New research reveals that the Black-white racial wealth gap is widening and is attributable to racial disparities in home ownership. As such, mortgage relief programs are being scrutinized for their failure to address the needs of communities of color.
The $25 billion National Mortgage Settlement at first seemed like a blessing for families decimated by the foreclosure crisis. But according to housing counseling organizations and community activists, the program is not providing relief to the communities of color that were hardest hit by the foreclosure crisis and the predatory lending practices that were the primary cause of that crisis.
The Subprime Lending Crisis
The 2008 collapse of the United States economy was caused by the unchecked casino mentality on Wall Street in the late 1990s and early 2000s, a time when banks enabled investors’ lust for bigger dividends on financial instruments that were ultimately worth nothing. All of this can be tied to one peculiar financial instrument: the mortgage-backed security, or more specifically mortgage-backed securities comprised of loans to borrowers who were unqualified for such loans.
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With the introduction of mortgage-backed securities, the due diligence normally performed by banks to ensure that borrowers had the capacity to repay the loans fell by the wayside because the banks were no longer on the hook if the borrower defaulted on the loan. With the introduction of subprime mortgage-backed securities, banks began to target communities of colors, handing out loans to Blacks and Latinos without regard for borrowers’ ability to repay them.
Writing last year in the Washington Post‘s The Root DC blog, Barbara Reynolds cited research showing that “[o]verall, African Americans and Latinos were 30 percent more likely to receive high-rate subprime loans compared with white borrowers.” Such practices cost these families—and are continuing to cost these families—hundreds of billions of dollars.
Furthermore, these practices disproportionately affect women, especially Black women, as Avis Jones-DeWeever, executive director of the National Council of Negro Women, pointed out in a 2008 article.
The Foreclosure Crisis
When the housing bubble burst, it hit communities of color the hardest. Janis Bowdler, director of the Wealth-Building Policy Project at the National Council of La Raza, told Rewire that “the crisis hit Latino families first, hard, and in waves, continuously,” in part because of economic inequities and in part because “Latino families were concentrated in places where the bubble was the worst: in California, the Las Vegas area, and Florida.”
“Latinos have lost 66 percent of their household wealth,” she said, adding that “the modicum of success with income gains and wealth and asset gains in the Latino community were wiped out.” Meanwhile, “African-Americans have lost 58 percent of their household wealth.” Indeed, between 2007 and 2009 there were 2.5 million foreclosures in the United States, and African-American and Latino families lost their homes in greater proportion than white families, according to a Center for Responsible Lending report.
The National Mortgage Settlement
Negotiated in February 2012 between 49 state attorneys general and five of the nation’s largest banks—Bank of America, JPMorgan Chase, Wells Fargo, Citigroup, and Ally Financial—the settlement was viewed as a small but necessary step toward ameliorating some of the damage that the foreclosure crisis caused homeowners.
The settlement made it clear that it was wrong for loan servicers to engage in robo-signing practices, whereby they would perfunctorily sign foreclosure documents without the presence of a notary public and without knowing whether or not the information contained in the documents was factually accurate.
It was intended to provide up to $25 billion in relief to borrowers in crisis as well as direct payments to states and the federal government.
The civil rights community rallied around the settlement, despite a prevailing feeling that “the money wasn’t enough compared to the harm done,” said Bowdler, explaining that activists felt they had to take the deal. “The mortgage settlement was tied to the robo-signing scandal, and so for legal reasons we had a narrow legal hook, and we think we got the most out of it that we could,” she said. “Our thinking was, we’ve got a lot of families that are right on the edge and we need to get the relief that we can to them right now.”
According to Bowdler, the spirit and intent of the settlement was to keep families in their homes. Of the total $25 billion from the settlement, $17 billion was supposed to be available for principal reduction. As the National Association of Attorneys General explained at the time, “The principal reduction program will target homeowners who cannot afford their current payment but could make reasonable payments if the loan amount were reduced.”
Bowdler said there was a concern among civil rights activists that banks would do the bare minimum, rather than do what they should in order to help families stay in their homes. She said that activists knew going into the settlement that it “wasn’t going to solve all the problems that homeowners were facing in terms of foreclosure, but it was supposed to be an influx of relief.”
Unfortunately, it hasn’t been. In the year since the settlement was negotiated, civil rights activists’ fears have proven valid. The banks have barreled through their settlement obligations to reduce principal balances, but communities of color have seen little benefit from these efforts.
“There’s this emerging sense that all of that principal reduction that was supposed to be generated is unaccounted for. We can’t find it and we don’t know who’s getting it, but we’re pretty sure it’s not coming back into our communities,” she said. But she has theories. She describes the prevailing fear that “for efficiency’s sake, banks would go to the suburbs, to the ‘McMansions,’ where they could get large hits on principal reduction.” There was also concern that “in communities of color, where they’ve suffered one hit after the other, one failed program after another, that borrower and homeowner burn-out and fatigue are high.”
Bowdler also expressed concern that the “banks seem to be taking a lottery approach.” “Some people are getting huge principal reduction, and huge balances wiped down the slate, but for every one of them, there are hundreds of family who don’t get it,” she said. In practice, the settlement has set up a system of winners and losers. “Some people are big winners,” she said, “and the vast majority of people don’t get anything.”
At a February 27 summit held by the Alliance for Stabilizing Our Communities, a partnership between the National Council of La Raza, the National Urban League, and the National Coalition for Asian Pacific American Community Development, community leaders gathered to reflect on the progress of the settlement in light of the Office of Mortgage Oversight’s third report and posed questions to the federal monitor, Joe Smith. Namely, they expressed concerns that communities of color are not reaping benefits from the settlement at a level proportional to the harm done. During the symposium, community leaders called for increased transparency in the implementation of the settlement and for increased principal reduction in order to ensure that banks offer relief to individuals hit hardest by the foreclosure crisis.
Unfortunately, it is virtually impossible to determine, at the policy level, how the national settlement is faring. Because the settlement did not put into place any data collection procedures, “there’s no data on who is getting the principal reductions.” All that’s left is anecdotal evidence, like the stories of stricken homeowners in this video released by NCLR.
Principal Reduction and Fairness
One question that looms large in the media relates to the fairness of principal reduction as a policy. “Why should irresponsible homeowners who obtained loans they couldn’t afford receive a bailout?” is a question you often hear.
Arguably, it’s only fair that the banks absorb the costs of their wrong-doing to the communities of color that their practices harmed the most. But Bowdler argues that it is an issue not just of fairness and justice, but also of sensible economics. The Great Recession has caused the unemployment rate in communities of color to skyrocket. So even for families that were not sucked into subprime loan scams and who were able to obtain decent loans, the crisis caused by the subprime loan scam has had a negative effect on them as they try to meet their financial obligations.
“The reason why banks should reduce principal,” Bowdler explained, “is because it makes economic sense for their bottom line as well as for the homeowner. When you take a family who is in a hardship—who is deeply underwater on their loan—and you reduce their principal, it has been shown that this is the most effective way to keep a family in their home and away for foreclosure. And you can do it in a way that costs the bank and the investor less than actually going through a foreclosure.”
We probably won’t understand the full extent of the damage that the foreclosure crisis has wrought in communities of color for years to come, but activists are not giving up. The prevailing concern for community activists, Bowdler said, is “how are we going to save and revive our neighborhoods, keep them safe, keep local economies going.”
“All of these goals are things that we should all care about,” Bowdler added.
“We need to have a national conversation about racism, homophobia, and transphobia,” said Alan Pelaez Lopez, a member of the organization Familia: Trans Queer Liberation Movement. “If these things do not happen, the nation, by definition, will have done nothing to support our communities.”
The same day of the Orlando Pulse nightclub shooting that would take the lives of 49 mostly Latino and LGBTQ-identified people, thousands of miles away in Santa Monica, California, a man was found with weapons, ammunition, and explosive-making materials in his car with plans to attend the annual Pride festival taking place in West Hollywood later that day.
But queer and trans people of color (QTPOC) say these responses are missing the mark, because what their communities really need are deeper conversations and more resources that address their specific experiences, including fewer police at Pride events.
House Democrats held a sit-in on gun control this week as a direct response to the Orlando shooting. Though Alan Pelaez Lopez—an Afro-Latinx, gender-nonconforming immigrant, poet, and member of the organization Familia: Trans Queer Liberation Movement—agrees that gun control is important and should be considered by Congress, they said it can also feel like the community affected by the shooting almost always gets erased from those discussions.
“We need to have a national conversation about racism, homophobia, and transphobia,” the poet said. “If these things do not happen, the nation, by definition, will have done nothing to support our communities.”
Rethinking ‘Pride’ for People of Color
In mid-May, Rewire reported on the National Queer Asian Pacific Islander Alliance (NQAPIA)’s week of action to #RedefineSecurity, which encouraged participants to reimagine what safety looked like in Asian and Pacific Islander communities, and called for them to push back against police presences at Pride events.
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Pride events and festivals take place each June to commemorate the Stonewall riots in New York City, a clash between police officers and members of the LGBTQ community—led by trans women of color—that would kickstart the modern LGBTQ movement.
Even after the Orlando shooting at a gay nightclub, NQAPIA organizing director Sasha W. told Rewire their stance on police at Pride events hasn’t changed, but only grown more resolute.
As an organizer working with queer and trans Muslim, South Asian, and Middle Eastern communities, Sasha W. said the populations they work with say that framing the Orlando shooting as a “terrorist attack” makes them feel “increasingly unsafe.”
“I think part of what we need to remember is to examine what ‘terror’ looked like in queer and trans communities over the course of our history in this country,” Sasha W. said. They cited the Stonewall riots and the inaction by the government during the HIV and AIDS epidemic as examples of some of the many ways the state has inflicted violence on queer and trans communities.
Sasha W. added that pointing blame at Daeshis too easy, and that the oppression queer and trans people face in the United States has always been state-sanctioned. “We have not historically faced ‘terror’ at the hands of Muslim people or brown people. That is not where our fear has come from,” they said.
What’s missing, they said, is a conversation about why police officers make certain people feel safe, and “interrogating where that privilege comes from.” In other words, there are communities who do not have to fear the police, who are not criminalized by them, and who are confident that cops will help them in need. These are not privileges experienced by many in queer and trans communities of color.
Asking the mainstream LGBTQ community to rethink their stance on police and institutions that have historically targeted and criminalized communities of color has been challenging for queer and trans people of color.
What’s become clear, according to Familia: Trans Queer Liberation Movement founder Jorge Gutierrez, is that after a tragedy like Orlando, white LGBTQ members want to feel united, but many don’t want to discuss how things like race and citizenship status affect feelings of safety. Instead, some will push for a greater police presence at events.
There have already been instances of white members of the LGBTQ community publicly shutting down conversations around racial justice. Advocates say the public needs to understand the broader context of this moment.
“The white LGBTQ community doesn’t face the criminalization and policing that our community faces every day. Not just at Pride, but every day, everywhere we go. That’s our life,” Gutierrez said. “If you don’t listen to us when it comes to these issues of safety, you’re not just erasing us from a tragedy that impacted us, but you’re really hurting us.”
As Gutierrez explained, in the hours after the shooting, some media coverage failed to mention Pulse was a gay club, failed to mention it was people of color who were killed on Latino night, and failed to mention that trans women were performing just before the shooting broke out. Gutierrez told Rewire he felt like his community and their pain was being erased, so his organization put together a video featuring queer and trans immigrants of color, including Lopez, to discuss their immediate feelings after the Pulse shooting—and many shared sentiments similar to Sasha W.’s and Lopez’s. One trans Latina said the shooting was “years in the making.”
“The video was important for us to release because the shooting was being framed as an isolated event that randomly happened, but we know that’s not true. We know that the United States has a history of hurting queer and trans people of color and we needed to produce our own media, with our own messaging, from our own people to tell people what really happened, the history that lead to it happening, and who it really impacted. We didn’t want our voices and our realities as immigrants, as undocumented people, as queer and trans people of color, erased,” Gutierrez said.
Without even factoring in an increase in law enforcement, Lopez told Rewire Pride already felt unsafe for people like them.
“I have experienced a lot of racism [at Pride events], the pulling of my hair from people walking behind me, and I have also been sexually harassed by white people who claim to want to experiment with being with a Black person,” Lopez said.
Though Lopez didn’t attendany Pride events in Los Angeles this year, they told Rewire that in previous years, there was already a large police presence at Pride events and as a “traumatized person” who has had many negative interactions with police officers, including being racially profiled and stopped and frisked, encountering law enforcement was scary.
“Seeing [cops] at Pride makes me remember that I am always a target because at no time has the police made me feel protected,” the poet said. “Signs of heavy police presence are really triggering to people who have developed post-traumatic stress disorder from violent interactions with the police, for undocumented communities, for transgender communities, for young people of color, and for formerly incarcerated individuals. When I think of security, I do not think of police.”
Another reason Lopez chose not to attend Pride this year: It was being sponsored by Wells Fargo. The banking corporation sponsors over 50 yearly Pride events and has been called a “longtime advocate of LGBT equality” by organizations like the Human Rights Campaign, which also lists Wells Fargo as a top-rated company on its Corporate Equality Index. But Wells Fargo has a history of investing in private prisons, including detention centers. Calls to drop Wells Fargo from Pride events have been unsuccessful. For queer immigrants like Lopez, attending Pride would mean “financially contributing” to the same corporation and system that they said killed their friends, the same corporation that they said has incarcerated their family, and that they said has tried—but failed—to incarcerate them.
Sasha W. told Rewire that for QTPOC, it’s easy to forget that the event is supposed to be about celebration.
“For many of us, we can’t really bring our whole selves into these places that are meant to make us feel free or we have to turn off parts of who we are in order to enjoy ourselves” the organizer said. “And as far as the policing of these events go, I think it’s worth noting that policing has always been about protecting property. It’s always been about property over people since the days of the slave trade. When we see police at Pride events the assumption [by our communities] is that those police will protect money and business over our queer brown and Black bodies.”
“Really Troubling Policies”
As organizations and corporations work to meet the short-term needs of victims of the Orlando shooting, advocates are thinking ahead to the policies that will adversely affect their communities, and strategizing to redefine safety and security for QTPOC.
Gutierrez told Rewire that what has made him feel safe in the days since the Orlando shooting is being around his QTPOCcommunity, listening to them, mourning with them, sharing space with them, and honoring the lives of the brothers and sisters that were lost. His community, the organizer said, is now more committed than ever to exist boldly and to make the world a safer place for people like them—and that means pushing back against what he believes to be a troubling narrative about what safety should look like.
However, Gutierrez said that politicians are using his community’s pain in the wake of the Orlando shooting to push an anti-Muslim agenda and pit the LGBTQ community against Muslims, conveniently forgetting that there are people who live at the intersection of being queer and Muslim. Perhaps more troubling are the policies that may arise as a result of the shooting, policies that will add to the surveilling and profiling Muslims already experience and that will further stigmatize and criminalize vulnerable communities.
“The government, the police, politicians, they’re trying to equate safety with having more police on the street, at gay clubs—that are like home to many of us, and at Pride. We know that doesn’t make us safe; we know police are part of the problem,” he said.
“Of course we need to make it more difficult for people to get guns, but we also need more resources for our communities so our communities can truly be safe on the streets, in the workplace, at school, at the clubs, and at Pride,” he said. “That means having healthy communities that have resources so people can thrive and live authentically. The answer to our problems is not more police.”
Sasha W. echoed Gutierrez, saying that their community is already fearful of what’s to come because moments of national crisis often create the space for “really troubling policies.”
“That’s how we got the Patriot Act,” the organizer said. “There is a fear that we are in another one of those moments where there are calls for protection and it’s being tied to the false idea of a foreign threat that requires an increase of surveillance of Muslims. Think of how calls for protection have also hurt queer communities, communities of color, trans communities, like the idea that bathrooms aren’t safe because of trans people. Who is really unsafe in this country, and why do policies hurt us instead of protect us?”
Lopez added: “The Orlando shooting was powered by the fact that the United States has a history of violence against LGBTQIA communities, a history of violence against immigrants, a history of violence against women, and a history of colonization of the island of Puerto Rico …The U.S. needs to address institutional problems of race, ethnicity, class, gender, sex, and sexuality if it wants to put an end to future massacres.”
Sasha W. urges QTPOC to “expand their political imagination” and re-envision what security looks like. In the long term, the organizer said, they hope more people recognize who their communities’ “actual enemies” are, instead of turning on each other.
“Let’s recognize that the state has always been something we’ve had to fight to survive and that institutions that hurt us are growing increasingly strong in this moment of crisis, as they often do, so we have to work to disarm and dismantle the institutions that terrorize our communities” they said.
“On another note, we have always been our own best defense, especially in communities of color,” they said. “Supporting each other to protect ourselves better doesn’t happen overnight, I know, but so much of this starts with building community with each other so that we know each other, love each other, and throw down for one another.”
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.
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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.’”