Guantánamo at Home

Two days after being sworn in as the forty-fourth president of the United States, Barack Obama signed three executive orders, banning torture, requiring the CIA to use the same methods as the military in interrogating terror suspects, shutting down the network of secret CIA prisons and shuttering the prison at Guantánamo Bay, Cuba, within a year. "What the cynics fail to understand," the president proclaimed in his inaugural address, "is that the ground has shifted beneath them."

But where exactly has the ground shifted? The places of focus--and much of the furor against Bush's terror politics over the past few years--are outside our nation's borders, in distant lands and faraway prisons. The problem of torture and other human rights violations in America's "war on terror" has been framed as a problem that happens largely beyond our shores. The underlying assumption is that if Guantánamo detainees were to be tried on United States soil and in federal courts (as many groups demand), such egregious abuses would not occur.

But Guantánamo is not simply an aberration; its closure will not return America to the rule of law or to its former standing among nations. Guantánamo is a particular way of seeing the Constitution, of constructing the landscape as a murky terrain of lurking enemies where the courts become part of the bulwark against such dangers, where rights have limits and where international standards must be weighed against national security. It is an outgrowth of a "war on terror" with historical precedents that took root under Clinton (in legislation like the 1996 Antiterrorism and Effective Death Penalty Act), spread like kudzu under Bush and infiltrated the fabric of the justice system. It is a pre-emptive strategy where stopping terrorism has come to mean detaining and prosecuting people who may not have committed any actual act of terrorism but whose religious beliefs and political associations ostensibly reveal an intention to do so.

T he day after President Obama signed the three executive orders, I sat in a courtroom for a hearing in the case of Syed Fahad Hashmi. Hashmi is a 29-year-old Muslim American citizen being held in solitary confinement at the federal Metropolitan Correctional Center (MCC) in Lower Manhattan. He is charged 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. If convicted, Hashmi faces seventy years in prison. He is also a former student of mine at Brooklyn College who graduated in 2003 and received his master's degree in international relations at London Metropolitan University in 2005.

Hashmi was apprehended in Britain on June 6, 2006, on a US warrant; his arrest was featured as the top story on the CBS and NBC nightly news programs, which used graphics blaring Terror Trail and Web of Terror. Held for eleven months without incident at Belmarsh Prison, he became the first US citizen to be extradited by Britain under new policies relaxing the standard for extradition in terrorism cases.

The Justice Department claims that the "centerpiece" of its case against Hashmi is the testimony of Junaid Babar. According to the government, in the beginning of 2004, Babar, also a United States citizen, stayed with Hashmi at his London apartment for two weeks. In his luggage, the government alleges, Babar had raincoats, ponchos and waterproof socks, which Babar later delivered to the third-ranking member of Al Qaeda in South Waziristan, Pakistan. It was alleged that Hashmi allowed Babar to call other conspirators in terror plots, using his cellphone. Babar, who was arrested in 2004 and has pleaded guilty to five counts of material support for Al Qaeda, faces up to seventy years in prison. While awaiting sentence, he has agreed to serve as a government witness in terror trials in Britain and Canada, as well as in Hashmi's trial. For his cooperation, Babar will be rewarded with a reduced sentence.

Material-support laws are predicated on guilt by association. They fashion a black box into which all sorts of constitutionally protected activities can be thrown and classified as suspect, if not criminal. Because there is little evidence in this case that links Hashmi directly to any criminal action, much of the government's case will hinge on establishing his intent. To do this, the government will likely focus on statements Hashmi has made about US foreign policy, the treatment of Muslims here and abroad and other political issues. Hashmi, who was a member of the New York political group Al Muhajiroun as a student at Brooklyn College, advocated positions well outside the mainstream of American public opinion. Indeed, he drew the attention of Time and CNN in May 2002 as a student activist and potential homegrown threat; both quoted him at a 2002 Brooklyn College meeting, calling America "the biggest terrorist in the world." The government, however, has not designated Al Muhajiroun a terrorist organization or deemed membership in the organization illegal. This prosecution thus has the potential to criminalize constitutionally protected political speech.

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