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.
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.
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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