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.