Litigating terrorism, to what end?

Legal definitions and constructs around terrorism are tenuous and do not hold culpable all those that provoke terror.

    Litigating terrorism, to what end?
    To argue that this colonising enterprise is exclusive to settlers (as a recent Palestinian lawsuit is doing) necessitates a divorce not only from history, but present-day reality, argues Charlotte Silver [AFP]

    News that a small group of Palestinians filed a complaint in a US district court against five US-based Zionist groups for funding allegedly terrorist actions by settlers in the West Bank, has been welcomed with largely unmitigated glee.

    Some celebrate the case because they have long been irked that American-Zionist organisations - bestowed with the privileged and normally hard-won status of a 501(c)3 - have masqueraded as charitable groups, when in truth their activities support an agenda that is both colonial and militaristic.

    Others have cheered the suit because it appears to reverse the traditional application of the "material support" law of the Anti-Terrorism Act, which has laid waste the lives of scores of Muslim and Palestinian-Americans (and non-Americans) for the dubious allegation of supporting "terrorism".

    The case is based on the material support statute, which has created a population of derivative terrorists - that is, people or entities linked in any way to a designated foreign terrorist organisation - that may be held liable and prosecuted in a US court for terrorism.  In Congress' zeal to cut off any sources of support for "terrorism", it equipped citizens with the ability to sue for such transgressions (ie support for an FTO) in US courts under Statute 2333. The current lawsuit against American-Zionist organisations would thus expand that population.

    Eric Lewis, an attorney who has defended alleged terrorists as well as those accused of providing material support to terrorism, emphasises that the suit against Zionist charities presents an opportunity to balance the application of the law. In an email interview with me, Lewis wrote:

    "In the recent 9/11 cases, the Second Circuit held that there is no customary international law consensus on terrorism. If that is the case, then we should not be in the business of picking sides. And if the cases are to go forward then the definition of terrorism should be applied literally and neutrally. Under the 2333 definition, both settler charities and charities that support families of those who die in the territories are both covered in my view."

    But let's be clear, when adjudicating tort claims related to the "Arab-Israeli conflict", US courts have been as neutral as the US State Department has been while serving as a "broker of peace".

    Writing in 2009, adjunct law professor Noura Erakat describes the "interlocking" of the political and judicial branches and lays bare the history of the courts' prejudiced rulings when litigating the "Arab-Israeli conflict".

    As Erakat details, the crux of Israel's indemnity from prosecution under the Alien Tort Claims Act (ATCA) has been that any alleged violation of the "law of nations" by an Israeli actor was deflected and defended as an act of the Israeli State. According to the Foreign Sovereign Immunities Act (FSIA), the ATCA cannot be levelled against a sovereign nation. Erakat demonstrates that in cases unrelated to the Arab-Israeli conflict, the court has proven itself capable of discerning when an action by a state entity falls beyond protection of the FSIA, ie, when the act is inconsistent with a state's own laws.

    Head to Head - Israeli settlers: Patriots or invaders?

    However, in the couple of instances in which the actions of the Israeli military were brought before a US judge - a targeted killing in Gaza in 2002 and the massacre in Qana, Lebanon during Israel's 1996 "Grapes of Wrath" military operation - the court abdicated its jurisdiction, citing the FSIA.

    So in an attempt to preempt past rulings that have protected Israeli actions from Alien Tort claims, the recent complaint filed on behalf of 15 Palestinians carefully construes the settlers' actions as entirely separate from those of the state.

    Indicting settlers in a Brooklyn courtroom as terrorists for driving Palestinians from their own land is a powerful, exciting, and tempting notion. However, to argue that this colonising enterprise is exclusive to settlers necessitates a divorce not only from history, but present-day reality.

    Recall the widely circulated Sasson Report, commissioned by then-Prime Minister Ariel Sharon in 2005, which concluded that Israeli state bodies have diverted crucial funds to settlements and outposts in contravention of even Israeli law.

    Or consider a recent collection of incidents in a single two-week reporting period by the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), which found that settlers destroyed 2,000 dunams (494 acres) of Palestinian grazing land, while the Israeli army destroyed 17 Palestinian-owned structures in Area C of the West Bank, displacing 35 Palestinians.

    These are just two of countless recent examples that marauding, gun-toting, olive tree-burning settlers are not going rogue from their progenitor state. What would a court victory imply if settlers are determined to be the only force terrorising Palestinians?

    But prosecuting terrorism in a courtroom stripped of context - or filled with ill-informed context - does not diverge from how US courts have proceeded to issue the stamp of terrorist - or potential terrorist - on countless Muslims over the past decade. An entire counterterrorism industry has been constructed around the misinformed representation and pseudo-scientific theories of the Muslim population, and the courts have listened and deferred to this reasoning with catastrophic results.

    Consider just a few of the "terrorists" US courts have convicted - or tried to convict - since the declaration of a "war on terror": Tarek Mehanna, Sami Al-Arian, and Syed Fahad Hashmi. All of these men were held in solitary confinement for years on extremely weak (if any) allegations of supporting domestic terrorism, the spectre of which has hung over nearly every aspect of public and private life for over a decade, fuelling excesses in law enforcement, surveillance and prosecutorial overreach to which opposition appears to have been entirely leeched of vitality.

    As a legal or political concept, "terrorism" has no sound definition because it's been constructed not to communicate with precision but to disguise and achieve a political objective, for which the courts have not resisted becoming "a mere errand boy for the executive branch..." as Justice Douglas admonished against in the 1970s. In Erakat's article she argues that the Bush Administration flouted the cautions of Justice Douglas, ushering in an era of court decisions percolated through a political filter, making the Judicial Branch simply another arena for the Executive's "war on terror".

    Can this era of botched "justice" be remedied by broadening the demographic eligible to don the label of terrorist? Only if justice looks like an endless war.

    Charlotte Silver is a journalist based in San Francisco and the West Bank. She is a graduate of Stanford University. 

    Follow her on Twitter: @CharEsilver

    SOURCE: Al Jazeera



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