of Muslims continued the DOJ’s racist history of wrongfully detaining thousands of Japanese-American citizens during World War II and targeting Black citizens during COINTELPRO. DOJ lawyers have an ethical duty to resist politician’s demands for political prisoners based on pretext or manufactured evidence.

Agencies within the DOJ responsible for ethical conduct – the Office of Legal Counsel, and the Inspector General’s office - have failed to provide oversight and accountability, allowing federal prosecutors to commit misconduct with impunity. Moreover, old cases of obvious injustice continue to go uncorrected because the DOJ would rather see innocent defendants remain in jail than admit the DOJ was wrong. To correct these abuses, we recommend that congress:    

1. Reform the Attorney General’s guidelines to require that the FBI may open cases based only on probable cause to believe that a crime has, or is about to be, committed, rather than using religion, ethnicity, race and politics, as a basis for opening investigations.
2. Establish an independent commission on prosecutorial conduct, outside the control of the DOJ, to discipline prosecutors who do not follow ethical guidelines.
3. Establish an independent conviction review unit within the DOJ to review cases which raise significant issues as to the validity of the conviction or sentence.
    

9. Establish a Balanced Independent Commission to Assess the 20-Year Impact of the War on Terror           

It  is widely understood that the War on Terror has been a disastrous failure. It failed primarily because it was a power grab based on lies and myths about terrorism and Islam, and shielded from transparency and congressional oversight. The public was forced to listen to whistleblowers and prisoners of conscience like Edward Snowden, Reality Winner, Chelsea Manning, Daniel Hale, Terry Albury, and Julian Assange to learn the truth. These whistleblowers must be pardoned, and congress must hold hearings to determine what went wrong, and to pass laws to avoid these mistakes from ever happening again.

It is absolutely necessary for Congress to hold hearings on the conduct of the War on Terror, and listen to truthful accounts of what damage has been done to Muslim communities, to the world, and to the laws that should protect us all. Then Congress can finally end this nightmare. The War on Terror was created by acts of Congress, and the War will not end until Congress repeals the very congressional acts that created it.  

 

Recommendations to Other Groups

While Congress has the principal responsibility of ending the War on Terror, the Terror Trap study recommends that other groups also have responsibility to pressure Congress into acting, and in the meantime to protect the world from

the harm that is being done by the irresponsible conduct of the War on Terror. These groups include the following:    

Lawyers and the Legal profession     

Lawyers have a special responsibility to ensure that Congress passes the legislation recommended above to end the War on Terror. Through bar and other legal associations, lawyers must draft statutory language, lobby congress and advocate for the legislative changes recommended, such as the EGO act. Lawyers should also study other areas of potential governmental abuse such as immigration, deportations, conditions of confinement problems, special administrative measures (SAMS), the lack of transparency in FBI law enforcement and national security investigations, and the failure of the government to follow its own laws, with the intent of drafting and passing legislation to correct these abuses.   

In addition, the legal profession as a whole must recognize that national security litigation often lacks adequate resources to provide a defense to those wrongfully charged. These inadequate resources include the lack of expert defense witnesses, translation services, cultural understanding of the context in which the cases arise, as well as the inability to discover secret or classified materials. Resource centers need to be created to assist defense lawyers. new defense lawyers should have opportunities to be mentored in national security cases by more experienced lawyers. More attention needs to be paid to the overlap between mental health and national security cases, with adequate psychiatric resources being made available to address these issues.     

Bar associations and the legal profession as a whole need to study what went wrong in the War on Terror, and correct it for the future. Past injustices to prisoners must be addressed through reparations, treaty transfer, pardons and other remedies to release wrongfully convicted defendants from jail. Institutions must be created to ensure that islamophobia and other forms of hatred directed at particular groups will be effectively countered in the future, especially when coming from within the government. Victims of Islamophobia in the future must be adequately resourced and represented by defense counsel, who in turn are adequately resourced and trained. Lawyers should volunteer their services pro bono to advise mosque members of their rights when the FBI engages in predatory investigations.

Civic Organizations, Media, and Communities     

For civic organizations: Muslim and Non-Muslim organizations need to partner together to share resources and experience about the War on Terror and Islamophobia to avoid a repeat of the injustices of the past and present. These organizations should hold periodic joint conferences on political prisoners— how they can be freed and how we can avoid incarcerating more—so the pain is shared and understood. Communities should establish red lines on inappropriate governmental behavior (such as mass surveillance, CVE programs, or other stigmatizing programs described above), so that if these red lines are crossed in the future, it will trigger a massive response to the government’s policies. We also recommend that organizations create independent databases and sources of information to check government lies and misinformation.     

Engage the media: Build independent narratives to counter the dominant mainstream media. Hold conferences and meetings with reporters to correct misinformation especially on so-called terror cases. For Muslim 

 

Related Legislation and Policy

The Federal Prison Oversight Act of 2022. (FPOA); HR-9009; S-4988

Introduced September 2022, the Federal Prison Oversight Act (FPOA) would create an inspections regime within the Department of Justice’s Office of Inspector General (OIG) to conduct periodic, risk-based, comprehensive inspections of all Bureau of Prisons (BOP) facilities. The bill would also task the Attorney General with creating an Ombudsman within the Department of Justice to conduct targeted investigations of complaints regarding the wellbeing of incarcerated individuals and BOP staff and contractors through unannounced prison visits, and confidential conversations with the affected parties. CCF’s endorsement of the FPOA is premised on the assertion that having third-party oversight of prisons will generate an avenue for enforcing basic human rights and holding prison officials accountable for wrong-doing, thus reducing the widespread abuse of incarcerated people. While abusive conditions are a major obstacle for all prisoners, prisoners labeled as “Terrorist” tend to face harsher and more frequent abuse from ex-military prison staff, who constitute an overwhelming majority of BOP personnel. The FPOA is sponsored by: Ostoff (D, GA), Braun (R, IN), and Durbam (D, IL) in the Senate and McBath (D, GA), Armstrong (R, ND) and Bonamici (D, Or) in the House.

Take action! Support this bill and help make prisons more transparent and accountable → here

You can read Families Against Mandatory Minimums’s detailed summary of the Federal Prison Oversight Act → here.