Guantánamo at Home
Civil rights violations are also becoming entrenched in prison policy. In December 2006 the Justice Department quietly set up a segregated facility, the Communication Management Unit, at the federal prison in Terre Haute, Indiana, for medium-security terrorism inmates. Nearly all the inmates transferred to Terre Haute are Muslims. All calls and mail (communication customarily off limits to prison officials) are monitored, and prisoners are required to communicate with each other only in English. The highest-level terrorists are typically sent to the Penitentiary-Administrative Maximum Facility, known as Supermax, in Florence, Colorado. Colorado Governor Bill Ritter is considering opening the prison's doors to the Guantánamo detainees; the facility, according to Ritter's spokesman, is "built for just that type of high-risk inmate." Amnesty International has been critical of conditions at Supermax, where prisoners have almost no opportunity for human interaction, physical exercise or mental stimulation--conditions many of the men faced at Guantánamo and that Hashmi faces in Manhattan. Indeed, one of the United States' most wanted terror suspects, Khalid al-Fawwaz, is fighting extradition to the United States on the grounds that the conditions in a prison like Supermax in Colorado breach Article Three of Britain's Human Rights Act, which prohibits torture and other inhuman or degrading treatment or punishment.
Of the six people, including Hashmi, being held under pretrial SAMs in the United States, three are under the jurisdiction of the US Attorney for the Southern District of New York. Stationed at ground zero of the political theater of 9/11, this Manhattan office has taken wide latitude in imposing extreme conditions of imprisonment. Before 2001, SAMs were used against high-level prisoners whose power and influence could inspire acts of violence outside prison (like the head of the Latin Kings gang, who ordered a hit from prison). Today, these are imposed more reflexively against suspects the government seeks to mark as dangerous, regardless of their demonstrated actions or influence outside prison. (Indeed, the US Attorney has not publicly claimed that Hashmi has reach outside the prison.) Moreover, the Southern District of New York is a major steppingstone to national office--and prosecuting terrorists has significant political cachet.
On the stage of American terror justice, US Attorneys across the country have become the lead actors. Featured prominently on the nightly news, they speak in ominous tones describing the importance of each latest terror indictment--plots foiled, sleeper cells discovered, terrorists nabbed. The public performance of these indictments reminds Americans of the grave dangers the nation faces and the need for special measures to protect us, even as it reassures us that the government is averting danger at every turn. The paucity of evidence in many of these cases and the inhumane treatment of suspects have gone remarkably unchecked by many judges. Such abrogations of rights and due process rarely receive significant media coverage.
In Miami, prosecutors are going back to court for the third time, seeking conviction on material-support charges of six men for a plot to blow up the Sears Tower. The nightly news in June 2006 trumpeted the arrest of seven "Muslim" men and the dashing of their plan to attack the Sears Tower as part of a jihad. (By the next day, however, even the FBI described the plan as "aspirational rather than operational.") The seven men are actually members of the Moorish Science Temple, a religious sect that blends elements of Christianity, Judaism, Islam and black nationalism. The case, lacking any concrete evidence of weapons or blueprints and using questionable informants (the jurors felt that an FBI informant led the men on), has already resulted in two mistrials. Yet the US Attorney has pressed for the third trial in order to "safeguard the community," even though no new evidence has come to light.
Media outlets across the country hyped "sleeper cells" discovered in Detroit in 2002 and Lodi, California, in 2005. Two men in Detroit were convicted in 2003 but had their sentences subsequently suspended (and the US Attorney was indicted) when it was revealed that the US Attorney concealed exculpatory evidence. In Lodi another FBI informant, who was paid $250,000 for his work, appears to have acted as an agent provocateur with father and son Umer and Hamid Hayat. The government succeeded in getting a conviction of the son using the contradictory and misleading confessions of the Hayats--both of whom sought to cooperate with investigators. (The father went so far as to claim that his son trained in a basement, including doing pole-vaulting exercises. When the FBI interviewer commented that the basement ceiling must have been very high, the father concurred.) A longtime FBI agent was going to testify for the Hayats' defense that this was "the most derelict and juvenile investigation" he had ever seen the FBI put forth, but the court disallowed the testimony.
Then there is the case of "terrorist leader" and University of South Florida professor Sami Al-Arian, detailed by Alexander Cockburn in The Nation ["The Persecution of Sami Al-Arian," March 19, 2007; "The Ongoing Persecution of Sami Al-Arian," July 21, 2008]. After more than a decade of surveillance, years of solitary confinement and a six-month trial that cost $50 million, the jury acquitted Al-Arian on the eight most serious charges (and deadlocked on the rest). The government pushed Al-Arian into taking a plea on one count and then reneged on its agreement by subpoenaing him before a grand jury. Refusing to appear, Al-Arian now faces contempt-of-court charges brought by the Assistant US Attorney for the Eastern District of Virginia. Judge Leonie Brinkema is considering dismissing the case. In early March, she questioned the US Attorney's actions in Al-Arian's plea agreement: "I think there's something more important here, and that's the integrity of the Justice Department."
In his confirmation hearing, Attorney General-nominee Eric Holder unequivocally declared that "Guantánamo will be closed," yet simultaneously pledged to "fight terrorism with every available tool." It is important to close a renegade prison in a remote corner of Cuba. But it is just as important, if much harder, to look at ourselves at home. It is here, in Lower Manhattan, Minneapolis and Miami, in our Justice Department, where we must shift the ground. It is here where US citizens and residents--in our federal court system and under our watch--await trial, often facing secret and specious evidence under inhumane conditions that rise to the level of cruel and unusual punishment. The task of ending Guantánamo requires that we examine and rebuild the political and judicial systems within our borders--to reform the Justice Department, the courts and prison policy. We would be wise to heed former Chief Justice Earl Warren's warning about the dangers lurking in our judicial processes: "It would indeed be ironic," Warren cautioned in 1967, "if, in the name of national defense, we would sanction the subversion of...those liberties...which [make] the defense of the nation worthwhile."