Guilt by Association: Politically Inspired Fear of Muslims Continues to Infect Politics, Law Enforcement Investigations and Potential Jurors

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


The month of March was saturated with state and national news events which seem to underscore an unfortunate point about Texas and America: we are a society under siege from fear of those we do not understand and, therefore, do not trust. The Ides of March began when New York’s Republican Congressman Rep. Peter King decided to conduct hearings on the threat of “radical Islam” in America. The chairman of the House Homeland Security Committee defended his congressional inquiry into the “role” the “American Muslim community” has played in what’s become known as “homegrown terrorism.”


“There is nothing radical or un-American about holding these hearings,” Rep. King announced to the overflow hearing room filled with journalists and concerned citizens as well as protesters. King conjured up the Fort Hood, Texas shooting rampage by a Muslim soldier and the media-proclaimed “Ft. Dix Six” who had planned a terrorist attack in New Jersey. According to the vocal New York conservative political leader, this was enough evidence to warrant an “investigation” into the role the entire American Muslim community is playing in these kinds of terrorism activities. “This committee cannot live in denial,” Rep. King continued, saying he would not bow to “political correctness” in his determined pursuit of “every Red under the bed” as the legendary Wisconsin Sen. Joseph McCarthy would have said.


A group of 50 Democrats, including two Muslims, had tried before the hearings convened to get Rep. King to cancel them. The Democratic group told King that “singling out one religious group and blaming the actions of individuals on an entire community is not only unfair, it is unwise – and it will not make our country any safer.”


Rep. John D. Dingell (D-Mich.), one of the longest serving members of Congress and whose district includes Dearborn, Michigan, a city where a large Arab-American population resides, was even more direct with his criticism: “They are loyal, honorable Americans, they hold elected office, they have immigrated to our state from all over the United States. They are as much distressed as we are about what’s going on.”



One of those Muslim Americans elected to public office is Rep. Keith Ellison (R-Minn.) who, in tears, spoke about 23-year-old Mohammad Salman Hamdani, a Muslim paramedic who died responding to the 9/11 attacks in New York. “After the tragedy, some people tried to smear his character solely because of his Islamic faith. He should not be identified as just another member of an ethnic group or just another religion, but as an American who gave everything to his fellow Americans.” The Muslim congressman, who has accused Rep. King of being “McCarthyistic” in his attitude about the American Muslim community, added: “We need to approach this through fair analysis and do no harm. I feel this hearing does not meet that standard. When you ascribe violent actions [of individuals] to an entire community, you assign blame to an entire community. That is the heart of scapegoating and stereotyping.”


And therein lies the real social danger: fear infecting the social fabric with distrust and hatred among the classes, races, and, yes, religions. Fear is a cancer that consumes all the good traditions, values, and beliefs of a society and replaces it with racism, class discrimination, and a proclivity for violence by the majority against all minorities. This was evidenced by a March 26, 2011 report in the New York Times about the FBI’s unrelenting pursuit of individuals and groups “suspected” of some form of terrorism. Through a Freedom of Information Act lawsuit, the nation’s largest newspaper forced the U.S. Justice Department to release a document the FBI had strenuously fought to keep secret.


The closely-guarded document reveals that within months after former President George W. Bush “relaxed limits on domestic intelligence gather in late 2008,” the FBI opened investigations on thousands of individuals and groups the agency suspected of being “criminals or terrorists.” Between December 2008 and March 2009, the four-month period covered in the DOJ document, the FBI initiated 11,667 “assessments” of individuals and groups suspected of terrorist or some other criminal-related activity against the national security interests of the United States—many of whom were Arab-Americans or Muslim groups. 8,605 of these preliminary inquiries determined at the lowest level of investigation that there was not enough evidence to proceed any further. That left 427 individuals and groups determined by the agency to be in need of “more intensive investigations.”


The Times reported that “it is not clear, though, whether any charges resulted from the inquiries. And because the F.B.I. provided no comparable figures for a period before the rules change, it is impossible to determine whether the numbers represent an increase in investigations.”
And to the consternation of privacy advocates the Obama administration has left the Bush rule encouraging domestic spying in place. “These are investigations against completely innocent people that are now bound up within the F.B.I.’s intelligence system forever,” Michael German, a former FBI agent and current counsel for the ACLU, told the newspaper. “Is that the best way for the F.B.I. to use its resources.”


Michael B. Mukasey was Bush’s attorney general when the rule change went into place in December 2008. The Times reported that at the time some Democrats criticized the rule change saying the AG Mukasey had opened “the door to racial or religious profiling and … fishing expeditions against Americans.” The newspaper had reported in 2006 that the National Security Agency was providing the FBI with thousands of names, telephone numbers and e-mail addresses it deemed “suspicious” through its “data-mining programs.” The Mukasey guidelines, as they became known, with the new “assessment” category of investigation, allowed the FBI to “proactively” monitor and place under surveillance the very kinds of people and groups supplied to them by the NSA. The FBI’s own manual states that agents need “no particular factual predication” about a person or a group to begin an assessment of them, although the basis for the inquiry “cannot be arbitrary or groundless speculation.” The manual permits FBI agents to use ethnicity, religion or protected speech as a basis for launching an “assessment.”


While an assessment is not a full blown investigation, it nonetheless permits federal agents to search databases, interview an assessment target or people who may know him/her, monitor public gatherings such as political rallies, maintain surveillance of the targets by tailing and photographing them, and placing “confidential informants” in an organization or a church and or mosque to gather information about them.


And that’s not even the worst part. In November 2010, in response to a query by former Wisconsin Sen. Russ Feingold about the number of “assessments” continuing to be opened by the FBI, the Justice Department informed the lawmaker that the law enforcement agency was still operating at a scale comparable to that of the December 2008 through March 2009 period. That means that since the Mukasey guidelines were put in place, the FBI has opened nearly 100,000 “assessments” of overwhelmingly innocent individuals and groups who had the misfortune of having someone “drop a dime” on them to the FBI—and their names, and scope and result of the inquiry against them, will never be deleted from the FBI’s “intelligence gathering” system.


That’s a lot of unnecessary fear. Official suspicion and paranoia – nothing more.


Texans were recently greeted with news, as carried in a Houston Chronicle exclusive on March 27, that over the past 17 months 875 “special interest aliens” from 35 nations with terrorism ties were “apprehended along the border between Texas and California. The newspaper reported that over the past five years 739 such “suspects” from these “watch-list countries” were caught during “illegal crossings into Texas.” These “terrorism” fears are stoked by the fact that there have been 24 “terror plots” uncovered in this country involving “radicalized U.S. citizens or foreign nationals living here” over the past two years.


“There are a lot of people crossing the border who came from scary parts of the world,” U.S. Sen. John Cornyn (R-Texas) was quoted by the Chronicle. “An individual with enough money and enough determination can penetrate our southwestern border and make their way into the United States.”


And this dire “assessment” gained credence the following day when the Chronicle carried a report on March 28th based on documents obtained by the San Antonio Express-News showing that federal authorities are firmly convinced a “Somali man in custody near San Antonio” smuggled “terror suspects” into the country “through Mexico and Texas.”  One of the suspects is Mohamed Ali, “a purported member of the Somalia-based Al-Shabaab, which has aligned itself with al-Qaida and Osama bin Laden.” The San Antonio FBI’s Joint Terrorism Task Force has been trying to “retrace the steps and untangle the contacts” of Ahmed Muhammed, the individual believed to have smuggled Mohamed Ali and others into the country from Mexico through Brownsville. The FBI reportedly has him on tape bragging about making as much as $75,000 “in one day smuggling Somalis.”


CNN recently reported concerning  a Pew Research survey which found that “forty percent of Americans associate Muslims and the Islamic faith with violence.” These beliefs, with their inherent racial prejudice, are inspired and perpetuated by irrational fear deliberately created by our politicians and fed by terror-related media reports. People whistle in the dark because they fear the unseen, the unknown. And inevitably the byproduct of this kind of fear is that law enforcement officials, particularly the FBI, will make tragic mistakes by violating the rights of innocent individuals. This was evidenced in the case of a Muslim student named Yasir Afifi who, along with the Council on American-Islamic Relations (CAIR), filed a civil rights lawsuit against the FBI after Afifi discovered the agency had placed a GPS device under his vehicle to track his movements. The lawsuit, which was filed in the first week of March in federal court in Washington, D.C., alleges both civil and constitutional rights violations, charging that:


“Defendants’ unlawful intrusions into Mr. Afifi’s life—initiated as a result of his heritage, lawful associations, and disclosed political views—create an objective chill on Mr. Afifi’s First Amendment activities. In addition to the fear Mr. Afifi now feels when expressing his political views and maintaining certain lawful associations, Defendants’ actions have deterred others from associating with him, prospective employers most notably. The sentence—even if now in the past—of an intensive surveillance operation by Defendants of Mr. Afifi communicate to persons and organizations that Mr. Afifi is at least suspect if not a threat to the physical security of those in my proximity.”


Afifi said the only basis for the FBI’s investigation and surveillance of him is the fact that his family resides in Egypt and he makes frequent trips and telephone calls to the Middle East. FBI spokesman, Michael Kortan, would only say that any investigation conducted by his agency was pursuant to U.S. Justice Department guidelines, but as the New York Times disclosed, the Mukasey guidelines provide the agency with unfettered leeway to base its investigations on religious and ethnic profiles—both of which Afifi fits.

We do not underestimate the threat of terrorism and the legitimate need for law enforcement agencies to be vigilant in their pursuit to uncover terror plots against this country. But since 9/11 this nation has become increasingly divided along class, racial, religious, and political lines. The foundation of these social divisions is fear, and that is not healthy in a Democratic society. Our concern is that this spreading social climate of fear will increasingly place wrongfully accused individuals before our court system—a system that no longer truly adheres to the traditional principle “innocent until proven guilty.” Guilt is now presumed by association, religious belief, political views, and a criminal indictment. Criminal defense attorneys must face this reality each and every day as they walk into the halls of justice. It has become an enormous challenge, but one good criminal defense attorneys must embrace because, in the final analysis, they are the “goal line defense.”


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization