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.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and currently on tour in the UK), and, if you appreciate my work, feel free to make a donation.
Thank you, Andy, for the important coverage and the sober truth. The Hashmi case makes me want to gnash my teeth and rend my hair. This is what I wrote yesterday at Emptywheel’s blog upon first hearing about the verdict. I also reference Omar Khadr, whose trial also just started in the “new” military commissions at Guantanamo. Khadr reportedly turned down a U.S. offer of a plea bargain and take five years in prison. I wrote:
“Re Hashmi, well son of a bitch!!! They broke the guy down, so he’ll plead for… 15 years! What a pile of crap. I can’t blame Hashmi for wanting the ordeal to end. The state has you by the balls, and has broken you down, and shown they can do it and the country looks on passively. Why, maybe he’ll get out in ten or less years (I’ll bet he’s told), and he thinks, maybe my life isn’t completely over….
“I’m glad to see Khadr wants to fight for his case, and it’s remarkable he too hasn’t been totally beaten down. Perhaps knowing you are in a prison with 100s of others like you give young men like him hope. For Hashmi, all alone and abandoned in Manhattan, it must have felt like he was dropped into hell. That’s not to downplay the torture endured by young Omar. Maybe he can bargain them down to something token, or maybe he’s hoping for full vindication.”
— I’ll add here that I’m glad you brought up the whole “material support” law business, as it so clearly demonstrates that the “changes” under Obama have been mostly cosmetic, when there’s been any change at all.
And thank you, Jeff. Glad you picked up on the “material support” problems. Yet again, I think, Congress is to blame for passing the “catch-all” laws, and I guess what that illustrates is that things don’t improve much, if at all, when you exchange the “unitary executive theory” favored by Bush for the Congressional approval favored by Obama, as both tend to the idiotic and disproportionate.
I’m holding off on commenting on Omar Khadr’s case right now. I’ll do a round-up that will be out on Monday, but I too am glad he’s fighting it, and I agree that it’s probably because of a sense of solidarity amongst some of the prisoners. Given what just happened to Hashmi, I’m also prepared to contemplate that perhaps the best way to derail unjust policies is through the Commissions, rather than through federal court trials! I didn’t expect to find myself saying that, and it’s nothing to do with justice, of course — rather, it’s to do with finding the best ways to confront injustice. What a mess!
Great to hear from you, as always.
One other thing, Andy. I’m not so sure Obama has dropped Bush’s “unitary executive theory” for a reliance on Congressional approval. I’m in touch with some academics who are out to prove that Obama is just doing a better job hiding it. Consider this description, from David Swanson at Counterpunch, and in line with what these academics are saying:
“Obama has created a modified version of the simply-commit-crimes approach by arguing that he can silently rely on previous signing statements by himself or Bush without repeating anything in a new signing statement. This means that the series of events runs as follows: Congress passes a law; the president undoes it with a signing statement; Congress passes the same law again; the president silently considers the law meaningless; Congress erroneously assumes the new law is law.
“But, what happens if Congress passes a law and no previous signing statement or other decree has dealt with it. What can a president do (other than veto the bill or sign and obey it)? Obama has chosen to ask the OLC to write memos. Remember, this is the same office that claimed the power to legalize aggressive wars and torture in secret memos that were (are) treated as law. President Obama has publicly forbidden the prosecution of these crimes, and has kept the Justice Department’s own report on the matter secret for another year.”
Note that in most cases, OLC decisions are not publicly published. Note that the silent obesiance to previous signing statements, and the use of OLC memos is something that was made policy in a memo from the administration, so I’m told. I don’t know if I can get a copy of it, but I’ll try.
Ah yes, I remember David’s article now. Thanks for the reminder. Please do dig up that memo if you can. In the meantime, I’ll reflect on your opening comment:
I’m not so sure Obama has dropped Bush’s “unitary executive theory” for a reliance on Congressional approval. I’m in touch with some academics who are out to prove that Obama is just doing a better job hiding it.
What a depressing thought — although, of course, I shouldn’t expect much (if anything) from an administration that responds to the lawlessness of “extraordinary rendition,” torture and secret prisons by deciding that drone assassinations are far less complicated.
And toss in the fact that Obama threw DOJ OLC-head designee Dawn Johnsen under the bus precisely because she was almost certain to have abrogated virtually all of the get-out-of-jail-free card illegal “authority” that Bradbury, Yoo, Addington, Bybee and Company had put in place, and we see that my old college classmate seems to have thought about all of this. Like his predecessor, he evidently stopped reading the Constitution right at Article II.
Thanks, TD, for joining in Bash Obama Day. Evidently the consensus is (as I know we discussed at the time, however rosy my hopes were at other times) that following on from the power-grabbing Bushies made it all too easy to decide that it was useful not to give back those ill-gotten gains — and there seems to be no one close to the President telling him that this is wrong.
I have been also wondering if the Commissions would be better than federal courts given what happened during the three weeks of the Dr. Aafia Siddiqui trial. Yet there may be new items to watch: Just out: 04/28 / Human Rights First dot org: Press Release: DOD Issues Newest Set of Rules; For MILITARY COMMISSIONS TRIBUNALS LIKELY TO FACE FURTHER CONSTITUTIONAL CHALLENGES – READ http://www.humanrightsfirst.org/media/usls/2010/alert/606
It is my opinion that most likely Sayhed Fahad Hashimi has not done anything wrong and if he has done something illegal it is only because the US has passed laws designed to turn any Muslims or Arabs targeted into criminals by definition if they behave normally doing things that reflect their affiliation with other Arabs and Muslims. Nevertheless he has probably behaved both wisely and as advised by responsible attorneys in taking a plea to a mere 15 years imprisonment rather than risk the very high probability of a 70 year sentence if he were so foolish as to risk a trial. The idea that someone prosecuted and taken to trial in the US will likely be acquitted just because he did not perform the crime or just because the crime never happened at all is a widely believed absurdity.
America is in the throes of a crime, law and order and racial fear panic and as a result has committed itself to far more law and order and to far stronger punishment than it can afford. This means that were all defendants to exercise their rights to a trial the system would grind to a halt. The US has resolved this problem with the corrupt system of plea bargaining. Authorities can simultaneously threaten trial for a an offense with a crippling sentence and offer a plea bargain for an offense or a sentence that in comparison is tolerable. This is great for criminals who have actually done something wrong but a disaster for the wrongly prosecuted innocent. The so called presumption of innocence only exists if the jurors want it to, and a defendant of the wrong race or religion such as Aafia Siddiqui for example, in front of a jury drawn from the race and crime fearing citizens from the respectable white suburbs, do not get it. This means the authorities have enormous coercive power over the wrongly prosecuted innocent. You can imagine any prosecutor saying:- “Take the plea for 15 years or rot in prison for 70. If you are so stupid as to refuse the plea we will throw all our resources, legal and illegal, into prosecuting you and demand a draconian sentence. You are and your lawyer have no chance against us especially when we hide exculpatory and fabricate incriminating evidence. Think carefully, this is a limited time offer.”
The US criminal justice system is hopelessly corrupt:-
1/ It is infected with racial and class prejudice. The reason that things that are illegal are illegal is that they are associated with despised minorities. The reason sentences are so draconian is that it is imagined that only members of despised minorities will receive them.
See this alternet article on racial animosity as a motive for US legal punitiveness;
2/ Prosecutorial misconduct is standard operating procedure and even when discovered is rarely prosecuted. One of the few cases where a prosecutor has been penalized is that of Mike Nifong of the Duke Lacrosse rape case. He was caught suppressing exculpatory evidence in a case against rich white boys just as he would have if prosecuting poor blacks. The defendants had a powerful legal team who discovered the misconduct and MF lost his law license, but this kind of thing is the exception. The worst that happens to most discovered to have engaged in prosecutorial misconduct is criticism in little read appeal court opinions;
3/ The allowed plea bargain discount from credibly threatened sentence for the trial charge to that for the sentence for the plea charge is too high. This puts innocent defendants in an impossible dilemma. Really there needs to be a limit on that discount, to no more than 20%, say from 70 years down to 56 years, not from 70 to 15;
4/ Use of snitches is widespread. Pressure on snitches to give evidence regardless of the truth of that evidence is enormous. There is no guarantee for example that Junaid Barbar is not telling a lie to save himself.
Even assuming that Sayhed Fahad Hashimi did knowingly store ponchos, socks and boots for use by Al Qaeda, the idea that this is a crime justifying 15 years is absurd.
My suspicion is that US authorities decided to silence Sayhed Hashimi because they did not like his criticism and have fabricated a case to do this. I do not think that they believe they are doing anything wrong here. As far as America’s righteous are concerned, all Arabs and Muslims are collectively guilty of the September 11 atrocity because at the very least they agree with the aims of those that carried it out. Therefore fabricating evidence or torturing confessions out of the innocent is OK because the innocent are not really innocent.
I think Connie L Nash is probably correct that defendants under the system of military commissions are probably better off than those in the civilian courts. So far it is military lawyers such as Major Mori and Colonel Morris Davis who have exhibited decent behaviour unlike lawyers from the US Justice Department and sentences handed down have been low. Civilian juries such as that in Aafia Siddiqui’s case have shown themselves to be sitting ducks for prejudicial arguments. That Aafia’s jurors could dismiss the lack of fingerprints, bullet casings and bullet holes as irrelevant shows that they were impossibly biased. No reasonable doubt here folks.
You are in contact with the Talking Dog, so could you relay this message to him as I have no way of contacting him other than via his comment system which does not work for me. No need to display it though.
Talking Dog, ever since you upgraded your version of Movable Type, I have been unable to view comments on your site either with Sea Monkey, or Internet Explorer. I get a new window with a message below in the window:-
An error occurred
This has been the case for at least a couple of months. Actually I have not recorded how long but it was when you moved to Movable Type Pro.
Thank you very much for your excellent and sustained criticism of the US justice system — sorry, the US “justice system.” That really is an excellent analysis!
Will also forward your message to the Talking Dog.
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