Without a court order blocking it, Mississippi’s TRAP law H.B. 1390 will go into effect in just a few days. On Sunday, July 1st, Jackson Women’s Health Organization will be forced to comply with the new regulation requiring all who provide safe abortion care to be board-certified OB-GYNs with admitting privileges at a local hospital, and the following day they will be inspected to see if they are in compliance.
But that doesn’t mean that the clinic will shut down immediately, argues the state, who is defending their law and requesting the courts not issue a temporary restraining order to keep the law from going into effect.
Assistant attorneys general responded Thursday on behalf of the state health officer, Dr. Mary Currier. They said the judge should deny the restraining order because under another state law, “the Department of Health cannot revoke their license or shut them down within the next 10 days.”
Like This Story?
Your $10 tax-deductible contribution helps support our research, reporting, and analysis.
The state attorneys said if a health facility is found not complying with a law, it has at least 30 days for an administrative hearing. If a license is revoked at the hearing, the facility would get 30 days to appeal that decision.
“Thus, the immediate concern that the clinic may be closed on July 1 is ill-founded,” the state attorneys wrote.
The letter does show that Sam Mims, House Public Health Committee Chairman, has at least given up on his legal quest to shut the clinic down immediately, trying to bypass the state’s 10-day waiting period. Mims earlier said he was seeking a way to deny the clinic a grace period, saying he didn’t “want to give the facility 10 extra days to perform abortions.”
This is the first article in Rewire’s “Living in the Shadow of Counterterrorism” series. You can read the other pieces in the series here.
For the past 15 years, stories of Muslim Americans arrested on terrorism charges have been splashed across newspapers and television screens.
Less visible, and largely hidden behind the headlines, are the families of the accused. Numbering in the hundreds, these families are living under a dark shadow, often in obscurity and sometimes in poverty, following trials and convictions that brand them and their relations as “terrorists.”
They say the label is heavy with stigma, almost impossible to shake.
Like This Story?
Your $10 tax-deductible contribution helps support our research, reporting, and analysis.
For well over a decade they’ve been challenging discriminatory policing, unfair trials, and draconian sentencing of Muslims charged under terrorism laws passed in the aftermath of 9/11. A once-scattered population of fractured families and organizations working on their behalf has coalesced into a movement, in which activists, lawyers, and scholars are all standing shoulder to shoulder with impacted families under the banner No Separate Justice (NSJ).
The movement’s leaders, by and large, are Muslim women.
One of them is Zurata Duka, an ethnic Albanian immigrant from Macedonia whose sons Dritan, Shain, and Eljvir were arrested in 2007 on conspiracy charges. Zurata lives in a quiet suburban neighborhood in New Jersey with her husband, surrounded by their grandchildren. But her charming home and easy smile belie the fallout from her sons’ arrest, which laid waste to their dream of putting out roots and building a sturdy future for themselves in America.
The Duka brothers now count among hundreds of people, primarily Muslims, prosecuted for terrorist activity since September 11, 2001. The precise number is difficult to ascertain, but a 2014 Human Rights Watch (HRW) report estimated that in the decade between 2001 and 2011, the federal government convicted approximately 500 individuals of terrorism, amounting to about 40 per year.
Informants, paid and unpaid, played a critical role in at least half of these cases, the report found. High-ranking government officials like New Jersey Gov. Chris Christie (R) also used these cases for their own political gain, according to reports. Often, allegations of terrorism have prompted the arrests of Muslim Americans like the Duka brothers, based on wholly fabricated plots, trumped up by federal authorities eager to show they are combating “homegrown terrorism.”
For the Duka family and many others, the HRW report only echoed what they’d known for years: that the FBI’s post-9/11 counterterrorism machine has slowly eaten away at Muslim Americans’ civil liberties and constitutional protections.
According to organizers with NSJ, this erosion amounts to what is essentially a separate justice system for Muslim Americans, one that runs parallel to the protections enshrined in the Constitution, and one that appears to equate adherence to the Islamic faith with a propensity toward violence.
In a three-part series, Rewire will share some of their stories and explore how multiple intersecting issues converge around allegations of terrorism in post-9/11 America.
An Accidental Advocate
Zurata Duka arrived in the United States in 1984 with her husband Firik and their three sons.
They moved around, living first in Texas and then in New York City, where the family added two members, a daughter named Naze and a fourth son, Burim. Eventually they bought a house in a mixed-ethnic, suburban neighborhood in Cherry Hill, New Jersey, which Zurata and Firik believed was a safer choice for their kids than Brooklyn, where they often came home bloodied or bruised from fights with other boys, according to the Intercept.
They did well, establishing two successful roofing businesses, which counted department stores, schools, and even the local fire department among their clients. To all who knew them, they were the veritable poster family for the American dream: self-made, hardworking, prosperous.
All that changed on May 7, 2007—Zurata Duka’s 49th birthday—when a team of armed FBI agents burst into her home screaming at her to get down on the ground.
She conjures up the incident like it was yesterday: “I was washing the dishes,” she tells Rewire in an interview in her home, “when I heard this sound like a bomb. I grabbed a chair because I saw people running in, and got behind the refrigerator. People were yelling at me to put the chair down, and then I felt a gun in my stomach.”
She recalls begging to be allowed to put on her head cover, and requesting a female agent to handcuff her. For hours she sat in the kitchen while the team ransacked her house. One agent seemed particularly agitated, she says, running up and down the stairs and asking repeatedly about her sons’ whereabouts.
Zurata says the years following her sons’ arrest have been a blur of caring for her grandkids and fretting over bills. The family’s roofing businesses, which once enjoyed six-figure earnings, have fallen on hard times, with only her youngest son Burim and her husband (who is pushing 70) to run them. An increasingly tight household budget also means that visits with her sons, who are flung across the country in various federal detention centers—Dritan in West Virginia, Shain in Kentucky, and Eljvir in a maximum-security prison in Colorado—are nearly impossible.
Zurata is also an advocate—though she never uses that word. Over the past eight years she has cultivated a close circle of allies who raise awareness and organize around her sons’ case. She herself has traveled the country speaking publicly on their behalf, often with her oldest grandchild in tow.
A “Separate” Justice System for Muslim Americans
The No Separate Justice movement began in 2009 as a campaign around a Pakistani-American student named Fahad Hashmi, who at the time was being held in pretrial solitary confinement on terrorism-related charges. Over time, it formed a kind of umbrella over various groups and families who were challenging post-9/11 human rights abuses.
These included organizations working against police surveillance, like the City University of New York’s Creating Law Enforcement Accountability & Responsibility project; Palestinian rights’ groups like Al-Awda NY; the direct-action collective Witness Against Torture, whose aim is to shut down the U.S. military prison in Guantanamo; Desis Rising Up and Moving (DRUM), an organization of South Asian workers and youth; and nonprofits like the Center for Constitutional Rights (CCR).
Among them these groups’ members have decades of experience organizing around civil liberties, but the movement’s most active participants are women like Zurata Duka, many of whom had never known a day’s activism until the state snatched away their kin.
The FBI first learned of the Dukas in 2006 when an employee at a Circuit City in Cherry Hill turned over tapes of what appeared to be Muslim men shooting guns in the woods while saying “Allahu Akbar,” Arabic for “God is Greatest.” The Dukas themselves had recorded that footage while on a family vacation in the Pocono Mountains, where they’d also ridden horses and gone skiing. What had started out as a weekend of winter sports turned into a lengthy FBI investigation: Over a period of several months, the bureau went to great lengths to involve the men in a plot to attack the Fort Dix military base in New Jersey, enlisting two informants to secure recordings of the brothers’ support for the scheme.
As the Intercept detailed in a January 2015 piece titled “Christie’s Conspiracy”—about how Chris Christie, then the U.S. attorney for New Jersey, rose to prominence in the wake of Zurata’s sons’ arrest and subsequent trial—the informants never approached the Duka brothers directly about this plan, instead attempting to incite vague verbal commitments to acts of violence by showing them jihadi videos and playing tapes of lectures by radical Islamic scholars. Court transcripts and video recordings have shown that all three men explicitly rejected the idea of engaging in violence, repeatedly telling one informant, Besnik Bakalli, that “jihad” for them meant working hard to support their families, or fighting personal vices like greed and lust.
It is clear from the criminal complaint that the only link between the Duka brothers and the Fort Dix plot was a series of statements that Eljvir’s brother-in-law, Mohamad Shnewer, made to another paid FBI informant, Mahmoud Omar, in which he falsely claimed that the Dukas had agreed to the plan. These claims were subsequently disproved in court, according to the Intercept, when Omar admitted during cross-examination that the Duka brothers had no idea about the alleged plot to kill military personnel at the Navy base.
Though the prosecution was unable to provide proof of a formal agreement—written, oral, or otherwise—that showed the Duka brothers had entered into a conspiracy to attack the military base, the jury delivered a guilty verdict. Both Dritan and Shain received life sentences plus 30 years. Eljvir was sentenced to life without parole.
In January, they presented a motion for retrial based on ineffective counsel before New Jersey District Judge Robert B. Kugler, the same man who presided over the original trial and sentenced the brothers back in 2009. The case is still pending.
As the HRW report makes clear, the Duka brothers’ story is not an anomaly. By analyzing the U.S. Department of Justice’s public records, as well as data secured through Freedom of Information Act requests, HRW concluded:
All of the high-profile domestic terrorism plots of the last decade, with four exceptions, were actually FBI sting operations—plots conducted with the direct involvement of law enforcement informants or agents, including plots that were proposed or led by informants. According to multiple studies, nearly 50 percent of the more than 500 federal counterterrorism convictions resulted from informant-based cases; almost 30 percent of those cases were sting operations in which the informant played an active role in the underlying plot.
In some cases, the report found, the FBI “may have created terrorists out of law-abiding individuals by conducting sting operations that facilitated or invented the target’s willingness to act.”
Sting operations are the cornerstone of a legal strategy that groups like the National Coalition to Protect Civil Freedoms (NCPCF) have termed “preemptive prosecution,” which essentially licenses the government to charge and incarcerate Muslims who have never committed a crime on the basis that their very thoughts pose a threat to national security.
Preemptive prosecutions have given rise to a troubling pattern of innocent persons being incarcerated and families being separated, often in cases manufactured entirely by the government. Experts on “homegrown terrorism” say the alleged fear driving the counterterrorism machine is exaggerated. According to Peter Bergen, author of the United States of Jihad, the risk of “homegrown terrorism” is actually a lower-level threat than the dangers of gun violence or climate change.
In the years after September 11, the New York Times reported Bergen as saying, “an American residing in the United States was around five thousand times more likely to be killed by a fellow citizen armed with a gun than by a terrorist inspired by the ideology of Osama bin Laden.”
As the NCPCF documented in a 2014 report, preemptive prosecutions often involve material support charges, which allow the government to interpret free speech or charitable giving as “support” for international terrorist organizations; the use of conspiracy laws to treat relationships and associations as criminal enterprises, and their members as guilty by association; and the use of confidential informants to ensnare individuals in criminal plots fabricated by the government.
NCPCF Legal Director Kathy Manley told Rewire in a phone interview that of an estimated 399 terrorism cases between 2001 and 2010, approximately 94.2 percent were preemptive prosecutions, or included elements of that strategy.
By analyzing a list of the Department of Justice National Security Division’s unsealed terrorism cases, NCPCF researchers concluded that 72.4 percent of convictions between 2001 and 2010 were based on suspicion of the defendant’s “perceived ideology,” rather than criminal behavior, while a further 21.8 percent of cases represented individuals whose non-terrorist criminal activity was “manipulated and inflated by the government to appear as though they were terrorists,” according to the report.
Families like the Dukas say the legal terminology doesn’t come close to capturing the chilling reality that lurks beneath it: that the federal government is willing to tear asunder scores of Muslim-American families—whose members may have done nothing more than fire guns at a shooting range while evoking God’s name—under the guise of fighting the elusive threat of “homegrown terrorism.”
NCPCF is now in the process of filing commutation petitions—appeals for executive clemency—on behalf of ten victims of preemptive prosecution. One of these petitions, Manley told Rewire, involves a man named Shahawar Matin Siraj who was convicted in 2006 on terrorism conspiracy charges and sentenced to 30 years in prison.
Matin’s story represents a classic case of preemptive prosecution and illustrates how this legal strategy affects entire families.
Turning Mothers Into Advocates
Shahina Parveen lives with her husband, Siraj Abdul Rehman, and their daughter, Sanya Siraj, in Jackson Heights, a bustling immigrant quarter of Queens, New York. Anyone who has visited them knows the apartment is not so much a home as it is a workspace dedicated to exposing the truth behind the case that changed their lives a decade ago.
“You see all this?” Parveen asks, pointing to a stack of books and papers stashed in a corner of the one-bedroom apartment. “This is my office. I have read 4,000 pages about my son’s case. It’s all lies.”
She tells Rewire that when she moved her family from Pakistan to the United States in 1999, escaping daily violence in her native city of Karachi, she couldn’t read or speak much English. But when the NYPD sent an informant after her son in 2003 and then arrested him for allegedly plotting to blow up a train station in Manhattan in 2004, she forced herself to learn so she could understand how Matin—who had always seemed “more interested in video games than in religion”—had been labeled a terrorist.
Through reading court transcripts and watching C-SPAN, she learned the details of how an Egyptian-American NYPD informant named Osama Eldawoody befriended her son by posing as a terminally ill man with a deep knowledge of Islam. Over several months, Eldawoody exposed Matin to the results of the United States’ military exploits overseas, showing him photographs of abused Muslim prisoners at the Abu Ghraib prison complex in Iraq and eventually suggesting that they detonate a bomb at the 34th Street station.
Though Matin refused to plant the bomb in the subway, Eldawoody pressured him into acting as a lookout for the operation, she says. According to a report by the Center for Human Rights and Global Justice at the New York University School of Law, Matin appeared to grow more and more reluctant with the plan, at one point telling the informant he needed to “ask permission” from his mother before going any further.
At his trial, the report states, the prosecution sidelined Matin’s reluctance to participate in the plot and highlighted instead what they called his ”predisposition” toward the crime. The predisposition argument makes it virtually impossible for a defendant to invoke the entrapment defense—an affirmative defense in cases where the government induces a particular crime, through an informant or other means—because the burden is on defendants to prove that they lacked the predisposition toward certain criminal conduct. In terrorism cases, disproving predisposition is a particularly arduous task, given the triggering effects of terrorism cases, which often involve, according to advocates, federal prosecutors inciting jurors’ emotions by presenting evidence of the human toll of other, unrelated terrorist attacks.
According to the Center for Human Rights and Global Justice, the entrapment defense has yet to succeed in court.
A jury found Matin guilty and sentenced him to 30 years. He is currently held at the Federal Correctional Institution at Otisville in upstate New York.
For Parveen, the trauma resulting from his arrest and lengthy trial has been constant.
“The government made us beggars,” she tells Rewire, explaining that much of the Muslim community and large swathes of her own family shunned them after her son’s arrest. She remembers walking the streets trying to solicit funds to pay legal fees; she recalls her daughter, Sanya, being told by prospective employers: “No one will hire the sister of a terrorist.” Neighbors who’d lived side by side with the family for 15 years refused to even step inside their apartment.
“At one point, I was paralyzed from the trauma,” Sanya tells Rewire. “One half of my body just stopped working.”
One of Parveen’s clearest memories of that period is her family being arrested by Immigration and Customs Enforcement officials the day after Matin’s sentencing—possibly in connection with their pending appeal on a political asylum claim—and the 11 nights they spent in an immigrant detention center in Elizabeth, New Jersey.
“I saw with my own eyes how human beings are treated in detention centers. I saw a young woman being physically separated from her newborn baby, and it was like watching my own son being torn away from me,” she explained. One day, inexplicably, immigration officials separated Sanya from her mother and kept them apart for two days. Parveen remembers spending sleepless nights in the detention center, crying, and praying, until suddenly something inside her snapped.
“I had been quiet for three years, from the day my son was arrested until he was sentenced,” she says. “And I was still being abused. I told myself if I am going to be abused even when I’m silent, then I might as well speak out about his case.”
It was the beginning of a long commitment to activism that continues to this day. Through DRUM, Parveen joined the No Separate Justice campaign. She is a powerful orator, and though she personally dislikes the spotlight, she has become a prominent face in the movement against post-9/11 civil rights violations.
She attends vigils and protests. She marches at May Day rallies, keeping alive the call of justice for Muslim prisoners like her son. She is always a phone call away, ready to answer questions about Matin’s case, or talk for hours into the night about his “rubbish” trial. She is quick to get her hands on the latest literature relating to the national security state: She piles books, reports, and clippings from newspapers onto her fragile hopes that one day her family will be vindicated.
“Before my father died, he told me that this was my job now,” Parveen tells Rewire. “He said, ‘Nobody else is going to do this for you—you’re the only one who can fight for your son. I pray that people will show up and support you, but you’re the mother and you have to fight, even on days when you’re fighting alone.’”
She says he died the day before his grandson, Matin, lost his appeal. It was almost as if he knew, Parveen says, that they stood no chance.
“But the last time I spoke to him he told me, ‘No day is the same. Sooner or later, the sun has to rise. You have to fight until the sun rises for Matin—you have to stand; don’t fall.’”
For nearly two hours, U.S. Supreme Court justices weighed two provisions of HB 2, the Texas anti-abortion omnibus bill that has been the focus of sustained legal challenges since 2013. At issue are the law’s requirements that abortion providers in the state have hospital admitting privileges within 30 miles of their clinic, and that abortion clinics meet the same architectural requirements as stand-alone ambulatory surgical centers (ASCs).
Leading into Wednesday’s arguments, both pro- and anti-choice advocates had their sights set on Justice Anthony Kennedy, the swing vote each needs in their corner. But if Justice Kennedy had his mind made up going into Wednesday’s arguments, he didn’t give many signals from the bench. When he did chime in, it was clear he was grappling to find a way out of this case for the Court: He specifically raised the possibility of remanding the case back to the lower courts, possibly for more fact-finding on the patient capacity of those abortion clinics that have managed to stay open since HB 2’s passage.
Like This Story?
Your $10 tax-deductible contribution helps support our research, reporting, and analysis.
This would be a smart move for a Court concerned with appearing too political or deciding such a high-profile case with an incomplete bench. It would also resolve nothing, just effectively kicking the case down the road for a bit. It’s too soon to say what would happen to the clinics in that scenario. Currently, the Fifth Circuit’s decision putting all the requirements into effect is on hold, thanks to a stay issued by the Roberts Court when it took up the case. The question is whether the Court would lift that stay, should it send Whole Woman’s Health back to the Fifth Circuit.
By contrast, Chief Justice John Roberts and Justice Samuel Alito’s thoughts on the case were quite clear. Stephanie Toti, senior counsel for the Center for Reproductive Rights (CRR), had barely finished her introduction to the justices when Roberts pounced on the idea that Whole Woman’s Health should be barred from challenging the admitting privileges portion of the law. He pointed out that the Supreme Court had refused to step in and block it in Planned Parenthood v. Abbott, the first challenge to the admitting privileges provision of HB 2 back in 2013.
After Justice Roberts finished suggesting the plaintiffs shouldn’t even be in Court on their admitting privileges claim in the first place, he then, perhaps accidentally, misstated the legal standard for judging abortion restrictions. Should the Court consider whether the restrictions placed an “undue burden” on abortion rights, asPlanned Parenthood v. Casey and more than 20 years of reproductive rights jurisprudence dictates? Or is the question really whether or not these regulations posed a “substantial obstacle” to a woman’s right to choose?
Spoiler: It’s not one or the other, as Roberts suggested. It’s both.
Under the undue burden standard, courts must first decide whether a law has the purpose of placing a “substantial obstacle” before women seeking abortions. Then the courts move to the second step in the analysis, which asks whether restrictions have the effect of placing a substantial obstacle in the path of women seeking abortions. In other words, there is an “intent” part of the equation and a “consequence” part of the equation, and courts are required to engage both, not one or the other, as Roberts suggested. Since Casey, federal courts have gummed up this second step, and the Fifth Circuit in Hellerstedt just cruised right over it entirely. And it appears that’s what Roberts hoped to do as well.
Justice Samuel Alito, on the other hand, was just plain rude in his questioning of Toti. But I suppose that is to be expected from a conservative justice who, while on the bench, rolled his eyes when Justice Ruth Bader Ginsburg read from her dissent in Vance v. Ball State, the decision that made it more difficult for employees to pursue workplace harassment claims.
Alito seemed most concerned with whether or not abortion providers could actually prove they closed due to HB 2’s requirements or you know, some other reason not actually in the case record, like for having holes in the walls. Many of these ASC requirements seem innocuous, Alito mused. Hardly the kind of requirements that could “burden” anything. Though he didn’t say as much aloud, he may as well have just scoffed, “C’mon ladies, what’s all this fuss about?”
Justice Thomas said nothing.
Which brings me back to elections, their importance, and specifically the importance of this presidential election on this Supreme Court. Two of the day’s best performances came from President Obama’s nominees, Justice Sonia Sotomayor and Justice Elena Kagan, who, with their liberal colleagues Justices Ruth Bader Ginsburg and Stephen Breyer, shredded both the conservative justices’ questions and the State of Texas’ entire case.
Here is Justice Kagan on whether or not there was enough of a link between the law’s provisions and clinic closures, referencing the blizzard of court opinions blocking, then un-blocking, then re-blocking, the measures: “It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it? It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.”
Funny how that works, huh?
And here is Justice Sotomayor responding to Roberts’ word salad on the undue burden standard by reviewing the different hoops a patient in Texas must jump through, both to access a medication abortion and a surgical one. She then tied those hoops back to the purpose and effect of the HB 2 provisions, showing just how dubious Texas’ claims are that either requirement is about patient health:
JUSTICE SOTOMAYOR: Can I walk through the burden a moment? There’s two types of early abortion at play here. The medical abortion, that doesn’t involve any hospital procedure. A doctor prescribes two pills, and the women take the pills at home, correct?
MS. TOTI: Under Texas law, she must take them at the facility, but—but that is otherwise correct.
JUSTICE SOTOMAYOR: I’m sorry. What? She has to come back two separate days to take them?
MS. TOTI: That’s correct, yes.
Nothing like a well-placed “I’m sorry, what?” to draw attention to the absurdity of the restrictions at issue.
But Justice Sotomayor was not finished. To make it clear that the state’s purported safety reasoning is nothing more than legislative afterthought, she then brought up the fact that a dilation and curettage (D and C) is a procedure used for other purposes in addition to terminating a pregnancy:
JUSTICE SOTOMAYOR: What is the risk factor for a D and C related to abortion and a non-abortion D and C? D and Cs are performed in offices for lots of other conditions besides abortion. Is there any evidence in the record that shows that there is any medical difference in the two—in the—in the procedures that would necessitate an abortion being in an ASC or not, or are abortions more risky than the regular D and C?
MS. TOTI: No, Your Honor. The evidence in the record shows that the procedures are virtually identical, particularly when D and C is performed to complete a spontaneous miscarriage. So when a woman miscarries and then follows up with her doctor, the doctor will typically perform a D and C. And that’s virtually identical to an abortion, but it’s not subject to the—the requirements of HB 2.
JUSTICE SOTOMAYOR: So your point, I’m taking, is that the two main health reasons show that this law was targeted at abortion only?
MS. TOTI: That’s absolutely correct. Yes, Your Honor.
It’s nice to hear a Supreme Court justice speak frankly about reproductive health issues without invoking “difficult decisions,” and instead focusing on the medical procedure at hand. With the Court currently evenly split ideologically between conservatives and liberals, this is also another example of what is at stake in the next Supreme Court appointment.
Compare Kagan and Sotomayor’s candor with Justice Kennedy’s invocation of the make-believe “abortion regret syndrome” in Gonzales v. Carhart, or his use of the term “abortionist.” And then consider the Republican strategy of refusing to approve any new Supreme Court appointments writ large until after the presidential election becomes a little clearer. This next appointment may be the opportunity, should a Republican win a 2016 presidential election, to keep control over the highest court in the land for decades.
That also means this next appointment may be the first chance progressives have to wrestle the Court back to center from its rightward drift through the 1980s and today.
In that sense, it is fitting that the biggest abortion rights case the highest court has heard in years would end up before a likely deadlocked Court in the middle of a nasty election cycle. There is quite literally everything on the line for advocates in this case. Should the Court rule for Texas, the provisions will be fully enacted and the nation’s second-largest state will be left with only nine or ten clinics to serve the millions in need. The repercussions would ripple beyond Texas, affecting Louisiana, which would likely be left with only one clinic in the state, while Mississippi would have none left at all. And legislators everywhere else would feel emboldened to pass similarly restrictive laws to cut off abortion care.