[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/
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
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
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
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.
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
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
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