Is it Islam that’s ‘Inherently Intolerant’ or is it American Society?

An account of the sentencing of Fahad Hashmi, an American citizen sentenced to 15 years for aiding al-Qaida.

By Madeleine Dubus

June 30, 2010

On June 9 at 3:30 p.m. over a hundred people lined the halls outside a courtroom at the U.S. District Courthouse at 500 Pearl Street in New York City to witness the sentencing of Fahad Hashmi, an American citizen accused of providing support to al-Qaida.

A court clerk paced past the line, occasionally yelling to the crowd that the courtroom could only fit 50 people. Those who stood in line but couldn’t make it into the courtroom had to go to a second room to watch the proceedings on a live video stream. Those that filtered off the elevator to stand in line were an eclectic mix of women in hijaab, college students, and young professionals who left work early to attend. Eventually, a third room was opened to accommodate the overflow of viewers. Some of those who came to Hashmi’s sentencing knew him at one point, before all this began. Others were strangers who came to simply show solidarity.

While Hashmi’s supporters and other viewers waited for the courtroom to open, Faisal Hashmi, Fahad’s older brother, walked up and down the line greeting friends and family. Faisal is a tall man, but on this day he walked with his shoulders slumped, diminishing his stature. He carried his one-year-old son, pausing frequently to kiss his cheek and whisper in his ear. Faisal’s son nestled next to his father’s long beard, but since Fahad Hashmi has been in captivity for more than three years, he has never met his nephew.

Hashmi is something of a guinea pig in post-Sept. 11 criminal justice. He has spent the past three years in solitary confinement, the last two–and-a-half under Special Administrative Measures (SAMs), which allow the prison to limit or entirely cut off his communication to other prisoners, his lawyers, and keep him under 24 hour video surveillance. Hashmi decided to plead guilty on April 24 to one count of supplying material support to Al-Qaeda, realizing that pleading guilty would cap his maximum sentence at 15 years compared to the 70 years he could face were he to plead innocent and lose.

Hashmi’s story goes back to 2006, when he was arrested at Heathrow airport. At the time, he was a grad student in London, and he had granted an old acquaintance, Junaid Babar, permission to stay in his flat. The government alleges that Babar brought luggage containing “military gear” used by al-Qaida into Hashmi’s apartment and used his mobile phone to call other conspirators in Pakistan.

Later, Babar was arrested for providing material support to third-ranking al-Qaida members in Pakistan. But in a deal with the FBI to greatly reduce his sentence, Babar became an informant and named numerous acquaintances he had contact with in recent years, including Hashmi. Today, Babar is free and will most likely spend the rest of his life in the Witness Relocation Program.

Meanwhile, Hashmi’s future is grimmer. The severity of his treatment and the extent of his solitary confinement, before his case even went to trial, have called attention to the United States’ ethics in terrorism cases and what constitutes torture.

Eventually, those in the courtroom were seated and quiet. Hashmi, flanked by his two lawyers, entered. He looked gaunt and skinny and wore a long white Kurta shirt. His head was adorned with a simple, embroidered Kufi, the traditional cap worn by Muslim men.

Hashmi’s lawyer, David Ruhnke, spoke first and cited the time Hashmi has already served in prison. Ruhnke argued what occurred in his London flat was not intended conspiracy, and that Babar was the primary player in the case.

While his lawyer spoke, Hashmi hunched at the defendant’s table arranging papers in quick, halted movements. He was preparing to recite his personal statement, waiting to speak publically for the first time in years. Within seconds of beginning, the judge, Loretta A. Preska, asked Hashmi to stop and slow down.

“I have a bad habit of speaking fast,” Hashmi told Preska. “I have no one to talk to because of the [special administrative] measures.”

Hashmi began again. First, he thanked his supporters and asked Allah and his family for forgiveness for the pain he’s caused saying, “I pray inshallahthat I will return to you in a better condition.”

Only a few sentences into his statement, Hashmi broke down in tears.

“I have made many, many mistakes,” he cried.

Once he was able to speak again, Hashmi said he has a better understanding of himself and began to relate what happened in London. When Babar came to his door Hashmi says that at first he told him he could not stay with him, but Babar “imposed himself.”

“I was in a strange land,” Hashmi said, and said that despite not wanting Babar to stay, Hashmi says he felt Babar was a familiar face. Islam teaches the importance of charity, and Hashmi says he felt he was obligated to help a fellow Muslim.

What he didn’t know, Hashmi says, were Babar’s full intentions. Hashmi contends that he believed him when he said that the phone calls Babar made were to Babar’s wife in Pakistan regarding the couple’s sick daughter. He believed Babar’s story of an ailing daughter and lent him a conservative amount of money to help. He says there was only a small amount of clothing with Babar that could be considered gear for terrorists, not the suitcases full that Babar himself alleged.

Ultimately, Hashmi concludes his greatest mistake was being under “the false impression that it was something Islam allowed me to do.” He since realized that Babar was an “evil man” and that he was not obligated to show him charity under Islamic law.

Hashmi emphasized his connection to his American roots and community and his regret for doing anything that opposed American law. He also touched on the oppression facing Muslims in America today, from the extreme treatment in his own experiences to the more widespread surveillance, suspicion, and discrimination Muslim-Americans face daily. He, like many others in the Muslim-American community, hope this will change.

At the end of his speech, as he succumbed to tears once more, his voice faltering, Hashmi said, “The one who is truly imprisoned is the one whose heart is away from Allah.”

Once Hashmi finished his speech, prosecutors argued that he was a product of Islam, an “ideology of intolerance,” and the sentence he receives should serve as a public deterrence.

Loretta A. Preska, the presiding federal trial judge, gave Hashmi the maximum sentence, 15 years in prison with three years supervised probation.

Hashmi’s comments about intolerance toward Muslim-Americans today resonated with many attendees. Hashmi was pleading with Americans to distance themselves from the fear and hatemongering targeting Muslims that has become common since Sept. 11. After all, according to a 2009 survey by the Pew Research Center, 38 percent of Americans believe Islam encourages violence more than other religions, a statistic that is surprisingly higher than it was in 2002, just after Sept. 11, when it was 25 percent.

This expresses an alarming trend that discrimination and misconception of Muslim culture has built since Sept. 11, implying that it did not derive from immediate spite after the attacks, but from subsequent years of creating a society where vilifying Muslims is expected, is even considered a responsibility for the sake of security. Though prosecutors seemed to agree with the 38 percent of Americans, indicating that Islam is an inherently violent religion, Americans should consider whether it is the post-Sept. 11 culture that has become the product of an “ideology of intolerance.”

Today the country we live in is not what America should be, a place where suspicion and prejudice is an excuse to forget that all men are created equal, to torture and depreciate, and to put lives to waste.

Madeleine Dubus is a staff writer for Campus Progress. She graduated from the New School this spring.

http://www.campusprogress.org/opinions/5804/is-it-islam-that-s-inherently-intolerant-or-is-it-american-society

A License to Witch-Hunt

A Supreme Court decision on the Patriot Act shows where Barack Obama stands.

http://socialistworker.org/2010/06/23/license-to-witch-hunt

June 23, 2010

THE U.S. Supreme Court has upheld a part of the USA PATRIOT Act that criminalizes free speech as “terrorism”–and the Obama administration, which was expected to stop its predecessor’s assault on the Constitution, is celebrating the decision as a victory.

The 6-3 decision of the court, announced June 21, upholds a portion of the 2001 Patriot Act that classifies some speech and other “intangible assistance” as material aid to terrorists.

The justices agreed with the arguments of the Obama administration–specifically, its choice to sit on the Supreme Court, former Solicitor General Elena Kagan, who made the White House’s case before the court.

The administration opposed a lawsuit brought by the Humanitarian Law Project that challenged the law’s provision that prohibits material support–specifically the giving of “expert advice or assistance”–to groups designated as “terrorist” by the U.S. State Department.

The law project wanted to provide advice to two groups–the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party–on peacefully resolving disputes and working with the United Nations. But in his opinion justifying the decision, Chief Justice John Roberts said that the motives of the Humanitarian Law Project didn’t matter, and any assistance to a group on the State Department’s terrorism list represented “material support.”

The consequences of the ruling are far-ranging, as the New York Times pointed out [2]:

The court at least clarified that acts had to be coordinated with terror groups to be illegal, but many forms of assistance may still be a criminal act, including filing a brief against the government in a terror-group lawsuit.

Academic researchers doing field work in conflict zones could be arrested for meeting with terror groups and discussing their research, as could journalists who write about the activities and motivations of these groups, or the journalists’ sources. The FBI has questioned people it suspected as being sources for a New York Times article about terrorism, and threatened to arrest them for providing material support.

In a strong dissent, Justice Stephen Breyer, supported by Sonia Sotomayor and Ruth Bader Ginsburg, said the court’s majority was too willing to believe the government’s argument that national security concerns required restrictions on speech and had “failed to insist upon specific evidence, rather than general assertion.”

As David Cole, a lawyer with the Center for Constitutional Rights, told the Times, “This decision basically says the First Amendment allows making peacemaking and human rights advocacy a crime.”

On an individual level, the ruling strengthens the government’s ability to pursue the kind of witch-hunts carried out against Palestinian professor Sami Al-Arian or Pakistani student Syed Fahad Hashmi, two of the approximately 150 defendants that the government has charged with violating the material-support provision since 2001.

In Hashmi’s case, after enduring nearly four years in solitary confinement, he agreed to plead guilty to a single count of material support for the “crime” of helping an acquaintance store and transport ponchos and waterproof socks that allegedly ended up with al-Qaeda organizations in Pakistan. For this, he has been sentenced to another 15 years in prison.

But the lawyers who argued the case pointed out that the impact goes further–the Patriot Act’s material-support provision is so vague that humanitarian groups and journalists and their sources can be ensnared.

Some legal theorists believe the law is so broad that it could be interpreted as criminalizing any speech that could be said to give legitimacy to a terrorist group–for example, those who support the right of Hamas to lead the Palestinian Authority (after being democratically elected), even though the organization is on the State Department list. That’s because, as Breyer pointed out in his dissent, the law could have made a distinction between “when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions” and when they don’t–but it fails to do so.

“Instead,” as lawyer Wendy Kaminer noted in The Atlantic [3], “the majority gave the administration a blank check to criminalize political speech specifically intended to advance peace.”

The ruling also fails to acknowledge that there are almost no checks on the ability of the State Department, under the direction of the Secretary of State, to designate groups as “terrorist”–and that those decisions are often based on political calculations.

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THIS RULING will be seen as another win for the Supreme Court’s right wing, now led by Chief Justice Roberts, a Bush appointee. But it’s also claimed as a victory by the Obama administration–and in particular, its former Solicitor General and current Supreme Court nominee Elena Kagan, who argued the government’s case in February.

Kagan has been criticized as too liberal by some conservative Republican senators, but this case shows she fits in squarely with the majority of justices who support expanding presidential power at the expense of our rights.

In fact, that’s one of the reasons she was chosen to join the court. She agrees with the Obama administration’s fundamentally conservative position on these “war on terror” issues.

Barack Obama was expected by millions of people who voted for him to challenge George Bush’s shredding of the Constitution. But a year and a half into his presidency, not only is the U.S. prison camp at Guantánamo Bay still up and running, but the Obama White House has explicitly upheld Bush administration policies on trial by military commissions, rendition of prisoners to allied regimes where torture is legal, warrantless wiretapping and the use of executive powers to hinder the prosecution of U.S. officials for illegal acts.

One of the latest outrages is the case of Yemeni detainee Mohamed Hassan Odaini. The government has concluded that Odaini did nothing wrong–but the Obama administration has refused to release him, and instead has fought vehemently in court to keep him imprisoned at Guantánamo. As Salon.com’s Glenn Greenwald wrote [4]:

[T]he Obama administration is knowingly imprisoning a completely innocent human being who has been kept in a cage in an island prison, thousands of miles from his home, for the last eight years, since he’s 18 years old, despite having done absolutely nothing wrong…

If you’re willing to work to keep a person whom you know is innocent imprisoned, what aren’t you willing to do? What decent human being wouldn’t be repulsed by this? I don’t care how many times someone chants “Pragmatism” or “The Long Game” or whatever other all-purpose justifying mantras have been marketed to venerate the current president; these are repellent acts that have no justification.

Of course, none of this is new for the Obama administration; it’s consistent with their course of conduct from the start.

The lesson here is that Barack Obama and the Democrats may have talked a different talk about civil liberties on the campaign trail, but they are committed to the same vicious policies as their predecessors. The Obama administration is willing to curtail all of our civil liberties in pursuit in the name of what was once Bush’s “war on terror”–but is now wholly Obama’s.

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1. [1] http://socialistworker.org/department/Opinion/Editorials

2. [2] http://www.nytimes.com/2010/06/22/opinion/22tue1.html

3. [3] http://www.theatlantic.com/national/archive/2010/06/material-support-bans-and-the-criminalization-of-political-advocacy/58469/

4. [4] http://www.salon.com/news/opinion/glenn_greenwald/2010/06/21/pundits/index.html

5. [5] http://creativecommons.org/licenses/by-nc-nd/3.0

From the Family of Fahad Hashmi

June 10, 2010

A chapter has closed in our brother Fahad’s ordeal with the United States government. Yesterday’s sentence reflects a harsh imposition of 15 years in prison. The proceedings were a clear indication of the government’s gross exaggeration, distortion of facts, and fear-mongering to serve their purposes. Before he was sentenced, Fahad was allowed to speak, his first public statement since being arrested 4 years ago. In his speech, he expressed his gratitude to all his supporters, Muslim and non-Muslim, for their work on his behalf and commitment to seeking justice, took responsibility for his actions, and questioned the government’s treatment of him and Muslims more broadly.

Fahad’s case reveals the reign of tyranny that the government has imposed on its Muslim population. A vague and fickle material support statute has been used to criminalize Muslims–and particularly the political and religious associations of Muslims. The statute itself is over reaching and compromises the First Amendment freedoms of speech and association. It is the subject of criticism by human and civil rights organization and a recent Supreme Court case.

The severe solitary confinement imposed on Fahad is what many experts have defined as one of the worst forms of torture. Such pre-trial isolation is punitive and used to break the human psyche. The (SAMs) Special Administrative Measures Fahad was put under make torture sound like a harmless bureaucratic act. It is in fact an act of malice manifested. Fahad’s solitary confinement was applied under the presumption of innocence, yet this presumption is often discarded when it comes to Muslim defendants. The Muslim population is the victim of due process violations that lead them to the conclusion that there is an apparent and pronounced double standard within the Federal system.

This case–and the organizing around it– have been a watershed moment to shine a light on the larger treatment of the Muslim population. Agent provocateurs besiege our communities to entrap our population; illegal and pervasive surveillance have grown commonplace. The government sows fear about our community as something radical and violent while Muslims in this country are witnesses to some of the most horrendous acts against Muslims at home and abroad. Torture and prisoner abuse at Guantanamo, Abu Ghraib, and the MCC in NYC are only examples. The language is clever to define radicalism in very broad terms so any sign of Muslims increasing faith or criticizing the US government is inherently a sign of radicalism. The “see something say something” paradigm fosters this atmosphere of mistrust and hate.

There is clearly a clever and inflammatory campaign on Islam and Muslims and it is having a devastating effect on families and communities across the country. It is necessary for the government to change its stance, and policies regarding treatment of Muslims. As we have shown through this case many Muslims and non-Muslims will not be silenced about these rights abuses and will demand justice, fairness and humane treatment.

STATEMENT OF THE FAMILY OF SYED FAHAD HASHMI

America’s Non-Compliance

Gareth Peirce presents the case against extradition

During the first months of this year, the embers of a long running legal controversy have reignited in the United States. ‘Of all the issues,’ Rahm Emanuel was told by the senior Republican senator for South Carolina, Lindsey Graham, ‘this is the one that could bring the presidency down.’ The ‘issue’ is whether and where to try several dozen Guantánamo prisoners, in particular Khalid Sheikh Mohammed and four others accused of the 9/11 conspiracy. Should they be tried in a military commission or in a federal court? Bush administration lawyers say the obvious solution is not bothering to try them at all, while Senator Graham’s view is that it is inappropriate to hold civilian criminal trials for persons suspected of involvement in terrorism.

Late last year, Obama’s administration decided that Khalid Sheikh Mohammed and the others would be tried in the New York federal district court in Manhattan; six would face military commissions in a place yet to be decided; and 48 others (the number is undoubtedly higher) would be held indefinitely without charge. Obama had asked the US attorney general, Eric Holder, to make the decision ‘in an effort to maintain an independent Justice Department’, but is now reported to be centrally involved himself, recognising that his administration had miscalculated the political fallout. Graham has been trying to reach a deal with the White House over the attorney general’s head, trading Republican support for the closing of Guantánamo in exchange for a military trial for Khalid Sheikh Mohammed. At stake is not just whether the man known as KSM and his co-conspirators receive a civilian court trial, but the legal fate of all terrorism suspects, the future of the Guantánamo Bay detention facility and the credibility of the US attorney general. This is dangerous ground for politicians and for lawyers.

The debate, portrayed as a battle between constitutionalists, who argue for jury trials, and hardliners, who want no such thing for men accused of terrorism, exposes serious shortcomings in the protections that constitutionalists contend would be in force if ‘civilian justice’ were achieved for these suspects. For a start, the determined political involvement in court proceedings undermines any claim to a clear separation between the judicial and executive branches of state in the US.

This battle has broken out just as decisions are about to be made in the European Court of Human Rights in Strasbourg on the extradition of a number of men whose cases led a court in London six years ago to state that no suspect should ever be extradited to the US if there were any risk that he might face trials of the sort that are now being argued for. Military commissions are not the only issue: many of America’s basic criminal justice practices – how and where it tries those accused of crimes, how it obtains evidence, how it prosecutes and treats its prisoners – have, since 2004, been exposed to investigation, first by courts in London and then in Strasbourg. The scrutiny has been made necessary because the US wants to try a number of men, almost all of them British, but their extraditions from the UK have been frozen while the courts determine whether there is a serious risk that sending them to the US would be to deliver them up to flagrantly unfair trials, severe and prohibited ill-treatment, or the death penalty.

In the white heat of 9/11, Cheney, Rumsfeld and Bush considered the concept of due process irrelevant as they ransacked the world in search of suspects. Seeking justification they conjured up new definitions. An ‘enemy combatant’ was any individual judged to be actively aligning himself against America; ‘military commissions’ were constructed to deal with combatants thus defined. In parallel, America’s ambition to extend its jurisdiction grew. A number of individuals, arrested in the UK, were astonished to learn that activities they had undertaken years before offended against US law. Two of those individuals, Babar Ahmad and Syed Talha Ahsan, had before 9/11 contributed in the UK to a website which, several years later, came to be construed by US prosecutors as having supported the Taliban; their misfortune was that the service provider for the website was located in Connecticut. A third, Haroon Aswat, had in 1999 spent two weeks on a farm in Oregon, where it had been suggested that military training for Muslims would be held (it never materialised). Two more, Adel Abdel Bary and Khalid al-Fawwaz, one of whom had in 1998 received faxes in an Islamic information office in London reporting that two US embassies in East Africa had been bombed that day, were charged with conspiring to cause those explosions. These individuals discovered, with equal astonishment, that the basic propositions put forward by the US prosecutor in their cases had a further dire consequence: they fell into a category created by Bush to deal with the ‘worst of the worst’.

In each case, the extradition court, at Bow Street in London, swiftly found that the extraditee, by virtue of the breadth of the US definition, ‘would meet the criteria which would permit the president of the United States to make an order designating the defendant as an enemy combatant’, and thereby liable to be tried by a military commission. A military court, even if all its proceedings are identical with those in a conventional trial, cannot meet the mandatory European Convention requirement of judicial independence. Its judges are military employees within a hierarchical structure headed by their commander-in-chief, the president: there is no separation between the executive and the judiciary. As a result, the judge at Bow Street decided that any individual who ran a serious risk of being designated as an enemy combatant would lose his due process rights to a fair and public trial before an independent tribunal. If a man could be detained indefinitely ‘subject to Military Order No. 1’, it meant he would be ‘deprived of his European Convention rights and extradition would be barred’.

The extradition requests would then have been dropped but for a flurry of diplomatic notes in which the US Embassy in London assured the UK government that the defendants would not be prosecuted before a military commission, or treated as enemy combatants: they would instead be tried before a federal court ‘in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges’.

Each of these extradition cases has subsequently been considered on these issues, on the value of such assurances and their limitations, first by Bow Street, then on appeal to the High Court in London. Ultimately, the UK’s decisions fall to be externally judged in Strasbourg and by the sometimes exacting standards of the European Convention on Human Rights, where these cases and others have now been stalled for nearly three years. Could an unenforceable diplomatic promise hold good, in law or in practice, after the men have been extradited? And what action, if the men were tried before a jury and acquitted, might the US take if it nonetheless believed the defendants constituted a threat?

The concept of its own conformity with international legal principles being exposed to outside judgment is entirely alien to the US. When, for instance, Jordan refused to endorse the exemption of Americans from trial in the International Criminal Court for crimes against humanity, the US immediately threatened to withdraw its contribution of one-fifth of Jordan’s annual budget. The Jordanian parliament promptly revoked its decision. More than half a century after the nation-states of the world committed themselves to a significant chain of treaty obligations intended to permit external scrutiny of their internal compliance with those treaties, America continues to maintain a remarkable isolationism. It opts out, not of the treaties, but of the provisions that allow inspection and sanction – the teeth of enforcement. While it is a party to the UN Convention against Torture, it has never ratified the treaty’s optional protocol, and it doesn’t accept the right of individual petition to the Committee for the Prevention of Torture. In those countries which have signed up, UN special rapporteurs on torture carry out unannounced inspections, intended to get behind the façade of impressive constitutions. They dig out grim truths and their reports are often biting and always public. America doesn’t even accept the application of its own regional American Convention on Human Rights, which it signed but has never ratified. Thus no individual in the US can have recourse to the Convention’s enforcement body, the Inter-American Court on Human Rights. Petitions can be sent to the Inter-American Commission on Human Rights, but its reports are not binding and findings are consistently ignored.

Although some US commentators give Obama credit for trying to demonstrate that the executive branch can wage war while also respecting the limits imposed on presidential power by the rule of law, that is not how it appears to the outside eye. When, in February 2009, a federal judge overseeing the cases of Guantánamo detainees asked whether the new administration wanted to modify the Bush position that the president could imprison people indefinitely without trial, Obama’s Justice Department maintained the position that it could do so, if those persons were part of al-Qaida or its affiliates or their substantial supporters. This reinforced what the extraditees and their lawyers had argued, first before the UK courts and then in Strasbourg: there was strong jurisprudential doubt whether any diplomatic note could bind any future US commander-in-chief if national security were perceived to be at stake.

Acknowledging, in an interview with the Washington Post, the possibility that trials may be switched to military commissions, the attorney general attempted to rationalise the position: ‘At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it’s done as transparently as possible and with adherence to all the rules. If we do that, I’m not sure the location or even the forum is as important as what the world sees in that proceeding.’ In fact, ‘what the world sees’ is of little consequence. The US is accustomed to filtering out external opinion, and will judge for itself whether or not it has adhered ‘to all the rules’, since it exempts itself from sanction when its actions fail to comply with international standards.

External observers, including men arrested on warrants for extradition to the US (as well as defence lawyers and no doubt many prosecutors), had watched with alarm in the years after 9/11 as José Padilla, a US citizen, and Ali Saleh al-Marri, a Qatari student in the US, were moved back and forth between conventional criminal trials before juries and military detention (they were held in a naval brig in Charleston, South Carolina, where they found themselves subjected to the same ill-treatment as others in secret sites around the world). Although at least one senior State Department lawyer, Harold Koh, maintains that the new administration’s changes mean that the United States can now claim that its national security policies are fully compliant with domestic and international law under ‘common and universal standards, not double standards’, the administration, unnerved by the political backlash, is swiftly beating a retreat from its early insistence on civilian trials and considering the retention of indefinite detention without trial. Perhaps most chillingly, it seems not to appreciate that almost every basic safeguard necessary to achieve a conventional fair trial for the accused has, in practice, long since been destroyed in the US.

Neither nation-states nor their courts are accustomed to stand in one another’s way when a request for extradition is made concerning a person described, however inappropriately, as a ‘fugitive’. Extradition arrangements originated in the ancient world as a practical way of demonstrating courtesy and goodwill between sovereigns. The language of governments and of the courts continues to be deferential, speaking of effective relations between sovereign states. ‘It goes without saying that [the United States] will be true to its constitution,’ the High Court asserted in Babar Ahmad’s case. But the assurances given by the US since 2001 should have been greeted with more scepticism. Twice the foreign secretary has had to come before Parliament to apologise for the fact that US promises concerning rendition had not been kept; and in 2008 the Select Committee on Foreign Affairs recommended that US assurances should no longer be accepted, given the country’s continuing denials that its interrogative practices met the universal definition of torture.

No assurances at all, fragile or not, are on offer to protect against the threat that extraditees, even if acquitted, might be subjected to rendition or indefinite detention, or the grim reality of solitary confinement in a small sealed prison cell before and after trial, or against sentences that could amount to a hundred years. No assurances against the threat that any or all of these possibilities might induce guilty pleas from the innocent as well as a promise to ‘co-operate’ in providing evidence with which to prosecute others. More than one extraditee still in the UK has been visited by a US prosecutor armed with a copy of the Federal Sentencing Guidelines. These sentences, of more than any man’s natural life expectancy are, the prisoners are told, ‘the facts of life’. The lawyers of Gary McKinnon (alleged to have hacked into the Pentagon computers), offered the opportunity of a guilty plea, were told that should he refuse, once in America he would ‘fry’. More than 90 per cent of trials in the US are resolved by guilty pleas, an extraordinary statistic that is undoubtedly a result of the defendants’ apprehension of what lies ahead – not just for the ‘worst of the worst’ – and their desire to avoid, at any cost, the risk of US law’s most extreme application.

Each extraditee can picture himself, once in the US, in the position of those witnesses for the prosecution he now sees ranged against him. Improper pressure to achieve the co-operation of witnesses for the prosecution is loudly denied, but why then does the plea agreement for the co-operating (and only) witness against one extraditee, Haroon Aswad, contain the provision that, if he were to fail to continue to co-operate, ‘the United States would be free to exercise all rights it may have to detain the defendant as an enemy combatant’ and to return him to total isolation under the much feared Special Administrative Measures? And why did the co-operating witness’s attorney, in communications with other lawyers which form part of the extradition court’s record, write (before his client had agreed to give evidence against others): ‘As it turns out, one of the key witnesses against my client is a British citizen who’s being held at Guantánamo Bay as an enemy combatant’? Thus the dominoes fall one by one. Later, after the London court’s decision in 2005, he wrote again:

It’s pretty apparent the good guys were winning until the diplomatic note showed up. What a pity. I did find … aspects of the ruling especially entertaining … that the magistrate somehow thinks a diplomatic note stating that the US won’t try this guy in military court will bind the president. Since when has our president – the greatest international scofflaw of our time – ever felt bound by any diplomatic accord?

For two of those awaiting extradition, Adel Abdel Bary and Khalid al-Fawwaz, there is an additional irony. They have watched with astonishment what has happened to their co-accused, Ahmed Ghailani, who, it is now proposed, will be tried with them in Manhattan and whose pending trial is intended by the authorities to have ‘a two-pronged effect; justice will be done and the credibility of the courts will be re-established’.

A warrant for Ghailani’s arrest was issued by the New York Federal District Court in 1998: he’d been indicted for involvement in the East Africa bombings of US embassies in that year. In January 2005 his captors reported from Pakistan that he had been handed over to the United States ‘several months ago’. He was then held as a ghost prisoner in a secret prison run by the CIA. Reported by Human Rights Watch to be one of the significant ‘disappeared’, he finally emerged in 2006, but not in the Manhattan court; instead, on the precise basis of the indictment issued by the New York court in 1998, he was placed on trial before a different kind of court, a military commission in Guantánamo Bay, where charges were filed by military prosecutors for the bombing of the US Embassy in Tanzania. ‘Officials were aware of the 1998 civilian indictment,’ their spokesman, General Hartmann, explained, but were proceeding with a military case at Guantánamo. ‘That is the avenue the president, the Congress and the Department of Defense established to deal with alleged war crimes in connection with the global war on terror.’ Each development served to confirm the worst fears of Ghailani’s co-accused in the UK. Their co-defendant was to be tried within a system specifically constructed to remove from him that ‘full panoply of rights’ assured to them, as well as to remove access to him by others. The United States had chosen to split the trial: half – Ghailani’s trial – was to be conducted in Guantánamo in secret session, outside the conventional rule of law, and half in Manhattan.

Ghailani’s position was to change yet again, however. In spring 2009 he was moved from Guantánamo into the civilian court system and transferred to New York to stand trial before the Federal District Court in Manhattan. Meanwhile, deep into its consideration of the extradition cases in Strasbourg, the European Court asked the UK government to provide some evidence: ‘If extradited, approximately how long would the Applicants spend in pre-trial detention?’ A simple response was given: the US constitution guarantees the right to a speedy trial. But what of Ghailani, who disappeared into a secret prison in 2004 and did not surface for trial until five years later, and then only after the abandonment of plans to try him before serving soldiers at Guantánamo Bay? His lawyers in New York assert that in those years he was submitted more than a hundred times to techniques ‘amounting to torture’ and ‘appears to be so damaged’ by his treatment that his ability to assist them in preparing his defence has been harmed.

From the perspective of the European Convention the future of the extraditees begins to appear as not just political but legal pandemonium. The guarantee that they will have a fair trial is in grave doubt. There is no reticence in America in commenting on an arrest, a trial, or the evidence the prosecution claims loudly, from the outset, to possess. In the UK, the inhibiting Contempt of Court Act demands that any reporting that might influence a jury be prohibited; the flurry occasioned by arrest and charge, even in the most dramatically newsworthy cases, is immediately silenced until the trial begins. In the US the reverse is the case; the concept of freedom of speech as it has evolved permits free-ranging commentary and unlimited coverage. The decision to move Ghailani to the Manhattan court acted as the precursor of the current political storm. The New York Times of 10 February quotes Ghailani’s prosecutors commenting without inhibition: ‘Prosecutors have said that the delays in bringing him into the criminal justice system were justified on national security grounds and did not violate his speedy-trial rights. They said Mr Ghailani was a “long-standing al-Qaida terrorist” and was initially treated as an intelligence asset after his capture. “The United States was, and still is, at war with al-Qaida,” prosecutors said.’ Where in all of the sorry history of this one case does the presumption of innocence rest, as guaranteed by the UN Universal Declaration of Human Rights? Where is there any regard for the US constitutional right to a fair and speedy trial? Where is there respect for the concept of trial by a jury free from prior knowledge or opinion?

Each nation creates its own system of justice. For the European Court of Human Rights, required to address cases from 40 member states, each with a different system (some are inquisitorial, with an investigative juge d’instruction, others adversarial; some have lay juries, others professional judges), achieving a case law of precedent and setting minimum standards through its jurisprudence for Article 6 of the Convention (the right to a fair trial) is more problematic than meeting other minimum norms. Even in a system in which a professional judge makes the ultimate determination, there are taboos concerning public commentary. When a French government minister and the prosecutor publicly asserted the guilt of one defendant, Patrick Allenet de Ribemont, France was held by Strasbourg to have breached his right to a fair trial. How then to achieve a fair trial in the US, where it is open season on every accused, and where the very fact of entitlement to a trial in these cases is the most bitterly fought of current political battles – for the members of any potential jury pool just as much as for politicians?

European courts have themselves often had to consider equally challenging cases. Abdullah Ocalan, the Kurdish leader of the PKK, kidnapped in Kenya by Turkish intelligence agents, was prized as a ‘high-value detainee’ by Turkey, just as Khalid Sheikh Mohammed is by the US. Once captured, Ocalan was held in complete isolation, and his first hearing was before a panel of three judges, one of them a Turkish military officer. At the full trial he was convicted and sentenced to death. The Strasbourg court found against Turkey: Ocalan’s right to a fair trial, guaranteed by Article 6 of the European Convention, had been irretrievably violated by his being held in isolation before the trial and by the military presence at his first hearing, and that in turn vitiated all claims to legitimacy for the sentence of death. His conviction could not stand.

Forced to investigate conditions in the US, and to enlist the help of defence lawyers there in establishing otherwise unreported data, extraditees have come to understand that practice after practice is accepted as standard in America which, in Europe, could risk the prohibition of a trial, or subsequently cause its nullification, or bring an end to the conditions of imprisonment it stipulated. Within a system of criminal justice that for all of us, from a lifetime of watching procedural dramas, seems more familiar than our own, there are profoundly disturbing features which do not accord with the assumptions we continue to maintain, despite the actions of the previous administration, about the constitution of the United States.

Not every shortcoming can be explained as a product of the Bush/Cheney assault on due process rights or a reflection of their enthusiastic embrace of coercive ill-treatment as an investigative tool – an issue that US lawyers, both civilian and military, have in the last decade combined in force with campaigners to resist. Many ugly practices have long been embedded in the day to day operation of the US criminal justice system and their opponents have found it difficult to mount collective sustained resistance to them, and have had no endorsement from court rulings, national or international, to help them.

American defence lawyers tell us, with resignation, that principles we believed prevailed there as here do not have a sound footing in US case law; evidence obtained from a prosecution witness by coercion, for example, cannot be excluded before a jury hears it. A senior counsel representing the United States in the High Court in London explained that US law permits the otherwise unlawful kidnapping of suspects elsewhere in the world, to bring them ‘to justice’ in the US. And every defence lawyer representing those held in isolation before trial has spoken to the Strasbourg court of the bleak hopelessness of the defendant, the deterioration of his mental state and the impotence of lawyers over many years in achieving redress. Those who represent Muslim defendants convicted of involvement in terrorist activity predict with certainty that none of their clients will ever escape from the most extreme forms of isolation American prisons can impose.

We read, year after year, obscene details of executions in the US: most are successful, but there are also descriptions of frustrated attempts, hour after hour, to find a vein to inject. For a long time, the UK had no cause for complacency. Capital punishment was abolished here in 1965, but Britain continued to extradite to countries that retained the death penalty, and would have continued to do so had not the European Court determined in 1989 in the case of Soering v. UK that the ‘death row’ phenomenon, in which a person might spend years awaiting execution while the legal process was exhausted, constituted inhuman and degrading treatment according to Article 3 of the Convention. Since then no European state has been permitted to extradite in the absence of an assurance that conviction would not bring the death penalty.

But what of extradition to a future of total isolation? Can we comfortably, and within the law, contemplate sending men to that fate? Some of the men who currently await extradition are imprisoned in a small unit, where they are at least in the company of other human beings, and within the unit’s limits can talk, argue, study, cook, write, paint or exercise outdoors in whatever sunlight imprisonment in Worcestershire may afford them. This is not luxury. It is deprivation, of family life, of freedom and of hope. But once on American soil these men have been told by US prosecutors to expect total isolation. Each extraditee will be held under Special Administrative Measures until trial and then, on his anticipated conviction, in solitary confinement in a Supermax prison, ADX Florence in Colorado, potentially for life and without any prospect of parole. He will be confined in a cell 7 feet by 12 feet, with a moulded concrete bunk; his food will be delivered through a slot in the door; external communication, even with a doctor, will come via a closed-circuit television in his cell. For one hour in each day, he will be able to visit a small dark pit where he can exercise alone. His fellow prisoners (although he will not see them) will be ‘the most severely psychotic people’ the most experienced analyst of the effects of Supermax confinement, Terry Kupers, has seen in 25 years of psychiatric practice, and he will be likely, since the primary cause is isolation, to become one such himself. His solitary confinement can and perhaps will continue for life.

After his tour of America in 1842 Dickens wrote of the use of isolation in the American prisons he had seen: ‘I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body.’ By the late 19th century, evidence of the devastating effects of solitary confinement on prisoners’ health had surfaced, and in 1890, the Supreme Court, considering the case of a death-row prisoner, echoed the language of today’s doctors: ‘A considerable number of the prisoners fell, even after a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them and others became violently insane; others, still, committed suicide.’ In the 19th century, isolation was intended to provide an opportunity for the redemption of the prisoner’s Christian soul, but Supermax prisons emerged, penologists argue, from a powerful ‘rage to punish’ felt by many politicians and members of the public in the late 20th century. Craig Haney, one of those penologists, believes that the US now celebrates and often demands, rather than lamenting or merely tolerating, official cruelty and the infliction of pain in its criminal justice system. What once passed for ‘penal philosophy’ now amounts to little more than devising ‘creative strategies’ to make prisoners suffer. Supermax confinement, built on the twin pillars of prolonged solitary confinement and extreme severity of conditions, is one of those strategies. The cells are carefully designed by architects to limit access to natural light, to eliminate stimulation or distraction, and reflect a total disregard for the principle that all prisoners are members of the human community. Although one US district court judge, in the case of Madrid v. Gomez in 1995, described conditions in a Supermax unit as pushing at ‘the outer bounds of what most humans can psychologically tolerate’ and in the case of mentally-ill prisoners has ‘the equivalent of placing an asthmatic in a place with little air to breathe’, no constitutional bar to their continuing use has been imposed by any court.

Even Denmark, a country considered by the UN special rapporteur on torture to be entirely compliant with every other human rights obligation, was warned following an inspection that to detain a suspect in solitary confinement, if it were done in the expectation that it might induce an admission of guilt, could constitute torture contrary to Article 3 of the Convention. The same special rapporteurs have expressed particular concern about conditions in maximum security prisons in the US which violate internationally protected rights, but they can do no more than register concern since they have no right to conduct internal inspections. Despite continual recommendations by the UN Human Rights Committee that the US government should scrutinise conditions in Supermax prisons and implement minimum UN standards, there have been no changes in practice, and the federal government is building more such facilities. Human Rights Watch found in 2000 that there were nearly 20,000 prisoners held in complete isolation in the US, nearly 2 per cent of the prison population (by now unofficial figures range between 25,000 and 70,000).

Such few judicial honours as can so far be awarded go to the extradition judge in Bow Street who so straightforwardly rejected the idea that a military commission conformed with the fair trial guarantees of the European Convention. On the isolation imposed by pre-trial SAMs he expressed extreme anxiety – ‘It is in relation to these that I find the greatest grounds for concern’ – and in the case of Abu Hamza, so disabled that he was likely if convicted to be imprisoned in ADX Florence only briefly before transfer to a prison hospital, he found that ‘but for that fact’ the brutal isolation would violate Article 3.

When the same issue has been considered in the high courts, the judges have sidestepped the facts: ‘For a mature and sophisticated democracy that respects the rule of law, it would be unusual, to say the least, if one of its lawful and carefully prescribed methods of incarceration were to be condemned for giving rise to an automatic violation of Article 3.’ The inclusion of the word ‘automatic’ is intended to describe the protection that litigation provides for a prisoner once in solitary confinement, but the prospects for an effective challenge are non-existent; there is no funding for prisoner litigation in the US and administrative obstacles prevent even the most determined litigant having his case heard within ten years. In any event, even prisoners who have gone for years without speaking to anyone other than Federal Bureau of Prisons officials have not been able to establish a claim under the 8th Amendment to the constitution, which prohibits cruel and unusual punishment, since human contact is not classified as a ‘single identifiable human need such as warmth, food or exercise’. Extreme isolation, even for life, is not considered under the US constitution to be a denial of the ‘minimal civilised measure of life’s necessities’.

Strasbourg, the European court of last resort, has been criticised in the past for a lack of imagination, or at least of judicial understanding, of the impact of solitary confinement on prisoners, and of having ‘too ready an acceptance of state interests’. On the one hand, it has been reluctant to judge actual solitary confinement regimes as being in violation of the Convention, but, on the other, it has reminded itself of the irreducible nature of Article 3: ‘States face very real difficulties in protecting their populations from terrorist violence … the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3.’ But it is precisely the ‘nature of the offence’ that will condemn the extraditees to conditions of imprisonment and lengths of sentence that are an inevitable consequence of the civilian trials constitutionalists argue for, established as these practices have become within an entirely constitutional structure. Is indefinite military detention really any worse a prospect?

Observations are easily made on the defects of one jurisdiction from the safety of another. The beam in our own national eye concerns the UK’s use of indefinite detention without trial and its complicity in torture perpetrated by others. We have not had to fight to end capital punishment in our own country or to participate in direct action to bring an end to the offshore illegality of Guantánamo. It is entirely by accident that we have come to see what probably remains unknown to most Americans.

One young American citizen, Syed Fahad Hashmi, was due to stand trial this month in Manhattan. He has been subjected to every coercive and unconstitutional practice at issue in the still outstanding extraditions in the three years since he was flown from the UK to the US. Before his transfer to the US, Hashmi was held in Belmarsh Prison in the same conditions as all other prisoners, accused of an offence that if tried in the UK would have merited at most a sentence of two or three years; since his extradition, he has been kept in total isolation in a tiny cell. He has not seen daylight since arriving in this New York prison.

The Anglo-American adversarial process is intended to rest on a guarantee of fairness, an equality of arms between prosecution and defence. Hashmi, under the disabilities that years of solitary confinement inevitably create, even for the strongest and fittest, faced a prosecution based on the evidence of a co-operating witness who pleaded guilty in the US to engagement in terrorist activity in Pakistan, including the use of explosives and the attempted murder of the country’s then president. The witness, having served the shortest of prison terms in the US, and having given evidence against others in a cluster of trials in a range of jurisdictions, claimed that Hashmi, a student in England, let him leave a suitcase in his London flat in which there were combat clothes and lent him his phone, on which he, the witness, rang a suspected terrorist in the UK. This was enough to secure his extradition. For this, the co-operating witness goes free and his victim stands trial on charges of providing material support for terrorism. On the eve of that trial, having maintained his innocence for three years, but faced with the prospect of a 70-year sentence, Hashmi changed his plea to guilty.

It is possible for Strasbourg to deliver a judgment to which the US, uniquely, must pay heed if it wishes extraditions to continue. Its granting of an interim freezing order on all extradition cases is exceptional and the length of time, now nearly three years, it has taken to wrestle with the acute legal problems thrown up by the practices of the United States in these cases is unprecedented. But, whatever Strasbourg’s judgment, the failures of due process and the utter disregard for the rights of prisoners in the US has long cried out for attention.

Fahad Hashmi’s Sentencing Date Changed to June 9th

Syed Fahad Hashmi’s sentencing will take place on Wednesday June 9, 2010 at 3:30pm.

The Hearing will be held in front of Judge Loretta Preska at 500 Pearl Street in Manhattan, New York 10007.

Please come and support.

NYC Case a Wake-Up Call for Muslims

May 6, 2010

by Aisha Gawad

I was raised in the Southern United States, reciting the pledge of allegiance every morning, memorizing the Bill of Rights, and listening to country singers croon about good ole American values. Like many young Muslim-Americans, I felt just like my blonde, blue-eyed classmates until the events of September 11 made me suddenly and irrevocably different.

At first, it didn’t change much about me. The pledge of allegiance resonated in the same way and the Bill of Rights remained an untouchable beacon of justice. But over the past eight years, I feel like I’ve lost my footing. Patriotism has become synonymous with Security, and Security has become synonymous with two unjustified wars and a host of laws and administrative measures that seem to fly in the face of the American values I was taught to hold so dear.

I feel like many of us have been trying to weather the storm, to lay low until “Muslim” is no longer a dirty word in this country. But something has to wake us up to the fact that this isn’t about 9/11 and it isn’t about Iraq. It’s about us asserting our rights as Americans and as human beings.

Over the past two years, I feel like I’ve had a wave of wake up calls that keep me from falling into a routine of passivity. Last week, the news of Fahad Hashmi’s plea deal came more like a slap in the face.

Unfortunately for Fahad, he’s become a symbol of the extent to which Islamophobia and racism plagues this country.

Fahad was arrested in June 2006 after he allowed an acquaintance, Junaid Babar, to stay in his London apartment for two weeks. Babar apparently had with him bags containing ponchos and socks which allegedly were delivered to Al Qaeda members. Once Babar was arrested by U.S. authorities, he took a plea deal and was more than willing to tell police what they wanted to hear in order to save his own skin, including implicating Fahad.

Since Fahad’s arrest, he has been kept in solitary confinement in the Metropolitan Correctional Center in lower Manhattan. The isolation in which he has been kept (permitted under the atrocious Special Administrative Measures passed in October 2006) amounts to psychological torture.

His trial was set to begin on April 28th, but its fairness was questioned before it even began. As his brother Faisal Hashmi writes in a public statement on behalf of his family, Fahad “faced the prospect of going before an anonymous jury based in part on the prosecution’s ugly assertion that his friends and family were as dangerous as they alleged Fahad was. Furthermore, the case against Fahad relied on secret evidence based in large part on the testimony of a government informant with a history of lying. The material support statute under which he was charged is notoriously flawed and the subject of outrage from civil libertarians. It enables the government to take a grain of truth and bury it in an ocean of innuendo and outright lies.”

So on the eve of his trial, Fahad changed his innocenet plea to a guilty one and accepted a deal from the prosecution in which he now faces just a single charge of material support to terrorism. He will serve 15 years in prison with credit for time served.

A “Free Fahad” (www.freefahad.com) campaign has been waged for years by activists outraged by the treatment he has faced and what it stands for. For them, this is surely a hard prospect to swallow – that Fahad was forced to accept the government’s assertion of his guilt in order to escape extended solitary confinement and decades in prison. But we cannot expect him to make a martyr of himself; the plea deal was realistically the best option he could hope for.

The sad truth for him is that for many brothers like Fahad, this is the best they can hope for. If this reality doesn’t wake us up as a community, then I don’t know what will.

I don’t want to quietly weather the storm. I want to put an end to injustice now. It is our responsibility as Muslims, as Americans, and as human beings to come out of hiding and assert our rights. I’m not asking for much. I just want to feel truth in the words I was taught to memorize in elementary school.

Contact the author:

Email: aisha.gawad@gmail.com

Twitter: http://twitter.com/ArabRaptor

Published in the Elan Magazine:

http://www.elanthemag.com/index.php/site/blog_detail/nyc_case_a_wake_up_call_for_muslims-nid646486841/

Published on Thursday, April 29, 2010 by CommonDreams.org

Fahad Hashmi and Terrorist Hysteria in US Courts

by Andy Worthington

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 Fahad 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, Fahad 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.

Andy Worthington is a journalist and historian, based in London. He is the author of The Guantánamo Files [26], the first book to tell the stories of all the detainees in America’s illegal prison. For more information, visit his blog here [27].

Article printed from www.CommonDreams.org

URL to article: http://www.commondreams.org/view/2010/04/29-7

April 30, 2010

STATEMENT OF FAISAL HASHMI ON BEHALF OF FAMILY OF SYED FAHAD HASHMI

Earlier this week our beloved son and brother Fahad pleaded guilty to a single charge of material support for terrorism. He took the plea after spending four years in prison, three of them in complete isolation.

Fahad’s lawyer David Ruhnke said Fahad “made the best deal that was available under the circumstances…the government wanted to lock him up for the rest of his life. They were not successful in that goal.”

With credit for time served, Fahad could be free by the time he’s 40.

We welcome the fact that Fahad will leave prison with much of his life in front of him, however we are extremely troubled by the process that has brought us to this point. We are troubled not only for our family but by the message a case like Fahad’s sends to our community.

It disturbs us greatly that a young man known as a pillar of his Queens community, who worked and studied hard and who, in the tumult of growing up Muslim in America, choose a path of religious and political activism, came to be demonized as an extreme danger to the country he called home. Even though he was not accused of violence or of belonging to a terrorist group he was denied the fundamental elements of due process, tortured through solitary confinement and faced the prospect of going before an anonymous jury based in part on the prosecution’s ugly assertion that his friends and family were as dangerous as they alleged he was.

Furthermore, the case against Fahad relied on secret evidence based in large part on the testimony of a government informant with a history of lying. The material support statute under which he was charged is notoriously flawed and the subject of outrage from civil libertarians.. It enables the government to take a grain of truth and bury it in an ocean of innuendo and outright lies.

Except for our presence at the recent plea hearing Fahad has not been permitted to see us for almost 6 months. We continue to be concerned about his conditions of his confinement and will fight for the lifting of the draconian Special Administrative Measure that remain in place.

My father brought our family to this country 27 years ago not only because of the economic opportunities presented but also because he believed in the values of justice and fair-play that are supposed to underpin democracy.

Fahad’s treatment makes a mockery of those values. The message this case sends to the Muslim community is that you are being watched and that you are less valued in American society and less entitled to the protections under the Constitution.

We do not see this as the end to our struggle for justice. In seeking justice for Fahad we hope that we have shed light on the need to start a dialogue on the treatment of Muslims in America today. We believe the principles on which this country was founded compel us to speak out against the treatment of our community. We are an integral part of this society and we should not be treated as less valuable citizens.

Sentencing Date Changed to August 16th

Dr. Aafia Sentencing Hearing Adjourned until August 16, 2010 at 9:00AM

Judge Berman reset Dr Aafia’s sentencing from July 21st to August 16th.

The Hearing will be held in Judge Berman’s court at 500 Pearl Street in Manhattan, New York 10007.

http://www.freeaafia.org/news-a-messages/us-news/272-sentencing-date-changed-to-august-16th.html

April 27, 2010

Hello everyone,

Fahad Hashmi pleaded guilty today to one count of material support. There will be no trial, instead a sentencing hearing is scheduled for June 7th.

Thank you,

Muslim Justice Initiative
Muslimsforjustice.org