Editor’s note: This story stems from the Tribune’s coverage earlier this year of the 20th anniversary of the Sept. 11, 2001, terrorist attacks.
What’s the appropriate balance between individual liberties and public safety, between civil rights and social responsibilities?
That question has played a prominent role in local and national conversations over the past 18 months, specifically with regard to COVID-19 vaccine and mask mandates.
But safety and freedom were at odds 20 years ago as well, in the weeks and months following the Sept. 11, 2001, terrorist attacks.
The major difference back then? The drumbeat in support of individual liberty was much more muted.
Evidence for that can be seen in the vote on the USA Patriot Act, which Congress approved six weeks after the attacks.
The legislation expanded the authority federal investigators had to conduct surveillance on American citizens, as well as foreign nationals. It also increased the penalties for terror-related activities.
By some accounts, the Patriot Act was largely responsible for preventing further large-scale attacks on the American homeland. Critics, however, say it gave the government free rein to spy on citizens, sacrificing constitutional rights to privacy on the altar of public security.
In the heated political climate that followed the Sept. 11 attacks, opposition to the bill was deemed unpatriotic. The U.S. Senate didn’t even hold committee hearings on the measure. It passed 98-1, with Sen. Russ Feingold, D-Wis., as the lone opponent.
The vote in the House was nearly as lopsided. It approved the legislation 357-66. Only three Republicans voted no — including Idaho Rep. C.L. “Butch” Otter.
Otter was the state’s junior congressman at the time, having been elected to the 1st Congressional District seat the previous November.
He was back in Washington, D.C., the morning of Sept. 11, and saw the fireball when one of the hijacked planes crashed into the Pentagon.
His entire office building was also evacuated in October, after anthrax-laced letters were found in the mail room.
The monthlong anthrax attacks, which began a week after 9/11, only added to the national sense of insecurity. Nevertheless, Otter refused to support legislation that, in his view, gave law enforcement unchecked powers to investigate Americans.
“I thought it was a fundamental violation of the Constitution. I still think so,” he said in a 2011 interview. “In essence what the legislative branch did was give the executive branch license to search anywhere, tap anybody’s phone, do anything they wanted.”
In an interview earlier this year, Otter, who went on to serve three terms as Idaho’s governor from 2007-19, couldn’t recall much debate about the bill until a few weeks before the vote.
“What I do remember was a lot of comments that ‘we have to do something,’ ” he said. “I remember the speaker and leadership all saying that. As far as I was concerned, they just came up with the wrong ‘something.’ I think they overreacted.”
Otter, together with Texas Rep. Ron Paul and Ohio Rep. Bob Ney, were the only Republicans in Congress to oppose the legislation.
Fox News vilified him for the move, he said, and it was months before people back in Idaho reconciled themselves to the vote.
“I understood the passion and urgency,” Otter said. “I used to quote Ben Franklin’s saying that those who would give up liberty for security deserve neither. But I don’t think I convinced anyone.”
The law strikes close to home
As it turned out, the first major case involving the expanded powers of the Patriot Act took place in Idaho.
It began the morning of Feb. 26, 2003, with a pre-dawn raid on a student housing unit on Sweet Avenue in Moscow. The target was Sami Omar Al-Hussayen, a 33-year-old doctoral student from Saudi Arabia who was studying computer science at the University of Idaho.
In an 11-count indictment, Justice Department officials alleged that Al-Hussayen violated his student visa by working in the United States and then lied about it.
Their real suspicion, though, was that he was some sort of computer mastermind, using his technical skills to further the fundraising and propaganda goals of various terrorist groups.
According to federal prosecutors, Al-Hussayen “hid his true agenda as webmaster and ‘money man’ for a worldwide Internet network that sought to finance and recruit fighters for violent holy war abroad.”
News reports at the time indicate more than 100 state and federal agents took part in the raid. They collected computers and documents from Al-Hussayen’s apartment and then fanned out across the campus, questioning other Muslim students and faculty.
“I got a call at about 5:45 a.m.,” recalled Raul Sanchez, who at the time was UI’s special assistant to the president for diversity and human rights.
His wife, Monica Schurtman, also worked for the university as a law professor and supervised the school’s immigration clinic.
“She represented a number of Muslim students,” Sanchez said. “One of her clients called and asked if my wife was up. I asked if he realized what time it was. He said, ‘Oh, please don’t wake her. But when she gets up, could you let her know I have two FBI agents here in my apartment.’ He was very polite.”
That prompted a mad scramble by Schurtman and other UI law professors and Moscow attorneys to make sure the students all had legal representation during their interviews with federal investigators.
No other students were ever arrested in the case, and there was never a suggestion that Al-Hussayen had any direct ties to terrorism. Nevertheless, he was eventually charged with three additional counts of conspiracy to provide material support to terrorist groups.
Prior to 2001, “material support” meant giving cash or arms to an organization. But in an effort to go after secondary players — people who offered indirect aid to groups that carry out terrorist attacks — the Patriot Act broadened the definition to include other forms of assistance, such as computer expertise or legal and financial advice.
Al-Hussayen was the first person to be charged under that expanded definition.
Free speech versus the war on terror
The case didn’t go to trial until April 2004.
Federal prosecutors said Al-Hussayen funneled money to the Islamic Assembly of North America, a nonprofit charity and Muslim advocacy organization based in Minnesota.
He also maintained several websites for the group, some of which posted inflammatory messages supporting suicide bombings or encouraging violence against Jews and other “unbelievers.”
Prosecutors alleged that Al-Hussayen not only knew the websites would be used to raise funds and recruit militants for terrorist groups, but that he supported their goals.
Friends and colleagues in Moscow balked at that suggestion, though, saying they’d never seen any indication that Al-Hussayen condoned violence or had radical beliefs of any kind. In fact, after the Sept. 11 attacks, he publicly condemned such behavior.
His supporters also questioned the basic logic of the case. Why, for example, would Al-Hussayen come to Moscow to help Saudis raise money for a terrorist group in Palestine?
“If somebody in Saudi Arabia wanted to give money to someone in Palestine, they could throw it to them,” noted John Dickinson, who served as Al-Hussayen’s faculty adviser.
“I never thought the prosecution’s story made sense,” Dickinson said in a 2004 news story. (Dickinson died in a traffic accident in Oregon in 2017.) “They said things like, ‘Well, he lied on his visa form so he could come back here and develop these web pages.’ I don’t think they realize you can create web pages from anywhere in the world. The only reason for Sami to be in Moscow was to work on his degree.”
Al-Hussayen, who is now CEO of a design consulting firm in the Saudi capital of Riyadh, did not respond to an email request for an interview. His lawyer, Boise attorney David Nevin, also declined to comment.
During the trial, Nevin noted that Al-Hussayen didn’t create any of the inflammatory web pages, nor did he espouse such beliefs himself. He simply managed a few websites, some of which posted objectionable material.
Consequently, he and others characterized the case as a confrontation between the First Amendment and the war on terror.
Al-Hussayen could have stood on a soapbox and publicly expressed any of the views found on the Islamic Assembly websites, Nevin said, and the feds couldn’t have done anything about it because it was all protected speech.
He was so dismissive of the government’s case that he only called one witness during the seven-week trial — former CIA station chief and terrorism expert Frank Anderson.
Anderson, who retired from the agency in 1994, said nothing Al-Hussayen had done resembled the way terrorist networks actually recruit members. Following the trial, he said he was “embarrassed and ashamed that our government has kept a decent and innocent man in jail for a very long time.”
After deliberating for seven days, the jury acquitted Al-Hussayen on six counts, including all three “material support” charges.
In a subsequent editorial, Lewiston Tribune editorial writer Jim Fisher said the acquittal “demonstrates once again why people in tyrannies around the globe look to the United States as a beacon of freedom, a place where government is restrained from penalizing people for unpopular beliefs or unpopular speech.”
“Twelve ordinary citizens in Boise told their government that the Constitution is not optional,” Fisher wrote. “It’s what separates this country from tyranny.”
The debate continues
Al-Hussayen remained in jail for another month following the trial. That’s because the jury failed to reach a verdict on five counts of visa fraud and three counts of making false statements to investigators.
He eventually reached a deal with prosecutors, agreeing to be deported back to Saudi Arabia if they dropped the remaining charges.
After more than 500 days in jail, he was finally free to go home.
The case made headlines across the nation. The Washington Post said it was “the result of one of the most intensive terrorism-related investigations since the Sept. 11 attacks,” with more than a dozen state and federal agencies involved.
The acquittal was a stinging defeat for the Justice Department. Nevertheless, the Patriot Act and its expanded definition of “material support” continued to play a role in subsequent cases.
In 2009, for example, the Humanitarian Law Project was working with two designated foreign terrorist groups in Turkey and Sri Lanka, trying to teach them how to resolve conflicts peacefully.
The nonprofit organization subsequently challenged the legality of federal laws that said such advocacy work qualified as providing expert advice to terrorist groups.
The U.S. Supreme Court upheld the federal statutes in 2010, in a 6-3 decision, saying the First Amendment doesn’t protect speech “that materially supports foreign terrorist organizations.”
Similarly, a 29-year-old Muslim American named Tarek Mehanna was sentenced to 17 years in prison in 2012 for posting information online that was supportive of al-Qaida, the terrorist group responsible for the Sept. 11 attacks.
Prosecutors alleged that Mehanna translated and posted al-Qaida recruitment videos. They also noted that he went to Yemen in 2004 and attempted to enlist in a terrorist training camp.
Even as the Justice Department trumpeted the benefits of the Patriot Act, Otter continued to oppose various provisions of it throughout his time in Congress.
He was one of 18 Republicans to vote against the 2005 reauthorization of the act. He also successfully amended a Justice Department budget bill to strip funding for so-called “sneak-and-peek” searches, which allowed law enforcement to search someone’s home or office when they weren’t there, without ever notifying them. And he nearly succeeded in banning officials from searching a suspect’s library or bookstore records without their knowledge.
“As a freshman congressman, people asked me where I got the moxie to vote against my president and my party,” Otter said recently. “But I never felt like I was arguing against the Patriot Act. I was arguing in favor of the Constitution, and I found a lot of comfort in that. I always thought the Constitution was bigger than any one person.”
Spence may be contacted at email@example.com or (208) 791-9168.