My Student, the “Terrorist”

Jeanne Theoharis is a professor of political science at Brooklyn College of the City University of New York and co-founder of the group Educators for Civil Liberties.

Cross-posted from the Chronicle of Higher Learning

Pale and gaunt, he stood there, having endured three years of pretrial solitary confinement. “Alhamdullilah,” he said.

Yes. He had allowed an acquaintance to stay with him in his student apartment in London—an acquaintance who had raincoats, ponchos, and waterproof socks in his luggage, which the acquaintance later delivered to Al Qaeda.

One day before his case was set to go to trial, nearly four years after he had been arrested, Syed Fahad Hashmi, a U.S. citizen, accepted a government plea bargain on one count of conspiracy to provide material support to terrorism.

Eight years earlier, Fahad and I had sat across from each other in my office. A student in my civil-rights seminar, he had come in to discuss his final research paper. Months after the terrorist attack on the World Trade Center, he wanted to examine the denial of civil rights and constitutional protections that Muslim groups across the political spectrum were facing in the United States.

A devout Muslim and outspoken political activist, Fahad had been a lively and overly talkative participant in class discussion. Relishing debate, he had not shied away from disagreement. I often saw him in the halls before and after class deliberating with other students, discussing the issues of the day or denouncing U.S. foreign policy in the Middle East and the treatment of Muslims in America. He seemed to prefer to talk to those who did not share his political views, and to possess the overly optimistic belief that with a good argument, he could win others over. He would sometimes tire me out by his indefatigable talking, and on occasion, by leaving materials in my mailbox about converting to Islam. His utopia was a state ruled by religious law, and he held beliefs that I certainly did not share about global politics and the ascendancy of Islam.

Still, Fahad—or Syed, as I called him then—was a thoughtful student, and I admired his spunk and stubborn willingness to question authority. I found out later that because all the men in his family had Syed as a first name, he was known to friends and family as Fahad. But like many other students at Brooklyn College, he was too respectful to correct me.

His final paper contended that in contradiction to the Bill of Rights, the civil liberties of Muslim-American groups were being violated in the aftermath of September 11. It began with the American philosopher Randolph Bourne’s claim that in times of war, dissent becomes seditious: “Minority opinion, which in times of peace, was only irritating and could not be dealt with by law unless it was conjoined with actual crime, becomes, with the outbreak of war, a case for outlawry.”

That summer, Fahad e-mailed me for advice. He wanted to know how to become a professor. The next semester he came to my office. He was applying to master’s-degree programs in England. Would I write him a recommendation? Yes, I said, that makes sense. In 2003, there was a much more developed intellectual conversation among British academics on the role of Islam in global politics than there was in the United States. I’d be happy to write a letter. He got up to leave. Almost at the door, he opened his backpack and nervously turned to face me.

Out he fished a package of chocolates. Old World in his manners, Fahad had very likely decided he could not come empty-handed to make a request. He handed them to me. No, no, that’s not necessary, I said. This is my job. Thank you, he said, and stubbornly insisted on giving me the chocolates.

I wrote the recommendation and sent him on his way. Three years later, a colleague told me she’d just seen a news story—our former student Syed Hashmi had been arrested in Britain on some sort of terrorism charge. We were instructed by the college not to say anything to the news media. In the silence lurked fear of association. Galled by the prohibitions, I nevertheless put the arrest out of my mind.

More than a year later, another colleague e-mailed to ask what I knew of Syed’s case. The question sat in my head. Poking around on the Web, I found sensational stories about the arrest of a homegrown terrorist from Queens—a fearsome picture of military gear in the hands of Al Qaeda, reams of cash headed toward the insurgency in Afghanistan.

After a couple of weeks, the case was still bothering me. Fahad had been a zealous political activist. As a scholar of African-American history, I knew that people with radical politics often became targets of government surveillance, that threats to national security were not always what they were purported to be. I found myself going back to that history as I tried to understand what was happening.

The articles on Fahad’s arrest listed the name of his lawyer. I cold-called him, and he asked to meet. Sean Maher talked to me that afternoon about SAMs, CIPA, and “material support”—a hodgepodge of acronyms and confusing legal terms, even for a professor of political science who imagined herself well informed. Maher, a former public defender, had represented people accused of murder, rape, drug trafficking, and gang conspiracy. Never had he seen anything like the jail conditions and rights violations Fahad was being subjected to.

Worried at how isolated Fahad’s family might feel, and learning that they were still living in Queens, I sent his parents a card. A few days later, Fahad’s father called. Syed Anwar Hashmi was distraught. The family had left Pakistan when Fahad was 3. Mr. Hashmi had worked for the City of New York as an accountant for more than two decades. He did not understand how his son could be treated in this way in a country that he had sacrificed to come to and be part of. He started to cry. He believed in the law. But there were supposed to be fair trials, a set of rights, public evidence, and no torture. Where was the Constitution now?

In the years since September 11, stories announcing the apprehension of new terrorism suspects have filled the national news. They follow the same form: relief mixed with jubilation that law enforcement is keeping our homeland safe. Despite the banner headlines, the actual nature of these cases receives limited public scrutiny. We hear little of the government’s evidence or of the treatment of suspects within the federal system. We have come to accept, almost reflexively, that while there have been abuses in places overseas—Guantánamo, Bagram, secret CIA prisons—the rule of law is intact at home. Captivated by a post-civil-rights frame of the U.S. judicial system as relatively incorruptible, we have missed the broader devolution of rights in the federal system and the ways our terrorism policies follow from a larger history of policing dissent and difference.

This, then, is the story of Guantánamo at home, of the treatment of terrorism suspects in the federal courts, the civil-rights violations happening within the United States, and the legal and political culture that allows them. I have been lecturing and writing about this case for more than three years, and what strikes me, as someone who studies civil rights, is how little we in America seem to learn from our own history.

On June 6, 2006, preparing to board a plane to Pakistan, Syed Fahad Hashmi was arrested at Heathrow Airport on a U.S. warrant. He had been living in London, completing his master’s degree in international relations at London Metropolitan University. The arrest of Fahad, who was charged by the United States with two counts of providing and conspiring to provide material support and two counts of making and conspiring to make a contribution of goods or services to Al Qaeda, commanded the top of the nightly news that June evening. “Terror trail” and “web of terror” flashed as Brian Williams began his nightly broadcast. New York Police Chief Raymond Kelly crowed, “This arrest reinforces the fact that a terrorist may have roots in Queens and still betray us.” As in many terrorism indictments, the news media maintained little distance from the government’s story.

For 11 months, Fahad fought his extradition, fearing the treatment he would face in American courts. In May 2007, he became the first U.S. citizen extradited under laws passed after September 11 that relaxed standards for the process. While the British government did not ask for assurances of fair treatment for Fahad, it did require the United States to give a cursory account of the basis of the case.

The “centerpiece” of that case was the testimony of a cooperating witness, Mohammed Junaid Babar. In the beginning of 2004, Babar, an acquaintance of Hashmi’s from New York, asked to stay with him at his London apartment for two weeks. According to the government, the acquaintance had luggage with him, which he, the acquaintance, later delivered to the third-ranking member of Al Qaeda in South Waziristan, in Pakistan. In addition, Hashmi allegedly allowed Babar to use his cellphone to call conspirators in terrorist plots.

“If we are engaged in a war against terror—and we most certainly are,” FBI Assistant Director Mark J. Mershon publicly claimed, “then Syed Hashmi aided the enemy by supplying military gear to Al Qaeda.” The government had caught a “quartermaster.” Despite the sensationalism, the government had been forced to admit it was not actually accusing Hashmi of supplying military gear himself; “quartermastering” consisted of allowing an acquaintance with luggage to stay in his apartment. “Military gear” in the luggage amounted to raincoats, ponchos, and waterproof socks.

Babar himself had been arrested in 2004 on five charges of material support. He quickly cooperated with government authorities, who interviewed him in a midtown hotel, and he agreed to serve as a government witness in a number of terrorism cases in exchange for a reduced sentence. Out on bail since 2008, Babar would provide his last testimony at Fahad’s trial.

Flown back to New York, Fahad Hashmi was placed in solitary confinement at the Metropolitan Correctional Center in lower Manhattan, 13 miles from where he had grown up in Flushing. In front of a courtroom filled with family and friends, Judge Loretta A. Preska denied him bail. Although he was a citizen with no criminal record, she said that he did not respect U.S. laws or have significant ties to family and community to prevent him from fleeing.

In the first months of detention, family members could visit him together and talk about their visits with friends and family. Fahad had a radio and could receive and read newspapers and magazines. He could shower outside of the view of the camera. His lawyer could talk freely with him and with others.

Five months later, that changed. Fahad was put under Special Administrative Measures, or SAMs, which restrict a prisoner’s contact with the outside world.

The federal government established SAMs in 1996 for gang leaders and other crime bosses with demonstrated reach in cases of “substantial risk that an inmate’s communication or contacts with persons could result in death or serious bodily injury to persons.” After September 11, the Justice Department began using SAMs pretrial, with wide latitude to wall off terrorism suspects before they had been convicted of anything.

Fahad was allowed no contact with anyone outside his lawyer and, in very limited fashion, his parents—no calls, letters, or talking through the walls, because his cell was electronically monitored. He had to shower and relieve himself within view of the camera. He was allowed to write only one letter a week to a single member of his family, using no more than three pieces of paper. One parent was allowed to visit every two weeks, but often would be turned away at the door for bureaucratic reasons. Fahad was forbidden any contact—directly or through his lawyers—with the news media. He could read only portions of newspapers approved by his jailers—and not until 30 days after publication. Allowed only one hour out of his cell a day, he had no access to fresh air but was forced to exercise in a solitary cage.

The government cited Hashmi’s “proclivity for violence” as the reason for such harsh measures—even though he had no criminal record and was not charged with committing an actual act of violence or having any demonstrated reach outside of prison. Given the number of people convicted of a violent crime behind bars in the United States, “proclivity for violence” seemed an implausible justification for the harsh measures.

While challenging his extradition, Hashmi had been housed at Britain’s notorious Belmarsh prison, where he talked, prayed, and exercised with other prisoners. No complaint was ever made about his behavior there. (The British never charged him with any support to terrorism.) Similarly, there had been no complaint about his behavior in his first five months at the correctional center.

But he was not cooperating with American authorities. The U.S. attorney had made it clear that this could all go away if he would. As Fahad explained at his sentencing three years later, “And in all reality, I had nothing to cooperate about.” Much like other forms of torture, his treatment was a coercive punishment for not doing what the government wanted.

Special Administrative Measures come directly from the attorney general. Used pretrial, they seem to be reserved for Muslim defendants. On May 31, 2009, as Hashmi sat in isolation, Scott Roeder, a Christian militant, walked into a Wichita church and shot and killed an abortion doctor—an act of premeditated murder. Some anti-abortion activists celebrated and wrote to Roeder in jail. Some even came to visit. Roeder was not put under SAMs. Meanwhile, Fahad received his first punishment, for “unauthorized gestures” and insubordination, after he practiced martial arts in his cell. He lost his limited family visits for three months.

On January 23, 2009, the day after President Obama signed an executive order prohibiting torture and ordering the prison at Guantánamo closed, Fahad’s defense challenged his SAMs for the second time, citing extensive scholarly and medical evidence that long-term solitary confinement and sensory deprivation damage a person’s mental and physical health. Citing the martial-arts incident and continuing threat to national security, the judge rejected the argument, and over the next three years, 30 more appeals. Attorney General Eric Holder renewed Fahad’s SAMs in October 2009.

The use of torture and other human-rights violations in America’s war on terrorism has been framed as a problem occurring largely outside our shores. Our public conversation blames a set of bad guys—the “torture lawyers” John Yoo and Jay Bybee and their patrons, President Bush and Vice President Cheney—who twisted the law to allow “enhanced interrogation” in secret and offshore locations.

But enhanced-interrogation techniques are only one facet of the human-rights devolution in the aftermath of September 11. In a campaign against terrorism that requires evidence of the effectiveness of law enforcement, a record of conviction is paramount. Prosecuting alleged terrorists has significant cachet for politically aspiring U.S. attorneys, not to mention financial imperatives as various government agencies compete for money made available to fight terrorism. Under the cover of law, U.S. attorneys use prolonged solitary confinement and sensory deprivation to help produce convictions. As John McCain, a former POW, wrote, such treatment “crushes the spirit.”

The use of prolonged solitary confinement is increasingly out of step with world opinion and practice, and is deemed torture by international standards. On July 8, 2010, the European Court of Human Rights kept in place an injunction barring the extradition of four terrorism suspects to the United States, based on the inhumane conditions in so-called Supermax prisons, including the use of postconviction SAMs. Evidence of Hashmi’s pretrial treatment formed part of the background for the decision.

Read rest here. ( it is long but brilliant article and deserves to be read)

To read past MM coverage of Fahad’s case read here, here and here.