The unfair trial of Syed Fahad Hashmi.

The law, lawyers, and the court.
April 27 2010 11:05 AM

The Legal Black Hole in Lower Manhattan

The unfairness of the trial of Muslim activist Syed Fahad Hashmi.

(Continued from Page 1)

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 These conditions have degraded his health—in pre-trial hearings, he appears increasingly withdrawn and less focused—and have interfered with his ability to participate in his own defense.

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Much of the evidence against Hashmi is classified under the Classified Information Procedures Act (originally enacted in 1981 to prevent U.S. intelligence officers under prosecution from threatening to reveal state secrets to manipulate the legal proceedings). His lawyers, who had to receive CIA-level security clearances, are able to review the evidence but may not discuss it with Hashmi or any un-cleared experts. This, too, blocks Hashmi from assisting with his defense.

Hashmi's case has attracted growing attention. More than 550 academics and writers signed a Statement of Concern about "the conditions of his detention, constraints on his right to a fair trial, and the potential threat his case poses to the First Amendment rights of others." Broadway actors, civil libertarians, Muslims, clergy, law students, anti-war activists, and Hashmi's own family have held weekly vigils outside MCC, where Hashmi is being held.

Many of these concerned New Yorkers planned to attend the trial. In response, the government filed a motion citing the public interest in the case as potentially dangerous. They asked for an "anonymous jury" with extra security. On Monday, Judge Loretta Preska granted this request. The U.S. attorney disparagingly wrote 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."

Promoting guilt by implication, this move by the prosecution signals to the jury that Hashmi is dangerous even before he steps into the courtroom and encourages jurors to view observers in court as suspicious as well. Compromised due process requires further secrecy. The politics of fear requires more fear. And so tomorow, Syed Fahad Hashmi goes to trial in a legal black hole right here in New York City.

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