The Right To A Fair Defense Cannot Be Controversial
The Case of Fahad Hashmi
In the eight years since President Bush began the War on Terror, a number of Muslim charities, human rights groups, and community based organizations have been under intense scrutiny and surveillance by the US Federal Government. Muslim Americans have had their phones tapped, their financial assets frozen, and their places of worship infiltrated. The American intelligence community has been slowly bringing home many of the intelligence gathering tactics used abroad to now monitor and detain its own citizens. In this climate of profiling, and eroding civil liberties at home, we must consider cases such as the one of the American, Syed Fahad Hashmi, which illustrates the overreaching powers that have come to characterize the Federal Government, the intelligence community, and the American justice system through the War on Terror.
Fahad Hashmi emigrated to the United States with his parents in 1983 from Karachi, Pakistan, at the age of three. He grew up in the vibrant and diverse community of Flushing, Queens and studied Political Science at Brooklyn College. On campus, he was outspoken in his views of American foreign policy and the oppression of Muslims post 9-11. In 2002, he was mentioned in a Time Magazine article as a student activist. The article quoted him saying, “America is directly involved in exterminating Muslims," and that "America is the biggest terrorist in the world.” Jeanne Theoharis, one of Fahad's professors at Brooklyn College, and a campaigner for his release has stated that Fahad wrote his senior seminar paper on the treatment of Muslim groups within the United States and the violations of civil rights taking place. In 2003, Fahad moved to London to pursue a Masters degree in International Relations from London's Metropolitan University, which he completed in 2005. There he came in contact with an individual blacklisted by the American government, Junaid Babar, an acquaintance from New York, who stayed in his London apartment for two weeks. Babar has since been convicted of providing material support to Al Qaeda and will be a witness against Fahad in his future trial.
On June 6, 2006, Fahad was arrested by British Police at Heathrow Airport while preparing to board a plane to Pakistan. He pleaded not guilty to charges in the U.S. of “providing material support to Al-Qaeda” and was held for eleven months in Britain's Belmarsh prison as part of the regular prison population while he fought his extradition. On May 25, 2007, under pressure from the American government, he was extradited from the U.K. Upon his arrival in the US, Fahad was placed in pre-trial solitary confinement at the Metropolitan Detention Center in Lower Manhattan, where he has remained for almost three years. Subject to Special Administrative Measures (SAM's), he is kept in his cell for 23 hours a day and allowed a single hour in a cage for recreation. He is currently under extreme mobility restrictions and remains under constant video surveillance. He may not interact with anyone other than prison officials, his lawyers, and approved members of his family, and is not allowed to speak out loud, or gesture, under threat of having even more restraints placed on him. Solitary confinement to a lesser extent than what has been imposed is considered torture as per many international standards, and Fahad has been kept in this extreme situation for almost three years now. Over 30 appeals have been made by his lawyers pertaining to his treatment under SAM's with each one thus far being denied.
Fahad's charge of providing “material support” to Al Qaeda, does not accuse him of giving money, weapons, or information to the terrorist organization as originally reported. Rather, he is being accused of allowing an acquaintance, Junaid Babar, to stay in his home in London while carrying raincoats, ponchos, and waterproof socks in his suitcase. According to the government, these items were later delivered by Babar to a third ranking member of Al Qaeda in Afghanistan. During his stay, the government also alleged that Fahad allowed Babar to use his cell phone to speak to other individuals associated with terrorist groups. As a cooperating witness, Babar has already been convicted of five counts of material support himself and faces 70 years in prison. The case built against Fahad will be based upon the testimony of Babar who has already been used by the government to testify in numerous other terrorism related cases. Chris Hedges, the Pulitzer Prize winning journalist writes in One Day We’ll All Be Terrorists, “Babar will receive a reduced sentence for his services, and many speculate he will be set free after the Hashmi trial”. It is expected that the US government will also be introducing tapes showcasing Fahad's political and activist background to demonstrate intent. The implication being that there is no real evidence connecting Fahad to terrorism other than his constitutionally protected religious and dissident political speech.
Under U.S. Law, Fahad is currently presumed innocent while in custody. He has no criminal record or history of violence and there is no precedent for the SAM's in place against him. SAM's were first introduced under President Clinton and were meant to be used to disable and severely limit ones contact with the outside world. They were created specifically for dealing with the most violent and unrestrainable of criminals like mob leaders whose criminal activity and leadership could not be halted while present in the regular prison population. Fahad's “proclivity for violence”, cited to justify such harsh restrictions placed on him are based only upon his religious and political beliefs. SAM's were expanded in wake of 9/11, with the regulations loosened, and the standards for renewal relaxed. They have allowed for Fahad to be kept in a state of administrative limbo, isolated and flagrantly denied his right to a speedy trial, to confront the evidence against him, and to be given the opportunity to defend himself. Apart from the restraints on Fahad as part of SAM's, there are also numerous limitations on his lawyers. They are restricted in what they can and cannot say to the media about their contact with him, and have had to go through extensive and time consuming background checks to be given the required clearance to see the classified “secret evidence” against him. They are however barred from discussing this evidence with Fahad himself or the media. A full cover story in the Village Voice by Nat Hentoff in 2007 regarded Hashmi's case as a "Bush "dark side" legacy”. A year into Obama's presidency we have seen Attorney General Holder reissue Fahad's SAM's in November of 2009.
Regardless of Fahad's ultimate guilt or innocence - something only a fair trial can establish - placing someone in prolonged solitary confinement with such extreme restrictions before being given a chance to defend themselves is deplorable irrespective of the charges, and amounts to torture. For activists rallying around this case, it is an attempt to salvage some justice that has so far uniformly been denied. Fahad's treatment should be of concern to all Americans who value their right to political, religious speech, and the inalienable rights guaranteed under the constitution. The right to a fair defense cannot be controversial, and community organizations have been mobilizing around Fahad's case with Theaters Against War holding regular vigils outside the Metropolitan Detention Center at 500 Pearl Street in Lower Manhattan. More information about Fahad's case can be found at www.educatorsforcivilliberties.org. Fahad's trial is presently set to begin on April 28th, 2010 in the courtroom of Judge Loretta Preska.