Since 9/11, the Department of Justice has prosecuted more than 500 terrorism cases, yet there remains scant public understanding of what these federal cases have actually looked like and the impact they have had on communities and families. Published by The Nation in collaboration with Educators for Civil Liberties, the America After 9/11 series features contributions from scholars, researchers and advocates to provide a systematic look at the patterns of civil rights abuses in the United States’ domestic “war on terror.”
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After the extrajudicial capture last month of Abu Anas al-Libi, the Libyan national accused of helping plot the 1998 embassy bombings in Kenya and Tanzania, many argued once again that trial in federal court was not appropriate because it gives the accused too many protections. My experience representing defendants facing terrorism charges in federal court has demonstrated just the opposite. In these cases, typically involving charges of providing “material support” to a designated foreign terrorist organization, the judicial system abandons its principles and overwhelmingly skews the odds against the accused.
One of the primary mechanisms tilting the scales against the accused is to hold him (or her) in jail before trial and impose so-called special administrative measures (“SAMs”). SAMs impose severe and extraordinary restrictions on the defendant’s ability to communicate with anybody outside his prison cell, and impair the ability of his lawyer to represent him.
Special administrative measures are applied administratively before a trial by the attorney general through a “finding” that there is a “substantial risk” the defendant’s “communications or contacts with persons could result in death or substantial bodily harm to persons.” The attorney general does not have to provide reasons for the finding publicly, and there is no provision for input by the defendant or anyone outside law enforcement. Rather, the finding is made solely by the head of the agency prosecuting the defendant in court and results in solitary confinement pending trial. SAMs are very much in the news these days because they have been imposed as a matter of course in numerous current terrorism cases: Dzhokhar Tsarnaev in Boston, and Mahdi Hashi, Ali Yasin Ahmed, Mohammed Yusef, as well as Abu Hamza, in New York.
I represented terror suspect Mohammed Warsame, a Canadian citizen with United States residency who was subjected one of the longest, if not the longest, periods of SAMs in this country’s history. Warsame’s experience is a chilling example of how SAMs leave the defendant at the mercy of the government.
Warsame was born in Somalia in 1973. He fled the country’s civil war when he was 17 and received political refugee status (and later citizenship) in Canada. Warsame had difficulty finding employment and adjusting to the West. In 1995, he entered into an arranged marriage with a Muslim legal permanent resident in Minneapolis. Although he immediately applied for resident alien status to live with his wife in Minneapolis, it wasn’t granted until 2002. He had to return to Canada one month after his marriage.
Disillusioned with life in Canada, Warsame left for Afghanistan in 2000, hoping to find an Islamic religious utopia under the Taliban. This was before 9/11, and the Taliban, allies of the United States in driving Russia out of Afghanistan, were not considered enemies of this country. He first went to Pakistan, where he was exposed to religious extremists who urged him to attend an Al Qaeda training camp. Warsame viewed it as a free place to stay. A pacifist, he had no idea what attendance at such a camp involved. He eventually made his way into Afghanistan to two training camps, where he lasted only a few months. Overweight and weak, he had no appetite for being a soldier. It was clear that life under the Taliban was no religious paradise. He repeatedly asked to leave the camps because he was tired, cold, and missed his family.
After eventually leaving the camps, Warsame had no money and no place to stay. He ended up at a guesthouse in Hyderabad run by Palestinian doctors. He stayed for several months, bringing food to patients at the clinic and teaching English to the staff to enable them to read labels on medicines. Disillusioned with the whole experience, he was finally able to borrow $1700 from an individual associated with Al Qaeda to return to Canada. He arrived in April 2001.
In 2002, his application for US residency was finally approved, and Warsame moved from Canada to Minneapolis to join his wife and their young daughter. Enjoying family life, he enrolled in a community college as a full-time student, earning good grades and working part-time as a tutor. Unbeknownst to him, however, the FBI began investigating him in July 2003, aware that he had briefly attended the same mosque as Zacharias Moussaoui in Minneapolis. The FBI tapped Warsame’s phones, conducted surreptitious “sneak-and-peek” searches of his apartment and car, and conducted physical surveillance with five or six agents assigned to watch him. Even though this investigation revealed that Warsame was not engaging in any illegal activity connected to Moussaoui, the FBI and US Attorney’s office decided to conduct an “ambush” interview on December 8, 2003.
At 9 that morning, three FBI agents appeared unannounced at Warsame’s apartment. Since they were familiar with his schedule, they knew he would be home alone after dropping his daughter off at school—which is what they wanted. Concerned about his immigration status, Warsame acquiesced to the agents’ request to enter. Without advising him of his rights, they stated they knew he had traveled to Pakistan. They also proposed going to a location that would “assure his safety,” lest people discover he was talking to the FBI. The FBI then drove Warsame 100 miles from his home to Camp Ripley, a National Guard facility in rural Minnesota. He had no idea where he was, no phone and no car. In the dead of winter there was almost nobody else at the camp.
There the government had set up an elaborate interrogation site: two adjacent houses which were specially outfitted with audio and video equipment so that a broad array of law enforcement personnel (including a live feed to the US Attorney’s office in New York City) could view Warsame and listen to what was said at all times. Notably, while they had the capability to record these interrogations, they did not do so.
After the first day’s questioning, Warsame was finally allowed to call his wife, who told him he had been stupid to go with the agents. Troubled, the next morning he told the agents he wanted to go home. They stalled, saying they were almost done, but then questioned him for several more hours. When Warsame finally refused to answer any more questions, the agents agreed to take him back to Minneapolis, but only after presenting him once again with a preprinted form stating that everything had been “voluntary.” Although Warsame earlier had refused to sign the form, at this point he agreed, believing this was the only way to get home.
As promised, Warsame was brought back to Minneapolis—but not to his home. He was brought to the federal building, where he was berated by an assistant US attorney for ending his cooperation. Warsame refused to answer more questions. He was immediately arrested on a material witness charge related to the 9/11 investigation and Moussaoui’s role in it. He was held without bail and flown to New York to pressure him to testify before a grand jury, though he was ultimately not called as a witness.
Six weeks after taking him to Camp Ripley and then to New York, the government returned Warsame to Minneapolis, filed five charges related primarily to attending the training camps and working at the guesthouse, and imposed special administrative measures.
The provisions of the Sixth Amendment establish the federal criminal justice system on an adversarial model, where the government and the defendant, as opposing parties, are to be of relatively equal strength. (Nobody would regard it as a meaningful Super Bowl if one team had to play blindfolded.) This system collapses in federal terrorism cases because the government enjoys overwhelming advantages, principally its ability to impose SAMs and classify evidence as well as its power to engage in vast surveillance and secrecy.
Studies show that people who are imprisoned before trial “are far more often convicted, far more often given a prison term, and far more often given a long prison term than those people who obtain their release.” By suffering punishment before trial, these defendants develop a fatalistic attitude toward their situation. Because they are also involuntarily accruing “time served,” a plea bargain offer becomes attractive, regardless of their innocence.
Warsame’s case demonstrates with frightening clarity how SAMs skew the adversarial system and compromise due process. He spent over five and a half years in pretrial solitary confinement in a 10' x 10' cell in a maximum security prison for convicted criminals. The hallway lights remained on twenty-four hours a day. There was no privacy: the toilet and shower could be viewed by anyone who passed the door. He was fed in his cell. The SAMs gave the government absolute control over who he saw, what he read, whom he talked to, what TV he watched and every other aspect of his life. His visits with his wife and daughter were conducted over closed circuit TV with no personal contact. He spent the great majority of his time on his bed with only the Koran to read.
SAMs not only suffocate the defendant but also gag the lawyer, who must agree in writing to comply. There were many subjects I could not discuss with Warsame or his family, including some of the evidence against him. It was nerve-wracking to always have to decide what could be discussed. This was no mere theoretical issue: the prosecution of attorney Lynne Stewart, based in part on her alleged violation of SAMs, was proceeding during Warsame’s case. She received a harsh sentence of ten years.
The UN identifies long-term solitary confinement as a form of torture and the effects on Warsame were clear. He became apathetic, lethargic and depressed. He rarely left his cell to exercise in the locked cell adjacent to his own. The social isolation was tortuous and agonizing.
The defense made five separate motions for conditional release, or to modify the conditions of Warsame’s confinement. Each was denied. Even our signature achievement—convincing the court to suppress statements obtained on the second day of questioning at Camp Ripley—worked against us; as soon as our motion was granted, the government appealed. Warsame continued to languish in solitary for the twenty-five months the government’s appeal was pending.
At one point the court finally seemed poised to order a modification of the conditions. However, the government objected that it was too dangerous to lift the SAMs. The court, intimidated by the government’s dire predictions and threat to appeal once again, retreated and stayed the order. Warsame’s SAMs remained in place.
After five and a half years of this pretrial isolation, Warsame was sinking fast. Understandably obsessed with his living conditions, he was losing interest in the case itself. The Court of Appeals continued to delay decision on the government’s appeal. There was still no trial date in sight.
In May 2009, the government agreed to drop four charges. Debilitated and clearly suffering from his prolonged isolation, Warsame entered a guilty plea to a charge of conspiracy to provide “material support” to a designated foreign terrorist organization, in this case Al Qaeda. He also agreed to deportation to Canada, though his wife and daughter still lived in Minnesota.
At the sentencing, the judge noted that he had “seen nothing in the record or the last five years of proceedings demonstrating that Warsame poses an immediate danger.” Why then had he refused to suspend or modify the SAMs?
While the judge also observed “nothing that adequately demonstrates that Warsame was part of a specific plot against the United States, and very little that suggests he was especially useful to Al Qaeda,” he refused to impose a sentence of time-served, instead adding another twenty-four months, for a total of ninety-two months, or almost eight years.
The judge’s deference throughout the case to the government’s bloated claims of national security is disturbing. Yet evidence indicates that the court’s deference is not aberrational but replicated in other terrorism cases in US courts. The plea deal suggests that Warsame never posed a security threat. That conclusion is reinforced by Warsame’s deportation: allowing him to simply leave the country contradicts the notion of immediate danger the government repeatedly asserted Warsame’s unmonitored communications posed.
The more plausible explanation for the SAMs is that, after devoting an incredible amount of time and resources for naught as far as Moussaoui or any other link to terrorism was concerned, the government adopted its harsh stance towards Warsame to avoid embarrassment and claim another “victory” in the War on Terror. The court went along with the charade. After forty years as a law professor and criminal defense lawyer, this case opened my eyes to a frightening new understanding: the protections that exist in the federal system are theoretical, not actual, for defendants accused of terrorism.
More in the ‘America After 9/11’ Series:
How Tarek Mehanna Went to Prison for a Thought Crime As the government embraces a “counter-radicalization” approach to counterterrorism, prosecutors are turning radical beliefs into criminal acts.
by Amna Akbar
Guantánamo in New York City Americans remain mostly blind to the abusive treatment of terror suspects on US soil.
by Jeanne Theoharis
Censored in Colorado Why did a Colorado prison prevent Fahad Hashmi from reading a Nation article about his incarceration?
by Jeanne Theoharis
Where’s the Outrage When the FBI Targets Muslims? The FBI employs the same repressive tactics as the NYPD in its broad surveillance of Muslim communities. Why does the FBI get a pass?
by Diala Shamas