On Wednesday, an American citizen goes to trial, without the right to review all the evidence in his case and after three years of isolation. This is happening not in Guantanamo or even a military brig but in the Southern District of New York. Syed Fahad Hashmi, held in the Metropolitan Correctional Center in Lower Manhattan, is charged with two counts of providing and conspiring to provide material support to al-Qaida and two counts of making and conspiring to make a contribution of goods or services to al-Qaida. If convicted, he faces 70 years in prison. His case represents the vast, baffling scope of this sort of criminal charge and the abuses committed in the name of fighting terrorism right here at home.
With all the attention that has gone to Guantanamo, much of the outcry over inhumane treatment and torture, the use of secret evidence, and denial of habeas rights has cast these as problems occurring largely outside U.S. shores and courts. Yet the conditions of Hashmi's pre-trial confinement are not more humane than those inflicted on many Guantanamo detainees. Nor has his right to a fair trial in New York been significantly more protected than those of foreign nationals facing U.S. military tribunals. And the transition from the Bush administration to the Obama administration has ameliorated none of this.
Hashmi is a 30-year-old U.S. citizen who was born in Pakistan; grew up in Flushing, Queens, where his family still lives; and received his B.A. from Brooklyn College and his master's from London Metropolitan University. At Brooklyn College, in 2002, Hashmi was a student of mine in a seminar on civil rights. A critic of U.S. foreign policy and its treatment of Muslims, he 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. Now it is his rights that have been violated.
Since arresting him in 2006, the government has sought to prosecute Hashmi for providing material support to al-Qaida without accusing him of being a member of al-Qaida, of trying to help al-Qaida commit any act of terrorism or other crime, or of even having any direct contact with the group. Instead, the government's charges against Hashmi are based on the testimony of a cooperating witness named Junaid Babar, an acquaintance from Queens who stayed in his student apartment in London in 2004 for two weeks. The government claims that while Babar was in Hashmi's apartment, he 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-Qaida in South Waziristan, Pakistan. In addition, Babar borrowed Hashmi's cell phone and then allegedly used it to call other conspirators in terrorist plots. Babar 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.
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.
These laws have created a climate in which certain political and religious beliefs are deemed questionable and dangerous. In its prosecution of Hashmi, the government will likely focus on political statements Hashmi made about American foreign policy and the treatment of Muslims here and abroad. Hashmi drew the attention of Time and CNN in May 2002 as a student activist and potential homegrown threat; he was quoted at a 2002 Brooklyn College meeting as calling America "the biggest terrorist in the world." He was also a member of the New York political group Al Muhajiroun. The government has not designated Al Muhajiroun a terrorist organization nor deemed membership in the organization illegal, yet Hashmi's First Amendment protected speech and association with the group is being used against him.