Nov 05 2016

Unindicted Co-Conspirator : Uncharged Third-Party


By Priscilla Galstaun
November 2016

The United States government has never formally charged the Council on American-Islamic Relations (CAIR), a civil and religious rights advocacy group, with an offense.

However, this fact is lost on a sizeable number of people who hate and fear all things Muslim. And state legislatures, preceded by the Federal government, bear a significant part of that responsibility.

Rep. John Bennetts’ (R-Sallisaw) interim study on “Radical Islam, Shariah Law, the Muslim Brotherhood and the radicalization process” was conducted at the Oklahoma State Capitol with House Speaker Jeff Hickmans’ (R-Fairview) stamp of approval and attended by two other legislators. This demonstrates how elected state officials use their positions of authority to intimidate and threaten Oklahoma Muslims who make up less than 1 percent of the state’s population.

This “study” which aims at banning CAIR-OK and perpetuates the myth that the government designated CAIR as a terrorist organization, was made possible, in part, because of a precedent that was set by the Federal government when it publicly named CAIR as an “unindicted co-conspirator” in the Holy Land Foundation case – 1 from almost 300 other individuals and groups.

What Bennett and his cabal of anti-Muslim extremists pointedly ignore is the often overlooked but crucial details on how :

  1. The unindicted co-conspirator designation is a “tactical pre-trial maneuvering and not an indicator of guilt” and,
  2. On October 20, 2010, the U.S. Court of Appeals for the Fifth Circuit ruled that when the U.S. Justice Department publicly listed third-party Muslim organizations including CAIR as unindicted co-conspirators, it violated their Fifth Amendment rights – “[n]o person shall . . be deprived of life, liberty, or property, without due process of law[.]”

While the Appeals Court ruling was in favor of CAIR, this practice of grand juries publicly naming uncharged third-parties gave a green light to authoritarian government agents and their sycophants to initiate smear campaigns and allegations against innocent Muslims and Muslim-run organizations; allegations that are unsubstantiated, long-lived, widely felt and rooted in anti-Muslim animus.

When the government formally charges an individual or group with an offense, as part of due process, prosecutors should be sensitive to the privacy and reputation of any uncharged third-party. To this end, the United States Attorneys’ Manual recommends against publicly naming “unindicted co-conspirators” in a grand jury indictment. And while this recommendation is not binding, disregarding it in every sense violates our Fifth Amendment rights which guarantees, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…” .

And while it’s true that this designation has no direct legal impact on the designee, it sets the precedent for as much social stigmatization as this latitude can allow.

Serving as the Executive Director of a CAIR Oklahoma chapter, Adam Soltani’s experience at Rep. Bennett’s legislative hearing provides a first-hand glimpse of the stigma produced by this smear campaign. Representing CAIR means that a legislator, on no evidentiary basis at all, can hold an “interim study” at which you’re explicitly labeled a “terrorist,” which is exactly what happened to Mr. Soltani.

Furthermore, serving as a CAIR-OK board member means the legitimacy of your political affiliations is challenged in a court of public opinion, which is precisely what I experienced subsequent to the legislative hearing.

The far-right, social conservatives and GOP blowhards that make-up a sizeable portion of CAIR detractors in Oklahoma, who may otherwise not care a smidgen for my affiliations, are now eyeballs deep in casting aspersions on my intentions, actions and associations. The pillorying runs the gamut from the Machiavellian to the lampooning of my ‘delegate’ status with the Libertarian Party of Oklahoma. It even led someone who is clearly in denial on what libertarianism means and who doesn’t even know me, to ludicrously opine via social media, “If she’s a part of CAIR, she can’t be a true libertarian. That would be an oxymoron.”

Imagine this person’s cognitive dissonance when they discover how several Oklahoma libertarians’ views on the upcoming State Questions on the ballot on November 8, correspond with CAIR-OK’s recently released 2016 voter guidelines for the benefit of the Muslim voter.

The irony is not lost on me. As Muslim Americans, if we’re not politically involved and vocal, it means we’re being intentionally opaque and deceptive. But as a _________ (insert party affiliation) Muslim American, and CAIR-OK board member, transparency is equated with being disingenuous; Damned if we do and damned if we don’t.

If all this lampooning is meant to faze us, then the $57 million Islamophobia empire is in for a big disappointment. The very singularities that I and my brothers and sisters are excoriated for: “Muslim, Libertarian / Other, American, and a fervent advocate for civil and religious rights and liberties for all people”, are what grant us a leading and unapologetic role in our stories. This is our  identity, our script, and an authentic way to be true to who we are. No amount of vilification and demands for a reassignment of our role in what is your story and your script, will cause us to give ground.

And finally but more importantly, the unchallenged and irresponsible public branding of innocent Muslims: An unmerited standard applied by the federal government with grand juries publicly naming individuals and organizations as “unindicted co-conspirators”. This unconstitutional practice does nothing to shield innocent third parties from slander, anti-Muslim sentiment and suspicion. On the contrary it violates our due process rights, and singles us out for smear campaigns with often incalculable risks.

Either the Department of Justice believes in due process rights and in the Fifth Amendment or it doesn’t. If not, ex-Marine legislators like John Bennett of Oklahoma will continue to misuse the powers afforded them, to dispossess minority constituents of their civil and religious liberties, and to seek the expulsion of the very people they were sworn into office to protect, with calls for CAIR-OK to lead the exodus.

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