[Ppnews] My Student, the 'Terrorist' - Fahad Hashmi

[Political Prisoner News]

http://chronicle.com/article/My-Student-the-Terrorist/126937/


My Student, the 'Terrorist'

By Jeanne Theoharis
http://chronicle.com/article/My-Student-the-Terrorist/126937/

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 London­an 
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, Fahad­or Syed, as I called him then­was 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.

The government specifies our duty as citizens: to 
watch for suspicious activity and individuals. 
Implicitly we are told to see danger in people with beards and head scarves.

Despite some presence by Hashmi’s family, 
friends, and Muslim student groups, the major 
civil-liberties organizations have remained 
silent about his treatment behind bars.

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 story­our 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 Queens­a 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 overseas­Guantánamo, 
Bagram, secret CIA prisons­the 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 terror­and 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 
parents­no 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 
contact­directly or through his lawyers­with the 
news media. He could read only portions of 
newspapers approved by his jailers­and 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 
measures­even 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 
doctor­an 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 guys­the "torture lawyers" John Yoo and Jay 
Bybee and their patrons, President Bush and Vice 
President Cheney­who 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 post conviction SAMs. Evidence of Hashmi's 
pretrial treatment formed part of the background for the decision.

Censure is more difficult within the United 
States. In a particularly troubling twist, 
detailed criticism of SAMs, in itself, becomes 
illegal. Everyone in direct contact with a person 
under SAMs is bound by the SAMs and not allowed 
to talk about any conversation with the detainee, 
thus making it illegal to speak out against the 
precise damage of these measures.

Fahad's treatment was not a historical 
aberration. State interests of national security 
have repeatedly trumped civil liberties. Shadowy 
"un-American" enemies have long borne the brunt 
of scrutiny and repression. And periods of public regret have often followed.

In 1942, President Roosevelt signed Executive 
Order 9066, allowing the internment of more than 
110,000 Japanese and Japanese-Americans (more 
than two-thirds of whom were American citizens). 
Upheld as constitutional in a series of Supreme 
Court cases on the grounds of national security, 
internment hardly raised an eyebrow with 
journalists during World War II. Those who 
objected were pilloried, with the complicity of 
many civil libertarians and the silence of many 
Americans. When a group of 63 Japanese-American 
men at Heart Mountain Relocation Camp protested 
internment by refusing to be drafted or swear 
unconditional loyalty to the United States, they 
were jailed. The Japanese American Citizens 
League supported the government, and the American 
Civil Liberties Union refused to provide legal 
assistance, claiming the draft resisters had no 
legal case. They received three years in prison and were ostracized for years.

The United States, however, quickly distanced 
itself from its history of internment. By the 
1950s, a new internal enemy had emerged. In a 
cold war with the Soviet Union, Americans feared 
that Communists were infiltrating American 
institutions. Political activists and Communist 
sympathizers summoned before the House 
Un-American Activities Committee in the 1950s 
were often pushed to name names. In many cases, 
the government knew whom they knew­and, in a 
number, that those summoned had no crucial 
information. The point was to quiet dissident voices.

Civil-rights activists­variously including Martin 
Luther King Jr., the American Indian Movement, 
and the Black Panther Party­soon became prime 
targets. That was not simply because of the 
actions of a renegade FBI director. Attorney 
General Robert Kennedy himself signed off on the 
bugging of King in 1963. Of Americans surveyed by 
Gallup in the days before the 1963 March on 
Washington, almost half of those who had heard 
about the protest viewed it unfavorably. When the 
FBI began handing over salacious information on 
King to journalists, no reporter blew the whistle.

Beginning in the late 1960s, the United States 
again disavowed such tactics. In 1967 the U.S. 
Supreme Court affirmed that citizens had the 
right to associate with and be members of 
dissenting groups like the Communist Party, as 
long as they engaged in no criminal act.

By the 1990s, with the end of the cold war, and 
following the 1993 bombing of the World Trade 
Center, Islamic fundamentalism became the new 
lurking enemy. The subversion of liberties in 
what came to be known as the "war on terror" 
married old practices to new tactics. Political 
association could now be criminalized through the 
fearsome-sounding material-support bans 
instituted under President Clinton (and later 
expanded under the Patriot Act). The federal 
government would sponsor bold public indictments 
but avoid public show trials­the evidence and 
proceedings largely kept hidden. There would be 
no mass-based internment, but a broad swath of 
interrogations and prosecutions aimed at those 
deemed disloyal. And the politics of fear and 
patriotic loyalty would keep journalists and many 
civil-rights organizations silent.

Fahad's due-process rights fell victim to the 
1980 Classified Information Procedures Act, which 
allows evidence to be kept classified. Its use 
has drastically expanded post-9/11. As a citizen 
in federal court, Fahad faced evidence he was not 
allowed to review. Fahad's lawyers went through 
intensive security clearances to view it­but were 
not allowed to discuss it with him.

Under material-support bans, all sorts of 
constitutionally protected activities can be 
classified as suspect, if not criminal. 
Material-support charges require no criminal act 
nor direct contact with terrorists, just the 
knowing "support" of a foreign terrorist 
organization. They often focus on small acts and 
religious and political associations, which take 
on sinister meaning as ostensible manifestations of forthcoming terrorism.

So-called "jihadist" ideas and membership in 
radical Islamic political groups thus become 
indications of "support," rather than 
constitutionally protected speech and 
association. While a student, Fahad had drawn the 
attention of authorities as a member of the New 
York political group Al Muhajiroun. (Despite its 
troubled history in England, the group has not 
been designated a terrorist organization by the 
United States, nor has membership in the 
organization been deemed illegal here.) An 
activist, Fahad had demonstrated outside various 
embassies protesting the situation of Muslims in 
Kashmir, Chechnya, and Palestine, and what he saw 
as U.S. complicity in Muslim oppression. He drew 
the attention of Time magazine and CNN for 
comments he made at a student meeting at Brooklyn 
College praising John Walker Lindh, and calling 
America "the biggest terrorist in the world." In 
the year before the Second Gulf War, speaking at 
Muslim student associations across the New York 
area, he claimed that the United States had 
greater aspirations in the Middle East and was 
preparing to go to war against Iraq. Though well 
outside mainstream political opinion, his 
activities should have fallen squarely within the 
protections of the U.S. Constitution.

The theory of preventive prosecution behind many 
material-support cases rests on identifying 
dangerous characteristics that portend 
forthcoming terrorism. In 2007, the New York 
Police Department published a report on homegrown 
terrorism, citing Fahad as one of the examples 
and listing indications of a person's possible 
growing radicalization. Those included: giving up 
cigarettes, drinking, gambling, and urban hip-hop 
gangster clothes; wearing traditional Islamic 
clothing; growing a beard; and becoming involved 
in social activism and community issues.

The government had no evidence it was prepared to 
introduce in court outside of Babar's word that 
Babar had access to or delivered anything to Al 
Qaeda. Key to its case, then, were Fahad's 
controversial political beliefs. The government 
was prepared to introduce tapes of his political 
activities at trial, tapes that indicated 
considerable surveillance of his activism as a 
college student, years before Babar's visit to 
his apartment. Despite objections from the 
defense citing Fahad's First Amendment rights, 
the judge ruled that the tapes were relevant to 
understanding his state of mind and "background to the conspiracy."

The seminar paper Fahad had written on 
civil-liberties violations was no longer 
academic. Stunned by the rights abuses happening 
but a few miles away, two colleagues who had also 
had him as a student and I circulated a Statement 
of Concern calling attention to "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." 
Over the coming months, more than 550 scholars 
and writers signed the statement, which we sent 
to Attorney General Michael B. Mukasey and the 
U.S. attorney for the Southern District­and 
dozens of journalists and local officials.

With the exception of The Chronicle and The 
Village Voice's longtime civil libertarian Nat 
Hentoff, no journalists widely reported Fahad's 
treatment. Despite the determined work of Fahad's 
family, friends, and some Muslim student groups, 
the major civil-liberties organizations also 
remained silent. Working hard to get terrorism 
suspects out of Guantánamo into the federal 
system, they did not feel they could turn around 
and highlight how unfair the federal system was. 
The attorney general's office responded in a 
letter reminding us that, under SAMs, we could 
not contact him, but promising that any concerns 
Mr. Hashmi had would be dealt with in a "timely" fashion.

In the winter of 2009, we sent the statement to 
President Obama and Attorney General Holder. The 
only answer we received from a 
constitutional-scholar-turned-president came 
addressed to "Ms. Jeanne Theoharis and Friends," 
thanking us for "taking the time to share your 
views." For the next 15 months, the Obama 
administration made no changes in Fahad's 
conditions, in its commitment to secret evidence, 
and in its use of political activities as evidence of criminal intent.

The years of pretrial detention took their toll 
on Fahad's family, still living in Flushing. 
Fahad's father, exhausted by fear, took early 
retirement. His older brother, Faisal, who had 
two children during the years of Fahad's pretrial 
detention, told me how difficult it was to enjoy 
them while his brother sat a few miles away in 
isolation. He brought his son and daughter with 
him to pretrial hearings, so Fahad could get a glimpse of them.

Faisal had studied business and possessed a 
voluminous knowledge about movies; he had never 
understood how Fahad intended to make money with 
a degree in political science. Now, out of 
necessity, Faisal grew into an able political 
speaker and prodigious legal mind. Together with 
friends and supporters, he helped start a group 
called the Muslim Justice Initiative, to provide 
support for Muslim families and communities in 
the United States facing legal problems in the 
post-9/11 political climate. The need for such a group was increasingly urgent.

We attended Fahad's pretrial hearings, watching 
him grow thinner, less focused, and more jittery. 
I corresponded with more journalists, but no one 
seemed to have the right beat to write about the 
case­a "metro story" to be covered at trial, according to The New York Times.

To begin to break the silence, I wrote an article 
for The Nation. A movement of New Yorkers began 
to grow. Outraged that this inhumanity was 
occurring in lower Manhattan, people sought to 
bear witness. And so, in October 2009, Theaters 
Against War, together with Educators for Civil 
Liberties and the Muslim Justice Initiative, 
began holding weekly protest vigils outside 
Fahad's prison. In the rain and the cold, the 
Broadway actors Wallace Shawn, Bill Irwin, and 
Kathleen Chalfant performed. The opera singer 
Christine Moore and the folk singer Dar Williams 
sang. Muslim students, playwrights, clergy, 
professors, law students, antiwar grannies, 
mothers with children, high-school students, 
prison-rights activists, and Fahad's own extended 
family gathered outside the prison week after 
week for seven months, in the darkness of winter and the light of spring.

Progressive and international news media began to 
take an interest. The Center for Constitutional 
Rights, Amnesty International USA, and the 
Council on American Islamic Relations-NY put out 
an open statement raising concerns about Fahad's conditions.

If this were a movie, the story might end with a 
triumphal courtroom scene, or an intrepid 
Washington Post reporter breaking the story. It 
might have a sentimental ending, with a 
conservative Muslim family and community locking 
arms with Christians and Jews and atheists and 
turning the country back to its commitment to 
civil rights. The government, shamed, would reform its practices.

But this is not a movie, and inhumane treatment 
is well protected in post-9/11 America.

The organizing campaign 500 at 500 called on people 
to attend Fahad's trial at the federal district 
courthouse. That alarmed the government, which 
filed a motion citing public interest in the case 
as questionable and dangerous. A 500 at 500 poster 
became the government's Exhibit A. The U.S. 
attorney explained 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." Prosecutors asked for 
jurors to be granted anonymity and requested 
extra security for them. Promoting guilt by 
implication, such measures would have signaled to 
the jury that Fahad was dangerous before he 
stepped into the courtroom. Demonizing observers, 
the government legitimized the idea that jurors 
should view them with suspicion. Once again, the 
judge granted the government's motion.

One day later, on April 27, Fahad agreed to a 
plea bargain of one count of conspiring to 
provide material support. He made the decision 
after not seeing anyone but his lawyers in more 
than five months, not having access to the 
religious support of an imam, and after nearly 
three years of solitary confinement.

A day before trial, the government dropped the 
other three charges. That it did so suggests that 
it had applied draconian pretrial measures, not 
because it considered Fahad a high-level 
terrorist, but to induce his cooperation or conviction.

Six weeks later, Judge Preska sentenced him to 15 
years in prison. At the sentencing, it became 
clear that Fahad posed a threat not only because 
of luggage brought to his apartment, but because 
of his ideology. Assistant U.S. Attorney Brendan 
McGuire called it "an ideology of violence and 
intolerance," noting that "not every person who 
supports Al Qaeda is going to pull a trigger or 
throw a bomb or launch an attack." Citing Fahad's 
"anti-American jihadist ideology," the judge 
echoed that McCarthyesque logic of deterrence.

At the hearing, Fahad made his first public 
statement in four years. With numerous references 
to the Qur'an, he spoke extremely hurriedly. When 
the judge asked him to slow down, he apologized, 
saying he had not spoken much in the past years. And then he started to cry.

Fahad thanked the people, both Muslims and 
non-Muslims, who had opposed the injustices in 
his case. "To the non-Muslims, above all, some of 
my former professors," he said: "I hope, 
Insha'Allah, that Allah gives me the opportunity 
to me to repay you your kindness." He expressed 
hope "that the bridges of dialogue and debate 
that were built around this case remain so." He 
apologized to his family for the pain he had 
caused them and took responsibility for his 
associations with Babar. He spoke of the "noble 
mujahedin" and, with allusions to Moses and the 
Pharaoh, criticized the government's inhumane 
treatment of Muslim prisoners, including his "brothers" at Guantánamo.

In August, Fahad was transferred to the federal 
high-security prison in Florence, Colo., and in 
March moved into its Supermax ADX facility, the 
most draconian prison in the federal system, 
criticized by Amnesty International and Human 
Rights Watch for its inhumane conditions. He 
remains in solitary confinement, still under 
SAMs, which was renewed again by Attorney General Holder in October.

Meanwhile, in December, Babar was sentenced to 
"time served" (four and a half years out of a 
possible 70). The judge cited his "exceptional" 
service and noted that he "began co-operating 
even before his arrest"­raising questions 
internationally as to whether he had worked for 
the American government before his apprehension.

Anyone who sits on the subway in New York knows 
the poster. "If you see something, say 
something." Our duty is laid out: to look out 
constantly for suspicious activity and 
individuals. Implicitly we are told to see danger 
in the eyes and backpacks of people with beards 
and head scarves, to identify threat in those who 
give up drinking or observe terrorism trials. 
There is a lovely complexity to the young man who 
e-mails his female professor about what her job 
is like and calls the United States "the biggest 
terrorist in the world," who brings chocolates to 
say thank you and decries secularism. But seeing 
that humanity is at odds with the political 
zeitgeist, where endless searches and small 
bottles of shampoo and fear-mongering subway 
posters have become the currency of national 
security. Where a growing obsession with 
homegrown terrorism means that we are again 
willing to chisel away the Bill of Rights in the name of protecting America.

Over the past three years, I have done many 
interviews about Fahad's case. Journalists ask, 
How do you know he is innocent? Rights do not 
require known innocence, I point out. What do you 
say after the plea? To one who teaches about 
civil rights, I explain, it is humbling to see 
those rights shredded a few miles from my 
classroom. Among the hardest things to teach as a 
historian are the outsized fears, political 
motivations, and economic interests that rendered 
good people silent in the face of government 
repression, civil-rights violations, internment, and redbaiting.

We have freedom of speech and build bridges of 
dialogue and debate, I teach my students, and 
what makes that hard is that we have to hear 
things we do not like and be confronted with 
truths and opinions far removed from our own.

But those lessons are not upheld in our public 
culture, which has drawn arbitrary, silencing 
constrictions around the speech and association 
of Muslim-Americans. While Christian and Jewish 
political dissents regularly enter American 
public debate (militant Christian anti-abortion 
rhetoric, for instance, may be censured but is 
not criminalized), Islamic political dissent 
condemning U.S. practices becomes "subject to 
ferocious penalties," as Randolph Bourne decried 
long ago, and Fahad had quoted in his paper.

"If you see something, say something." Our duty, 
I believe, is different­to see in a terrorism 
suspect a person deserving of rights and humane 
treatment; to speak out against torture when it 
happens in a New York jail, not just when it 
occurs overseas; to insist that the Bill of 
Rights applies to all defendants all of the time. 
To take responsibility for the ways each of us 
has become complicit in the civil-rights violations of our era.

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.





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