Posted by Ryan Suto on July 20, 2017 in Blog

The soon-to-be Director of the FBI has a concerning track record on First Amendment rights. 

“As expected” is the best description of the Senate confirmation hearing for President Trump’s pick to be the next Director of the FBI, Christopher Wray. Wray responded to a variety of questions about his independence from Trump, past FBI treatment of whistleblowers, his involvement in justifying waterboarding, and the ongoing Russia investigation. His answers on most issues were largely mainstream and orthodox. 

But while Wray’s hearing was met with a largely positive reception by Democrats and Republicans alike, the Senators and pundits failed to examine Wray’s record backing the use of material support evidence in pursuit of terrorism prosecutions—maybe the most concerning aspect of his record and testimony. Having previously served in the Department of Justice following 9/11, Wray played an important but unclear role in broad prosecutions under the USA PATRIOT Act. The documents from the period contain key redactions, so the extent of Wray’s participation is unknown, but his name appears frequently, clarifying his role as a key official.

Since the 1990s US law proscribes the provision of “material support or resources” to terrorist organizations. Among other things, this includes training, expert advice, personnel, and services. In pursuing prosecutions under such laws, the Government has claimed that any donation whatsoever to a terrorist organization or an organization which associates with a terrorist organization, regardless of the intent of humanitarian nature of the donation, constitutes material support for terrorism. 

Wray affirmed the use of these material support laws during his July 12 hearing. When the subject was raised by Sen. Dianne Feinstein (D-CA) Wray responded, “Material support legal remedies are particularly important… you need to look at a terrorist plot by looking at the whole continuum of it… any kind of material support that is available is particularly important to trying to prevent attacks.” During this exchange he added, “we'd far rather catch a terrorist with his hands on a check than his hands on a bomb.” While the quote itself may sound compelling, how Wray and the government have enforced this prohibition of support for terrorist organizations has been deeply problematic.

Beyond the neutral language of the statutes themselves, Wray has shown a propensity to target Arab and Muslim suspects when applying the law. As NPR recently reported

“In an earlier stint at the Justice Department, Wray supported the detention of hundreds of mostly Arab or Muslim men for immigration violations. The Justice Department inspector general concluded Wray supported the detentions and, along with another federal official, told prison authorities to ‘not be in a hurry’ to give the men access to lawyers or family visits.”

More broadly, in 2006 the Justice Department used material support statutes to arrest a US citizen for allowing a friend to stay with him, along with the friend’s luggage which contained raincoats and ponchos. Under these laws, there is no requirement for the individual to know that the raincoats would eventually be delivered to Al Qaeda, and he was successfully convicted. In 2008 the US convicted the leaders of a Texas-based charity which sent donations to local Palestinian humanitarian organizations which, while engaged in no terrorism-related activities themselves, also received support from Hamas. In 2010 the Supreme Court upheld the use of such evidence and tenuous connections in Holder v. Humanitarian Law Project.

Allowing for such a broad definition of material support, to include indirect and humanitarian contributions to loosely affiliated persons or entities, effectively criminalizes free expression through the reality and fear of terrorism prosecutions. Human Rights Watch has found that such laws have “led federal prosecutors to levy criminal charges for religious or political conduct itself, or as the primary evidence of criminal activity.” First Amendment jurisprudence, however, has traditionally held political and religious speech as the most protected expression under the Constitution.[1] Following the Court’s Citizens United v. FEC decision which affirmed that campaign contributions are speech and warrant Constitutional protection, such financial expressions of political and religious ideology should garner Constitutional protections, as well.   

With Christopher Wray set to become the next Director of the FBI, the US government will undoubtedly continue to push beyond the bounds of due process and protected expression, leaving Arab Americans and American Muslims with no assurance that Wray’s FBI will not criminalize their peaceful social and organizational connections in the name of terror prevention.  

The Director of the FBI should provide comfort to Americans that the government will not attempt to deter Constitutionally protected speech with no evidence that a US citizen intends to commit terrorism, create a terror-based conspiracy, or attempt to solicit terrorism or other crimes. But beyond platitudes made during the confirmation hearing that he would lead an FBI “for all Americans”, some parts of Wray’s past record give no solace to communities all too familiar with the government’s willingness to sometimes overreach.   

[1]Under Brandenburg v. Ohio, the First Amendment even protects the advocacy of unlawful action, as long as the advocacy is not aimed at inciting or producing imminent lawless action.