SEARCHING FOR JUSTICE Elaine Cassel
PAINTBALL IS NOT A CRIME ! OR IS IT ??
Is Playing Paintball and Firing Legal Guns Terrorism?
Three Disturbing Convictions Strongly Suggest
Discrimination Against Muslim Americans
by ELAINE CASSEL This text is from
Mar. 25, 2004
On March 5, in federal district court in Alexandria, Virginia,
Judge Leonie Brinkema delivered her verdict in the case of three
American citizens -- Masoud Khan, 32, Seifullah Chapman, 31, and
Hammad Abdur-Raheem, 35 -- who were charged with participating
in a conspiracy to aid and abet terrorism. (The three had waived
their right to a jury trial.)
Brinkema found the three men guilty. As a result of the finding
of being labeled "terrorists," the men now face prison terms of
fifty to one hundred years. Yet plainly, these men are no terrorists,
as I will explain below. Instead, defense attorneys have made a
convincing case that the men were indicted and convicted primarily
because they are Muslims.
Even the Government Did Not Initially See This as a Terrorism Case.
You need not take my word for the fact that these men weren't
terrorists. Take the government's word, instead. According to a
report in a June 28, 2003 Washington Post article, Michael E. Rolince,
in charge of the Washington FBI field office, conceded that the
government had no evidence of specific plots against U.S. targets at
home or abroad. "A lot of this is about preemption," he said.
A lot? How about the entire case? And since when is "preemptive"
prosecution constitutional? Apparently, when you are a Muslim in
The government did not initially charge these men with terrorism.
Instead, the government charged the three men, along with eight others,
with conspiracy to violate the Neutrality Acts -- obscure, longstanding,
yet rarely-enforced laws that make it a crime for Americans to attack
countries with which the United States itself is at peace. The basis for
these charges was that all eleven men were, in the past, supporters of
Lashkar-i-Taiba -- an Islamic group that would like to oust India from
Kashmir, and that has been accused by India of mass killings of Sikhs,
and of partial responsibility for a December 2001 attack on India's Parliament.
Ex Post Facto "Law"
In late 2001, the U.S. declared Lashkar-i-Taiba a terrorist organization.
However, at the time the eleven men were alleged to have plotted to support
the group, the organization was not yet on the list. Nor did the men
"attack" anyone, or any country -- as the Neutrality Act requires. Instead,
prosecutors alleged that they played paintball, and fired legally owned
firearms in the Virginia countryside, in order to prepare to someday help
Lashkar-i-Taiba if necessary. (Two of the men also admitted to being in a
training camp in Pakistan, and one of said he helped to recruit others to
join in support of Lashkar-i-Taiba. But again, these activities preceded
Lashkar-i-Taiba's designation as a terrorist organization).
[Pakistanis today a ally of the United States.]
Prosecutors called these activities "paramilitary training" and "preparation
for violent jihad" -- although both playing paintball and firing a gun are
perfectly legal in Virginia. To shoehorn these facts into a Neutrality
Act prosecution, the prosecution also had to insinuate that this "training,"
alone, was in effect an attack on India. Indeed, the government's whole case
was based on speculation that these men might someday go to fight on the side
of Pakistan -- ironically, an American ally. That's a far cry from actually
going right now to fight for a U.S. foe -- the kind of conduct the Neutrality
Act seeks to punish.
Plainly, the Neutrality Act charges were not strong. After all, the Neutrality
Act generally allows prosecutions of Americans who go to war to fight against
American allies -- not Virginians who play paintball and politics in their own
backyards, imagining they may someday aid a political organization that they support.
Coercive Plea Bargaining Tactics
Perhaps realizing the weakness of the Neutrality Act charges, the government offered
three-to-eleven-year sentences to the 11 men, if they would plead guilty. Of course,
these are hardly the harsh sentence we would expect the Bush Administration to mete
out to true terrorists.
Unsurprisingly, four of the 11 pled guilty early on. Even innocent persons may
rationally choose a three-year prison term over the chance of a 50-year sentence.
And Muslims, after September 11, may have seen a 50-year sentence as a certainty.
The remaining seven men were then the subjects of superseding indictments in which
new charges of conspiracy to aid and abet terrorism were added. And this was not
terrorism by Lashkar-i-Taiba, but terrorism by the Taliban and Al Qaeda.
Such charges, of course, made it even less likely that the seven men could receive
a fair trial -- especially in the conservative Eastern District of Virginia. So,
not surprisingly, two more men -- including the two who actually went to the training
camp -- pled guilty shortly after the superseding indictments were handed down. For
their cooperation, they too received promises of sentences of 3 to 11 years.
That left five men. Charges against two were completely dropped. Three insisted on
going to trial -- the three that were just convicted by Judge Brinkema.
Why did these three Americans insist on going to trial? My guess is that they were
innocent. Why else would they fight what they knew to be an uphill battle, at great
risk, rather than accept a few-year plea bargain, as others in a similar situation
Consider the following hypotheticals: Would Irish Americans who played paintball and
played with guns in order to support the IRA have been similarly treated?
What about Jewish Americans who played paintball and engaged in target practice to
train to support the Israeli army's actions in the Palestinian territories? And
even if these Irish and Jewish Americans were charged, would anyone possibly suggest
that they were terrorists who might someday attack the United States as well? Judge
Brinkema suggested exactly this with respect to the three Muslim American defendants.
She said she believed that those convicted might someday take up arms against the
Yet the defendants' only proven animosity--if any -- was toward India, over its actions
in Kashmir. There was no evidence to support the claim that they had any political
animosity toward the U.S. -- let alone that they would ever violently attack their own country.
Tainted Sources of Evidence
The evidence against the three men came from three basic sources, all of which are troubling.
* One source was the testimony of their co-defendants who had pled guilty in exchange for
light sentences, based on their willingness to give this very testimony. Again, these
co-defendants had been under tremendous pressure to take these plea bargains, regardless of
their own guilt or innocence -- and to testify in support of the government, regardless of
the guilt or innocence of the men they were testifying against. Can testimony be truly
credible when it is given in exchange for freedom?
* Another source was the three men's political beliefs: They thought India ought to get out of
Kashmir, and said as much. But of course, that was their right, as Americans protected by the
First Amendment's free speech clause.
* Another source was the three men's place of worship. They attended a Virginia mosque in which
the Kashmir issue was discussed, and India's actions criticized. But of course, that was their
right, as Americans protected by the First Amendment's free exercise clause.
Three tainted sources of evidence led to three convictions.
Target: Guilty by Religion
Obviously, the government does not -- and cannot -- prosecute every supporter of a cause of which
it does not approve. But Muslims today are easy targets. The evidence suggests that these
prosecutions and convictions were motivated by discrimination and a desire to send a message to
Muslims, not out of concern for national security or justice.
The evidence also suggests that the three men who exercised their right to a trial will serve long
prison terms--what in effect will be life sentences--not for their actions, but rather for their
insistence on exercising that constitutional rights.
The prosecutorial strategy of "Plead guilty or be labeled a terrorist" is coercive, and wrong for
our government to employ in any case, terrorism or no terrorism.
Elaine Cassel practices law in Virginia and Washington, D.C. and teaches law and psychology.
She also runs the website Civil Liberties Watch. Her book, The War on Civil Liberties: How Bush and
Ashcroft Have Dismantled the Bill of Rights, will be published by Lawrence Hill this summer.
2015-08-08 Sat 18:01:18 ct