Guantánamo at Home
Hashmi has been in solitary confinement at MCC awaiting trial since May 2007. Since October of that year he has been held under Special Administrative Measures (SAMs) imposed and then renewed by the attorney general. The government's authority to impose SAMs was established in 1996. Since 9/11, the standards for imposing them--and conditions for their renewal--have been significantly relaxed. Under the SAMs, Hashmi is allowed no contact with anyone--except his lawyer and, more recently, his parents--no calls, no letters, no talking to other prisoners through the walls, because his cell is electronically monitored inside and out. He must shower and go to the bathroom in view of the camera. He can write one letter a week to a single member of his family, but he cannot use more than three pieces of paper. He is forbidden any contact--directly or through his attorneys--with the news media. He can read newspapers but only portions approved by his jailers--and not until thirty days after publication. He is allowed only one hour out of his cell a day--which is periodically withheld--and is not allowed fresh air but is forced to exercise in a solitary cage. The SAMs pose a significant threat to Hashmi's mental health and his ability to participate fully in his defense. Their severity casts a pall of suspicion over him, in effect depicting him as guilty before he even enters the courtroom. His "proclivity for violence" is cited as the reason for these measures--despite the fact that he has never been charged with (let alone convicted of) committing an act of violence.
Moreover, through the Classified Information Procedures Act, enacted in 1981 to prevent graymail by US intelligence officers under prosecution, much of the evidence against Hashmi is classified, which means he will not be allowed to view much of the evidence in his trial. His lawyer went through a CIA-level clearance to be able to review it; however, because of national security claims, Hashmi's attorney is forbidden from discussing much of the government's evidence with Hashmi or with any outside experts who do not also have security clearance.
At Hashmi's January 23 hearing, Federal District Judge Loretta Preska heard the defense's motion challenging the conditions of his pretrial confinement. The defense presented evidence on the devastating impact long-term solitary confinement and sensory deprivation have on prisoners' mental as well as physical health and on their ability to participate in their defense. Defense lawyer Sean Maher cited the work of various medical experts and scholars like University of California, Santa Cruz, psychology professor Craig Haney, who concludes that "there is not a single published study of solitary or supermax-like confinement...that failed to result in negative psychological effects."
The defense asked for a modest set of changes in the conditions of Hashmi's confinement--that his elderly and disabled parents be allowed to visit him together, that he be allowed to exercise in MCC's recreational facility on the roof and with other prisoners, to participate in group prayer and to have a cellmate. The judge refused all these requests, siding with the US Attorney's tautological argument that the original imposition of SAMs dictating higher security measures proved the paramount national security considerations of Hashimi's case, thus rendering the conditions of his confinement legitimate and necessary. It is not surprising, then, that in cases like Hashmi's where SAMs have been imposed since 9/11, almost none have been lifted. Judge Preska also claimed that Hashmi's restrictions are "administrative rather than punitive" and thus constitutional.
Hashmi has spent nearly a year and a half under the SAMs in a federal detention center in Manhattan under the sanction of the US District Court for the Southern District of New York. The conditions of his pretrial confinement are not substantially more humane than those of many prisoners in Guantánamo, nor is his right to a fair trial in New York City unequivocally more protected than those of many foreign nationals facing US military commissions in other parts of the world. What, then, do we think will happen if the Guantánamo detainees are transferred and tried in federal courts?
The inhumane conditions of Hashmi's pretrial confinement are not aberrational. Canadian citizen and US legal resident Mohammed Warsame has been held for more than five years in Minneapolis without trial (most of it in solitary confinement under SAMs) despite a speedy-trial motion his lawyers filed more than three years ago. In December 2003 Warsame was secreted away for four days of "voluntary" questioning at a military base in northern Minnesota. Authorities believed he had information on Zacarias Moussaoui, since the two men had attended the same mosque in Minnesota. Held as a material witness, Warsame hardly knew Moussaoui and had no testimony to provide about him, even when brought to his trial. The government then filed material-support charges against Warsame, claiming he had taught English to Taliban nurses, had eaten in the same room with Osama bin Laden and sent $2,000 to people in Afghanistan the government claims were with the Taliban.