None of the defendants engaged in acts that were, at the time, obviously criminal in nature. It was not until several months after their return from Afghanistan that planes crashed into the World Trade Center, and the United States embarked on its virtually endless war on terrorism.
The maximum sentence faced by the men under the charges brought against them was 25 years. All of the defendants were in their twenties when arrested. Each defendant was convicted on the basis of a guilty plea entered into in order to avoid the possibility of receiving the maximum sentence. As part of the plea arrangement, the Government agreed to forego any right it has to detain the defendant as an enemy combatant... By raising the potential for such treatment, the Government implicitly threatened to hold the men indefinitely without access to their families or to their attorneys. The Government also insisted as a condition of the plea on a waiver by each defendant of the right to appeal, even if the Supreme Court were later to find the law unconstitutional, as the Ninth Circuit Court of Appeals has recently done. Such pressure tactics, especially in light of the constitutionally suspect character of the law, were unconscionable and should be repudiated by our public officials.
During their plea proceedings, some of the defendants made public admissions of wrongdoing, principally that they had made a mistake. But the mistake was obviously one recognized in retrospect, after the events of September 11, 2001, after their arrests, and after their pre-trial detention. These admissions were made to mitigate the possibility of even harsher punishments, and they were extracted to legitimate a highly dubious prosecution.
The Lackawanna Six were prosecuted in an environment pervaded by fear and hysteria. Their punishments were unduly harsh, and even vindictive. Despite denials by the Court and the prosecution, the crimes alleged against them actually were thought crimes. How could Shafal Mosed, for example, have known that by going to the training camp, where he learned more about al-Quaida then he knew before he arrived, that he would be charged criminally with taking action in support of a terrorist organization? How could he have known that learning more about a movement of worldwide political significance was in effect a decision to commit crimes punishable by up to twenty-five years in prison?
When a criminal law implicates important First Amendment concerns, it must be sufficiently clear so as to allow persons of ordinary intelligence a reasonable opportunity to know what is being prohibited. A person of ordinary intelligence would not anticipate that training, even military-style training, would constitute criminal activity punishable by a lengthy prison term. This was especially true in pre-September 11, 2001 America. How could anyone then anticipate that severe criminal sanctions would flow from obtaining a uniform, attending a training camp and doing guard duty? The most that can be said, and this in hindsight, is that these men exhibited poor judgment. But how can it be criminal to view videotapes of the bombing of the USS Cole or speeches by Osama Bin-Laden when the same material is broadcast over the airways, even on network television?
The potential of our government to use the vague contours of the law to inhibit free speech and associational activities must be rejected. These men were charged with providing material support to a foreign terrorist organization. Yet how can paying a few dollars for a uniform constitute the provision of material support? It may provide moral support, but how can it be material to the success of the efforts of a terrorist organization like al-Quaida?
As the Supreme Court observed in 1963 in NAACP v. Button, our First Amendment freedoms are delicate and vulnerable, as well as supremely precious in our society.... Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.
The ties that hold our community together are delicate and vulnerable. The prosecution of the Lackawanna Six has torn at the fabric of our community. I hope that it is not too late to repair the damage by restoring the defendants to their families and to the community-at-large. They should immediately be released from federal custody. By John Ned Lipsitz
In times of crisis, constitutional freedoms are more precious and essential than ever to the survival of our democracy. In prosecuting and sentencing six men from Lackawanna, New York under a law known as the Anti-terrorism and Effective Death Penalty Act of 1996, our Government violated their First Amendment freedoms and denied them the Due Process of Law.
The men were charged with attending an al-Quaida training camp in Afghanistan in the Spring of 2001. After they were arrested in September 2002, each defendant admitted training at the camp but denied any intention to engage in acts of terrorism.
The Lackawanna Six were sentenced in December 2003. Muktar al-Bakri had just been married before he was arrested. He was given a sentence of ten years. Yasein Taher, married with one child, received a sentence of eight years. Shafal Mosed was also sentenced to eight years. At the time of his sentencing, Mosed said, I was never part of a sleeper cell or affiliated with any terrorist organization. I was part of a group of people who made a terrible mistake... Mosed had been convinced by recruiters in early 2001 that it was his religious duty to travel to the camp. He left without completing the training