What is "Preemptive Prosecution" and Why Is It Abusive?

Preemptive prosecution (also called preventive, predatory, proactive, pretextual, or manufactured prosecution) is a law enforcement strategy adopted after 9/11 to target for prosecution individuals or organizations whose beliefs, ideology, or religious affiliations raise security concerns for the government.

WHAT IS PREEMPTIVE PROSECUTION?

Preemptive prosecution uses actual criminal charges as pretexts, manufactured by the government to incarcerate the targets for their beliefs. These pretexts include:

1. Using "material support for terrorism" laws to criminalize activities that are not otherwise considered criminal, such as free speech, free association, charity, and social hospitality.


2. Using conspiracy laws to treat friendships and organizations as criminal conspiracies, and their members as guilty by association, even when most members of the group have not been involved in criminal activity and may not even be aware of it.


3. Entrapping targets in criminal plots manufactured and controlled by the government.


4. Using "technical" crimes, which otherwise would not have been prosecuted, to target individuals for their ideology (for example, making a minor error on an immigration form, which is technically a crime). In this approach, the FBI combs through every detail of one's life, looking for crimes which otherwise would not have been discovered.

THE ABUSIVE NATURE OF PREEMPTIVE PROSECUTION

Journalist Chris Hedges has written that “the concept of pre-emptive prosecution mocks domestic law as egregiously as pre-emptive war mocks the foundations of international law.”

Strategies employed in a preemptive prosecution often include government use of:

• stings
• material support charges
• conspiracy charges (whereby all associates are equally culpable, even if they do not know of the existence of a plan)
• old charges as pretext
• frame-ups
• tortured confessions
• false statements/perjury charges
• contempt charges
• immigration-related charges
• use of solitary confinement pre-trial to coerce a guilty plea and post-trial to coerce additional information on associates

Targeted activities often include:

• participation in a fictional sting
• First Amendment-protected activities
• association with other targeted individuals
• supposed mishandling or divulging classified information
• joining a national liberation movement that the government disagrees with
• charity financing
• attendance at a training camp

You can read more about how these abusive practices have been used in the pages throughout this site which describe individual cases.