In America’s post-9/11 zeal for elevating terror suspects to the status of supermen, existentially threatening the very life of the United States in an unprecedented manner (rather than managing one massive attack on the US through the intelligence agencies’ inability to communicate with one another), Guantánamo, Bagram, Abu Ghraib and the CIA’s torture dungeons are not the only places where the rule of law was shredded.
With the exception of Guantánamo, none of the prisoners held in the facilities mentioned above had, or have had access to lawyers, or to the full protections of the Geneva Conventions, but even in dealing with the cases of the men in Guantánamo, who have secured three Supreme Court victories in their favor, judges are not empowered to order the release of prisoners who win their habeas corpus petitions, and justice for some will only be delivered, if at all, in a trial by Military Commission — a second-tier judicial system, exclusively for foreign terror suspects, that was recently revived by the Obama administration and by Congress, even though its earlier incarnations were an almost unmitigated failure.
Opponents of the Military Commissions have long pointed out that federal courts have a proven track record of successfully prosecuting terrorists. This is a powerful argument against the Commissions, of course, which look set to face innumerable unknown and unexpected hurdles as they stumble back to life this week. However, to cast a critical eye on the federal courts, for a change, terror suspects face a system that often seems to have been specifically designed to hand down punitive sentences for “associations” with terrorists that range from the flimsy to the risible. This was demonstrated on Tuesday, when Syed Fahad Hashmi, a US citizen, accepted a plea bargain and admitted to conspiring to provide material support to terrorism on the eve of his trial.
Describing the breadth of the material support charges endorsed by Congress, Jacob Sullum explained in the most recent edition of Reason magazine:
Under the law, it is a crime to provide an organization on the State Department’s [List of Designated Foreign Terrorist Organizations] with “training,” defined as “instruction or teaching designed to impart a specific skill”; “expert advice or assistance,” defined as “advice or assistance derived from scientific, technical or other specialized knowledge”; “personnel,” which means any person, including oneself, who works under the organization’s “direction or control”; or “service,” which is not defined at all.
Or, as Jeanne Theoharis described it in an article in Slate on the eve of Hashmi’s intended trial:
Material-support laws are the black box of domestic terrorism prosecutions, into which all sorts of constitutionally protected activities can be thrown and classified as suspect. The law defines material support as the knowing provision of “any service, training, [or] expert advice or assistance” to a group designated by the federal government as a foreign terrorist organization. The prosecution need not show an actual criminal act, just the knowing “support” to a group designated a terrorist organization. It’s a prosecutor’s dream: You don’t need to show evidence of a plot or even a desire to help terrorists to win a conviction — a low bar the standards of traditional criminal prosecution would not allow.
Both the Bush and Obama administrations have relied on the statute’s vague nature — what the Bush Department of Justice described as “strategic overinclusiveness” — to criminalize a wide range of activities. Operating by the logic of preventive prosecution, material-support charges often target small acts and religious and political associations, which take on sinister meaning as ostensible manifestations of forthcoming terrorism.
In Hashmi’s case, it seems probable that he accepted a plea bargain on the eve of his trial because, as a result, he will receive a sentence of 15 years compared to the 70 years that he was facing if convicted. This is in spite of the fact that the only charges against him are that in 2004, while he was living in London as a student, Junaid Babar, an acquaintance of his from Queens, who stayed with him for two weeks, “had luggage containing raincoats, ponchos, and waterproof socks (what the government terms ‘military gear’) and that later Babar delivered these materials to the third-ranking member of al-Qaeda in South Waziristan, Pakistan. In addition, Babar borrowed Hashmi’s cell phone and then allegedly used it to call other conspirators in terrorist plots.”
The quote above is from the article by Jeanne Theoharis, who taught Hashmi in a seminar on human rights at Brooklyn College in 2002, prior to him receiving a B.A. and then traveling to London to take a master’s degree at London Metropolitan University. Theoharis also explained that Hashmi was “[a] critic of US foreign policy and its treatment of Muslims, [who] held the rather optimistic view that you could change people’s minds by talking and arguing with them. He could often be found in the hall before and after class debating other students. For my seminar, he wrote a research paper on the abridgement of the civil liberties of Muslim-American groups in the United States after 9/11.” She added, poignantly, “Now it is his rights that have been violated.”
Even if the government’s case was genuinely sound, rather than being a chilling demonstration of why offering hospitality to an acquaintance — any acquaintance — should be avoided after 9/11, there are serious doubts about the reliability of the supposed evidence incriminating Hashmi in providing space for his house guest’s luggage and allowing him to borrow his phone, because it comes directly from Junaid Babar, who, as Theoharis also explained, “was himself subsequently arrested on material support charges and has agreed to testify in a number of cases in exchange for a much-reduced sentence.”
Moreover, Hashmi has been treated appallingly since he was first arrested in the UK on June 6, 2006, after the US authorities requested his extradition. In the UK, he was imprisoned as a Category A, high security prisoner in Belmarsh prison (where other foreign terror suspects are held, pending deportation, on the basis of secret evidence) until March 2007, when the High Court approved his extradition. Since his arrival in the US, he has been held in conditions that are only marginally less severe those under which US “enemy combatants” Jose Padilla, Ali al-Marri and Yaser Hamdi were held during the Bush administration, when each was imprisoned without charge or trial in strict solitary confinement in the Consolidated Naval Brig in Charleston, South Carolina, and subjected to variations on the administration’s torture program that, in Padilla’s case, were so severe that he apparently lost his mind.
As Jeanne Theoharis explained:
Hashmi’s pre-trial detention — nearly three years of solitary confinement –has been served in severe isolation under Special Administrative Measures imposed by the Bush administration and then renewed by the Obama administration. The federal government created SAMS in 1996, at first to target gang leaders and mafia bosses in cases where “there is a substantial risk that an inmate’s communication or contacts with persons could result in death or serious bodily injury to persons.” After 9/11, the DoJ relaxed the standard for imposing a SAM and expanded their use. In Hashmi’s case, the government cited his “proclivity for violence” as the reason for these harsh measures — even though he has no criminal record and is not being charged with committing an act of violence.
The result is that Hashmi is allowed contact only with his lawyers and his immediate family — one visit by one family member every other week for one and a half hours. His cell is electronically monitored 24 hours a day, so he showers and relieves himself in view of the camera. He cannot receive or send mail except with his immediate family. He cannot talk to other prisoners through the walls or take part in group prayer. He is allowed one hour of exercise a day, in a solitary cage without fresh air. These conditions have degraded his health — in pre-trial hearings, he appears increasingly withdrawn and less focused — and have interfered with his ability to participate in his own defense.
Before the trial, Theoharis and Fayad Hashmi’s many supporters had pointed out how the prosecution was trying to rig the proceedings, with the government asking for jurors to be anonymous and kept under extra security (a request that was granted by Judge Loretta Preska) in a filing in which the government’s lawyers claimed that “jurors will see in the gallery of the courtroom a significant number of the defendant’s supporters, naturally leading to juror speculation that at least some of these spectators might share the defendant’s violent radical Islamic leanings.”
With this in mind, Fayad Hashmi may have decided that a plea bargain provided his only opportunity to avoid a 70-year prison sentence, but whatever the truth, his treatment over the last four years, and the paucity of the evidence against him, appears only to demonstrate that the overreaction of the Bush years in relation to the perceived terrorist threat is as exaggerated as ever.