"People who have committed no crime are taken into custody, isolated without adequate recourse to legal advice, railroaded with fake or contrived charges, and 'disappeared' into prisons designed to isolate them," Downs told me when we met last week at Brown University in Providence, R.I.
Downs calls the process of condemning people before they have committed a crime "pre-emptive prosecution." The concept of pre-emptive prosecution mocks domestic law as egregiously as pre-emptive war mocks the foundations of international law.
Down, a retired as chief attorney for the New York State Commission on Judicial Conduct, became part of Aref's legal defense team.
"I was unprepared for the fact that the government would put together a case that was just one lie piled up on top of another lie," Downs said. "And when you pointed it out to them they didn't care. They didn't refute it. They knew that it was a lie. The facts of most of these pre-emptive cases don't support the charges. But the facts are irrelevant. The government has decided to target these people. It wants to take them down for ideological reasons."
"The government is destroying the legal framework of our country.... They defend what they are doing by saying that they are protecting the nation from people who might want to do it harm."
Downs pointed out that if the government was actually concerned about the rule of law it would prosecute politicians and other prominent Americans who have publicly spoken out in support of Mojahedin-e Khalq (MEK or People's Holy Jihadis), an armed group on the State Department terrorism list that carries out terrorist attacks inside Iran. They include former New York City Mayor Rudy Giuliani, former Pennsylvania Gov. Ed Rendell, former U.N. Ambassador John Bolton, former Vermont Gov. Howard Dean, former Homeland Security Secretary Tom Ridge, former Attorney General Michael Mukasey, former homeland security adviser Frances Fragos Townsend, former FBI Director Louis Freeh, former Joint Chiefs of Staff Chairman Gen. Hugh Shelton, and Gen. James Jones, who was President Obama's first national security adviser. Some of them voiced their backing in speeches for which they were paid lavishly.
"Their support of MEK is far worse than any of the pre-emptive prosecution cases," Downs said. "They are literally engaged in material support for terrorism. But of course they're not being prosecuted. ... The whole thing is a game."
The corruption in the judiciary, Downs argues, is so pervasive that it is probably irreversible in the short run. Already dissidents such as peace activists, environmentalists and outspoken intellectuals have been treated as terrorists. Downs expects soon to see labor organizers and those in Occupy encampments treated as terrorists, especially if domestic dissent spreads. Yet despite his pessimism he has no intention of surrendering.
"I take comfort from organizations like the White Rose in Germany," he said, referring to the anti-Nazi group that defied Hitler and saw most of its members arrested and executed. "They were doomed almost from the beginning. How long could you defy Hitler before you were rounded up and shot? It appeared to be a futile effort. And yet, after the war, when people went back and began to rebuild the German nation, they could look to the White Rose as an example of what German culture was really about. There were Germans who cared about peace, freedom and tolerance. I'm working now as much for the historical record as for those still in jail."
As for his defendant, he says "But one day, America will change... They will look back on how the government spent millions of dollars to imprison me as a 'terrorist,' yet if we were to somehow bring Abeer al-Janabi back to life in the moment she was being gang-raped by your soldiers, to put her on that witness stand and ask her who the 'terrorists' are, she sure wouldn't be pointing at me."