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No Justice in Kafka’s America
Posted on Jun 12, 2011
By Chris Hedges
“In high school and then as a student at Brooklyn College, Fahad became a political activist, concerned about the plight of Muslims around the world and the civil liberties of Muslims in America,” he went on. “Growing up here in America, Fahad did not fear expressing his views. But I was scared for him and urged him not to speak out. He would remind me that everything he did was under the law. But having grown up in a Third World country, I had seen that it did not always work this way, and so I worried. He was monitored by law enforcement and quoted in Time magazine. But he kept speaking out. And then, with his arrest, my fears came true.”
Judge Loretta Preska denied Fahad bail partly on the grounds that he had no ties to family and community. His family and friends, who sat crowded together in the courtroom, listened in stunned silence. And then, after five months, Hashmi, already isolated in solitary confinement, was suddenly put under “special administrative measures,” known as SAMs. SAMs are the legal weapon of choice used by the state when it seeks to isolate and break prisoners. They were bequeathed to us by the Clinton administration, which justified SAMs as a way to prevent Mafia or other gang leaders from ordering hits from inside prison. The use of SAMs expanded widely after the attacks of 2001. They are frequently used to isolate terrorism case detainees before trial. SAMs, which were renewed by Barack Obama in October, severely restrict a prisoner’s communication with the outside world. They end calls, letters and visits with anyone except attorneys and sharply limit contact with family members. Fahad, once in this legal straitjacket, was not permitted to see much of the evidence against him under a legal provision called the Classified Information Procedures Act, or CIPA. CIPA, begun under the Reagan administration, allows evidence in a trial to be classified and withheld from those being prosecuted.
The weekly visits Hashmi’s family made to the jail in Manhattan were canceled. A single family member was permitted to visit only once every two weeks, and on a number of occasions the family member was inexplicably denied admittance. During the last five months of the trial Hashmi’s family was barred from visiting him. Anyone who has contact with a prisoner under SAMs is prohibited by law from disclosing any information learned from the detainee. This requirement, in a twist Kafka would have relished, makes it illegal for those who have contact with an inmate under SAMs—including attorneys—to speak about his or her physical and psychological condition.
Once the SAMs were imposed, “He wrote us occasionally—one letter on no more than three pages at a time—but he was allowed no correspondence or contact with anyone else,” his father said of his son. “In addition, because of Fahad’s SAMs, we were not allowed to discuss anything we heard from him, including his health or any details of his detention or what he was experiencing, with anyone else. It was like being suffocated.”
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“These years have brought deep disillusionment for my family in the American justice system,” his father said. “Fahad was restricted in reviewing much of the evidence against him, and even his attorney could not discuss much of the evidence with him. Secret evidence is something we knew from back home. The judge accepted the prosecutor’s motion to introduce Fahad’s political activities and speeches into the trial to demonstrate his mind-set. Where was the First Amendment to protect Fahad’s speech? Two days before the trial was set to begin, Judge Preska agreed to the prosecutor’s motion to keep the jury anonymous and kept under extra security—even though this could have frightened the jury and affected how they viewed Fahad.”
“The U.S. government is concerned about human rights in China and Iran,” he went on. “I wonder about Fahad’s rights, and how they have been blatantly violated in this great land. It seems like ‘innocent until proven guilty’ is only a saying. My son was treated as guilty until proven innocent.”
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