[Ppnews] Guilty Until Proven Innocent - How to Pre-Convict and Pre-Punish an American Muslim

Political Prisoner News ppnews at freedomarchives.org
Mon Jun 10 14:51:06 EDT 2013

*Guilty Until Proven Innocent *
*How to Pre-Convict and Pre-Punish an American Muslim*

By Victoria Brittain <http://www.tomdispatch.com/authors/victoriabrittain>

A four-month hunger strike, mass force-feedings, and widespread media 
coverage have at last brought Guantanamo, the notorious offshore prison 
set up by the Bush administration early in 2002, back into American 
consciousness. Prominent voices are finally calling on President Obama 
to close it down and send home scores of prisoners who, years ago, were 
cleared of wrongdoing.

Still unnoticed and out of the news, however, is a comparable situation 
in the U.S. itself, involving a pattern of controversial terrorism 
trials that result in devastating prison sentences involving the 
harshest forms of solitary confinement.  This growing body of prisoners 
is made up of Muslim men, including some formerly well-known and 
respected American citizens.

At the heart of these cases is a statute from the time of the Clinton 
presidency making it a crime to provide "material support" to any 
foreign organization the government has designated as "terrorist."  This 
material support provision was broadened in the USA PATRIOT Act, passed 
by Congress just after the 9/11 attacks, and has been upheld by a 2010 
Supreme Court ruling in the case of /Holder v. Humanitarian Law Project/ 
<http://ccrjustice.org/holder-v-humanitarian-law-project>.  Today, 
almost any kind of support, including humanitarian aid, training, expert 
advice, "services" of all sorts, or "political advocacy" undertaken in 
"coordination" with any group on the State Department's terrorist list, 
can lead to such a terror trial. The Court has never defined what 
"coordination" actually means.

In that Supreme Court ruling, Justice Stephen Breyer was joined in 
dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice 
Breyer proposed a narrower interpretation of material support: 
individuals should not be subject to prosecution unless they knowingly 
provided a service they had reason to believe would be used to further 
violence. At the time, the position of the dissenting judges was backed 
by key editorials 
<http://www.nytimes.com/2010/06/22/opinion/22tue1.html> in major 
In the three years since, however, more material support cases have 
resulted in long sentences with very little public notice or critical 

*Pre-Trial Punishment*

In the U.S. these days, the very word "terror," no less the charge of 
material support for it, invariably shuts down rather than opens any 
conversation.  Nonetheless, a decade of researching a number of serious 
alleged terrorism cases on both side of the Atlantic, working alongside 
some extraordinary human rights lawyers, and listening to 
Muslim women in Great Britain and the U.S. whose lives were transformed 
by the imprisonment of a husband, father, or brother has given me a 
different perspective on such cases.

Perhaps most illuminating in them is the repeated use of what's called 
"special administrative measures" to create a particularly isolating and 
punitive atmosphere for many of those charged with such crimes, those 
convicted of them, and even for their relatives.  While these efforts 
have come fully into their own in the post-9/11 era, they were drawn 
from a pre-9/11 paradigm.  Between the material support statute and 
those special administrative measures, it has become possible for the 
government to pre-convict and in many cases pre-punish a small set of 
Muslim men.

Take the case of Ahmed Abu Ali, a young Palestinian-American who is now 
serving life in the Administrative Maximum Facility, a supermax prison 
in Florence, Colorado, and is currently under special administrative 
measures that restrict his communications with the outside world. A 
university student in Saudi Arabia, he was arrested in 2003 by the Saudi 
government and held for 20 months without charges or access to a lawyer. 
The /Washington Post/ reported 
that the U.S. government finally asked for his return just as his family 
filed a lawsuit in Washington.

At the time, it seemed like a victory for the family and the various 
human rights organizations that had supported them, but on arrival Ahmed 
was charged with material support for al-Qaeda and plotting to 
assassinate President George W. Bush. The evidence to convict him came 
from an anonymous alleged co-conspirator and from taped confessions he 
made, evidently after being tortured in Saudi Arabia, a common practice 
there. The evidence of his torture was contested 
at his trial.  The case was described 
by a staff member of Amnesty International USA as "unusual in the annals 
of U.S. outsourcing of torture."  An appeal of Ahmed's 30-year sentence 
actually resulted in the imposition of an even more severe sentence: 
life without parole.

In addition, special administrative measures have been applied to him.  
These were originally established 
in 1996 to stop communications from prison inmates who could "pose a 
substantial risk of death or serious risk of injury." The targets then 
were gang leaders.  Each special administrative measure was 
theoretically to be designed to fit the precise dangers posed by a 
specific prisoner. Since 9/11, however, numerous virtually identical 
measures have been applied to Muslim men, often like Ahmed Abu Ali with 
no history of violence.

A question to Ahmed's sister about how her brother is doing is answered 
only with a quick look. She is not allowed to say anything because 
special measures also prohibit family members from disclosing their 
communications with prisoners. They similarly prevent defense lawyers 
from speaking about their clients. It was for a breach of these special 
measures in relation to her client, the imprisoned blind sheikh Omar 
Abdel-Rahman, that lawyer Lynne Stewart was tried and sentenced to 10 
years in prison in the Bush years.

Although these measures have been contested in court, few have ever been 
modified, much less thrown out. Those court challenges and evidence 
provided to the European Court of Human Rights by American lawyers have, 
however, provided a window into what one of them described as a regime 
of "draconian and inhumane treatment."

Under such special administrative measures at the Metropolitan 
Correction Center in New York City, a prisoner lives with little natural 
light, no time in communal areas, no radio or TV, and sometimes no books 
or newspapers either, while mail and phone calls are permitted only with 
family, and even then are often suspended for minor infractions. Family 
visits are always no-contact ones conducted through plexiglass.

"The conditions have quite simply wreaked havoc on Mr X's physical and 
mental well-being," one lawyer wrote for the European Court of Human 
Rights, describing a seven-month period in which a prisoner at the 
Metropolitan Correction Center was allowed no family phone calls. 
Another highlighted his client's lost concentration, which made it 
impossible to work on his case effectively. "Their world shrinks 
dramatically," was the way Joshua Dratel, a lawyer who has represented 
several men under these measures, described 
<http://www.nytimes.com/2009/02/05/nyregion/05hashmi.html> the situation.

In cases where special administrative measures are in place pre-trial, 
such as the well-documented ordeal of American post-graduate student 
Syed Fahad Hashmi 
<http://chronicle.com/article/My-Student-the-Terrorist/126937/>, lawyers 
have often been obliged to prepare cases without actually sitting with 
their clients, or being able to show them all court materials. After 
three pre-trial years mainly in solitary confinement under special 
administrative measures at the Metropolitan Correction Center, Hashmi 
accepted a government plea bargain of one count of material support for 
terrorism and was given a 15-year sentence.

His crime? He allowed an acquaintance to stay at his student apartment 
in London, use his cell phone, and store a duffel bag there. The bag 
contained ponchos and waterproof socks that were later supposedly 
delivered to al-Qaeda, while the phone was used by that acquaintance to 
make calls to co-conspirators in Britain.

*Silencing Palestinian-Americans*

Just as the Bush administration found the Geneva Conventions "quaint" 
and ignored them, so the principle of "innocent until proven guilty," a 
part of Western civilization since Roman times, has all but disappeared 
for Muslims who face accusations of "material support" for terrorism.

Such cases have, at times, involved high-profile men and once received 
significant media attention. Civil rights activist and University of 
South Florida professor Sami Al-Arian 
accused of being a leader of Palestinian Islamic Jihad (a State* 
*Department-designated terrorist organization), was, for instance, 
treated like a man already being punished for his crime even before his 
trial.  Previously, he had been a respected American-Muslim political 
leader with contacts in the White House and in Congress.  Now, walking 
to pre-trial meetings with his lawyers, his arms were shackled behind 
him, so that, humiliatingly, he had to carry his legal papers on his back.

Amnesty International described 
Al-Arian's pre-trial detention in Coleman Federal Penitentiary as 
"gratuitously punitive." It cited his 23-hour lockdown in his cell, the 
strip searches, the use of chains and shackles, the lack of access to 
any religious services, and the insistence on denying him a watch or 
clock in a windowless cell. He was transferred to 14 different prison 
facilities in 6 states. He ended up spending three and a half years in 
solitary confinement without being convicted of anything.  At his trial, 
the government called 80 witnesses, including 21 from Israel, while his 
counsel called no defense witnesses, only citing the U.S. Constitution. 
A Florida jury nonetheless acquitted him on half of the counts, and 
deadlocked on the other half.  (Ten out of 12 jurors wanted to acquit 
him on all charges.) He later struck a plea deal on one minor charge.

Today, the Palestinian-American professor is still in legal limbo 
under house arrest, awaiting a judge's ruling on whether he has to 
testify in a separate case. An articulate U.S. Muslim political leader, 
who helped bring in <http://archive.democrats.com/display.cfm?id=299> 
the Muslim vote for George W. Bush after the candidate came out publicly 
against the use of secret evidence 
in trials, when the Gore campaign did not and so contributed to his 
Florida victory in the 2000 presidential campaign, has been silenced for 
his openly expressed pro-Palestinian opinions.

Successful and influential Palestinian-American Ghassan Elashi, a 
founder and the chairman of what was once America's largest Muslim 
charity, the Holy Land Foundation, and Shukri Abu Baker, its president, 
were similarly silenced along with three other foundation officials.  
The two of them received prison sentences 
of 65 years for giving charity to orphanages and community organizations 
in Gaza (also supported by the European Union and the U.S. Agency for 
International Development). The Holy Land leaders were accused of giving 
"material support" to a foreign terrorist organization: Hamas, the 
elected government in Gaza.  There were no accusations of inciting or 
being involved in acts of violence. This case, like Professor Al 
Arian's, would never have been possible if Justice Breyer's views had 
prevailed at the Supreme Court.

Even then, it took a second trial before a jury returned a guilty 
verdict against the Holy Land leaders. Nancy Hollander, counsel for one 
of the men, summed up <http://www.democracynow.org/2009/5/29/holy_land> 
the situation this way: "The thought that somebody gets sixty-five years 
for providing charity is really shameful, and I believe this case will 
go down in history, as have others, as a shameful day." In 2012, the 
Supreme Court refused to rehear the case, and four of the five convicted 
men remain confined to the especially restrictive "communications 
management unit" at the U.S. penitentiary in Marion, Illinois, where 
Muslims make up <http://ccrjustice.org/cmu-factsheet> two-thirds of the 

There were also 246 unindicted co-conspirators named in the Holy Land 
Foundation case, including major Muslim organizations.  The case and the 
particularly long sentences sent a shot of fear 
<http://www.aclu.org/human-rights/report-blocking-faith-freezing-charity> through 
Muslim communities in the U.S., as was surely intended.

The men's daughters still speak out on their fathers' case. Noor Elashi, 
for example, told me, "His is the poster case for 'material support.'" 
  In the meantime, 15-minute weekly prison phone calls, monitored in 
real time from Washington, are the thinnest of threads to hold family 
relationships together, as are rare visits to distant prisons. Mariam 
Abu Ali once described to me her annual visit to her older brother Ahmed 
Abu Ali.  The expense was difficult to absorb: two flights, a rental 
car, and a motel for a three-day visit of about four hours a day, for a 
family already shouldering heavy debts for legal fees.

The real ordeal, though, was emotional, not financial. "They bring him 
in shackled at the waist and legs," she told me. "We see them take off 
the handcuffs as he puts his hands out through a gap in the door. It's 
emotionally draining... he's there but so far away behind the glass. 
Only one of us can hear him at a time as he speaks though a phone... 
I've tried to lip read when it isn't my turn, but it really doesn't 
work. I feel very exhausted and sometimes I fall asleep during the 
visit. I cry every time, especially when he leaves...  It's not like a 
death.  You don't grieve and then finish, because this is not in the 
past.  In fact, it is not even in the back of my mind -- it is always 
there... This is chronic after nine years and it is not going to end."

In itself, solitary confinement has devastating effects, as Dr. Atul 
Gawande has vividly pointed out 
and is becoming ever more common in U.S. prisons in breach of 
internationally recognized norms on the humane treatment of prisoners. 
  It tends to break the will of inmates, sometimes even robbing them of 
their sanity.  However, in its most extreme use, combining those special 
administrative measures with the isolation imposed in prison 
communication management units, it is mainly applied to American Muslims.

The stories of what happens to Muslim men today in U.S. prisons and of 
the judicial cases that land them there under the harshest of conditions 
bear a startling resemblance to the cages at Guantanamo Bay and the 
charade of a legal system that is still in operation there.

*Miscarriages of Justice*

In addition to the examples of prominent, formerly successful 
Palestinian-Americans, there are a series of haunting cases of newer 
Muslim arrivals in the U.S., each of them an evident miscarriage of 
justice.  These include the Fort Dix Five 
originally from Albania, and that of Imam Yassin Aref 
<http://nymag.com/news/features/yassin-aref-2011-7/>, an Iraqi Kurd.  
Their entrapment cases, typically based on "sting" operations 
manufactured by FBI informants, sent men respected in their communities 
into solitary confinement for long years on what were probably 
trumped-up charges. In such cases, the only "plot" is often manufactured 
by the government itself.

This, then, is the state of so many cases of "terrorism" in the U.S. 
today in which disparate Muslim men have been swept up in a system in 
which guilt is assumed and people's lives are quickly turned into waking 
nightmares in what used to be called the "justice system."  Some great 
miscarriages of justice do get overturned. Black Panther Robert King 
<http://www.bbc.co.uk/news/uk-england-cambridgeshire-19881352> spent 31 
years in prison, 29 in solitary confinement for a crime he did not 
commit. His release in 2001 came about by chance when his persistent 
letter writing attracted the attention of a young lawyer and the founder 
of The Body Shop, Anita Roddick, who became his champion alongside a 
grassroots campaign for his release.  Since then, King has himself 
campaigned at home and abroad for the release of his two colleagues in 
"the Angola Three," who still remain in prison, and against the system 
that could have broken him as it has so many others.

Thanks to the special administrative measures applied in his case, Ahmed 
Abu Ali cannot do what Robert King did, or what the lawyer and a friend 
of WikiLeaks informant Private Bradley Manning did to get his prison 
widely known, or what Mumia Abu Jamal 
<http://www.zcommunications.org/zspace/mumiaabu-jamal> has done 
throughout his 30 years in solitary confinement via his books and his 
talks on prison radio. Ahmed cannot contact the world outside in search 
of the support he and his family need, nor can his family members.

The painful impact of all this on the families is difficult to imagine. 
Chilean novelist and playwright Ariel Dorfman once wrote 
that torture "presupposes the... abrogation of our capacity to imagine 
someone else's suffering, to dehumanize him or her so much that their 
pain is not our pain. It demands this of the torturer... but also 
demands of everyone else the same distancing, the same numbness."

Perhaps such a state helps explain why people around the world are far 
more aware than most Americans of what happens to Muslim men in the 
post-9/11 "justice system."  The particular cruelty of the punishments 
they endure even before their unfair trials, will someday, like the 
abuses at Guantanamo, gain the attention they deserve.

/Victoria Brittain, journalist and former editor at the /Guardian/, has 
authored or co-authored two plays and four books, including /Enemy 
Combatant/ with Moazzam Begg. Her latest book, /Shadow Lives: The 
Forgotten Women of the War on Terror 
(Palgrave/Macmillan, 2013), has just been published.  This is her second 
for TomDispatch./

Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org
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