Guilty until proven innocent:
how to pre-convict and pre-punish an American Muslim
Written by Victoria Brittain
Sometimes, when you watch the strange,
repetitive political dance that swirls around the U.S. prison in Guantanamo
Bay, Cuba -- the president announcing yet again that he plans to “close” it and
the Republicans in Congress swearing that they won’t let him -- it’s hard not
to wonder what alternative universe we live in. The initial round of this
began on the day Barack Obama entered the Oval Office and circulated an
executive order meant to close that prison within a year. The latest
presidential “closing” announcement came just over two weeks ago. In
a major speech at National Defense University, Obama also
claimed that he would soon lift restrictions he had imposed in 2009 on sending
Guantanamo prisoners long cleared of any criminal activities back to
Yemen. Just last week, Congressional Republicans offered the usual
reply. They proposed to keep the prison open, whatever the president
wanted, “by barring the administration from transferring its terror suspects to
the United States or a foreign country such as Yemen.”
By now everyone knows that Guantanamo can’t
be closed, not by this administration or any other one imaginable. At
present, it is the scene of an extraordinary protest movement, now almost three
months old, by 103 prisoners using potential death by starvation to
bring attention to the nightmare that has been their lives behind bars in Cuba.
More than 11 years after its founding,
Guantanamo looks to Americans ever more like an offshore aberration, the last
of the walking dead that just won’t go down. As it happens, though, that institution
is anything but an aberration. It’s exactly what it was meant to
be. The Bush administration situated it just off the coast of Florida in
the first place because it wanted to avoid legality, justice, and the reach of
U.S. courts. It’s true that George W. Bush's top officials made a fetish
out of giving illegality -- including global kidnapping operations, torture interrogations, and aglobal string of
“black sites” -- a feel-good veneer of legalism. That was why, for
instance, the Department of Justice produced those infamous “torture memos” that, among other remarkable things, managed to
put the legal definition of torture in the hands and mind of the torturer. But the goal of the president,
Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and other key
officials -- some of whom reportedly had torture techniques demonstrated for them in the White House -- had
everything to do with leaving legality behind.
In 2001, they were eager above all to “take the gloves off.” They wanted to be able to do
anything they cared to do on their self-proclaimed “global battlefield.”
They wanted to lay hands -- not theirs, admittedly, but delegated ones -- as
violently as possible on the prisoners swept up there: the worst of the worst,
minor footsoldiers of al-Qaeda or the Taliban, people who simply had enemies
who betrayed them, and the innocent who wandered into or were trapped in this
hell. It didn’t matter. They weren’t into making distinctions or charging
prisoners with crimes or anything so banal. What they wanted was control,
total control, over the bodies of their enemies. It wasn’t a nice
thing. It wasn’t a pretty thing. It wasn’t the sort of thing you
said in polite company or (most of the time) in the media, which, in one of the
small linguistic scandals of the era took to replacing the simple, easy to
define word “torture” with the administration’s euphemistic phrase “enhanced interrogation techniques.”
They wanted to revel in their power and their
glory in the Greater Middle East, but also in the dark corners of those black
sites and in that jewel-in-the-crown of offshore injustice, Guantanamo. They
were proud of their Cuban prison. They meant it to be a way of life and
now, of course, no one can get rid of it. It’s not possible. The
Obama method of “closing” it means transferring to a supermax prison on U.S.
soil up to 50 prisoners that top American officials believe to
be guilty of something, but can’t bring to trial, largely because “confessions”
were taken from them by the dirtiest possible methods that won’t hold up in any
court of law. Even this, however, wouldn’t close Guantanamo. It
would simply embed its methodology in the heart of the U.S. prison and judicial
system (which is why such a plan has sarcastically been dubbed “Gitmo North”).
In fact, in certain ways, like so many ugly things that wars bring home, aspects of what
might be called the Guantanamo Syndrome have already crept deep into our
American world, whether Congress approves or not. As Victoria Brittain,
author of Shadow Lives: The Forgotten Women of the War on Terror,
makes clear in her latest TomDispatch post, pre-punishment and pre-conviction,
Guantanamo-style, are increasingly everyday by-products of the war on terror at
home. Tom
Guilty Until Proven
Innocent
How to Pre-Convict and
Pre-Punish an American Muslim
By Victoria Brittain
A four-month hunger strike, mass
force-feedings, and widespread media coverage have at last brought Guantanamo,
the notorious offshore prison set up by the Bush administration early in 2002,
back into American consciousness. Prominent voices are finally calling on
President Obama to close it down and send home scores of prisoners who, years
ago, were cleared of wrongdoing.
Still unnoticed and out of the news, however,
is a comparable situation in the U.S. itself, involving a pattern of
controversial terrorism trials that result in devastating prison sentences
involving the harshest forms of solitary confinement. This growing body
of prisoners is made up of Muslim men, including some formerly well-known and
respected American citizens.
At the heart of these cases is a statute from
the time of the Clinton presidency making it a crime to provide “material
support” to any foreign organization the government has designated as
“terrorist.” This material support provision was broadened in the USA
PATRIOT Act, passed by Congress just after the 9/11 attacks, and has been upheld
by a 2010 Supreme Court ruling in the case of Holder v. Humanitarian Law Project.
Today, almost any kind of support, including humanitarian aid, training,
expert advice, “services” of all sorts, or “political advocacy” undertaken in
“coordination” with any group on the State Department’s terrorist list, can
lead to such a terror trial. The Court has never defined what “coordination”
actually means.
In that Supreme Court ruling, Justice Stephen
Breyer was joined in dissent by Justices Ruth Bader Ginsburg and Sonia
Sotomayor. Justice Breyer proposed a narrower interpretation of material
support: individuals should not be subject to prosecution unless they knowingly
provided a service they had reason to believe would be used to further
violence. At the time, the position of the dissenting judges was backed
by key editorials in major newspapers. In the three years since, however,
more material support cases have resulted in long sentences with very little
public notice or critical comment.
Pre-Trial Punishment
In the U.S. these days, the very word
“terror,” no less the charge of material support for it, invariably shuts down
rather than opens any conversation. Nonetheless, a decade of researching
a number of serious alleged terrorism cases on both side of the Atlantic,
working alongside some extraordinary human rights lawyers, and listening to Muslim women in Great Britain and the U.S.
whose lives were transformed by the imprisonment of a husband, father, or
brother has given me a different perspective on such cases.
Perhaps most illuminating in them is the
repeated use of what’s called “special administrative measures” to create a
particularly isolating and punitive atmosphere for many of those charged with
such crimes, those convicted of them, and even for their relatives. While
these efforts have come fully into their own in the post-9/11 era, they were
drawn from a pre-9/11 paradigm. Between the material support statute and
those special administrative measures, it has become possible for the
government to pre-convict and in many cases pre-punish a small set of Muslim
men.
Take the case of Ahmed Abu Ali, a young
Palestinian-American who is now serving life in the Administrative Maximum
Facility, a supermax prison in Florence, Colorado, and is currently under
special administrative measures that restrict his communications with the
outside world. A university student in Saudi Arabia, he was arrested in 2003 by
the Saudi government and held for 20 months without charges or access to a
lawyer. The Washington
Post reported that the U.S. government finally asked for his
return just as his family filed a lawsuit in Washington.
At the time, it seemed like a victory for the
family and the various human rights organizations that had supported them, but
on arrival Ahmed was charged with material support for al-Qaeda and plotting to
assassinate President George W. Bush. The evidence to convict him came from an
anonymous alleged co-conspirator and from taped confessions he made, evidently
after being tortured in Saudi Arabia, a common practice there. The evidence of his torture
was contestedat his trial. The case was described by a staff member of Amnesty International USA
as “unusual in the annals of U.S. outsourcing of torture.” An appeal of
Ahmed’s 30-year sentence actually resulted in the imposition of an even more
severe sentence: life without parole.
In addition, special administrative measures
have been applied to him. These were originally established in 1996 to stop communications
from prison inmates who could “pose a substantial risk of death or serious risk
of injury.” The targets then were gang leaders. Each special administrative
measure was theoretically to be designed to fit the precise dangers posed by a
specific prisoner. Since 9/11, however, numerous virtually identical measures
have been applied to Muslim men, often like Ahmed Abu Ali with no history of
violence.
A question to Ahmed’s sister about how her
brother is doing is answered only with a quick look. She is not allowed to say
anything because special measures also prohibit family members from disclosing
their communications with prisoners. They similarly prevent defense lawyers
from speaking about their clients. It was for a breach of these special
measures in relation to her client, the imprisoned blind sheikh Omar
Abdel-Rahman, that lawyer Lynne Stewart was tried and sentenced to 10 years in
prison in the Bush years.
Although these measures have been contested
in court, few have ever been modified, much less thrown out. Those court
challenges and evidence provided to the European Court of Human Rights by
American lawyers have, however, provided a window into what one of them
described as a regime of “draconian and inhumane treatment.”
Under such special administrative measures at
the Metropolitan Correction Center in New York City, a prisoner lives with
little natural light, no time in communal areas, no radio or TV, and sometimes
no books or newspapers either, while mail and phone calls are permitted only
with family, and even then are often suspended for minor infractions. Family
visits are always no-contact ones conducted through plexiglass.
“The conditions have quite simply wreaked
havoc on Mr X’s physical and mental well-being,” one lawyer wrote for the
European Court of Human Rights, describing a seven-month period in which a
prisoner at the Metropolitan Correction Center was allowed no family phone calls.
Another highlighted his client’s lost concentration, which made it impossible
to work on his case effectively. “Their world shrinks dramatically,” was the
way Joshua Dratel, a lawyer who has represented several men under these
measures, described the
situation.
In cases where special administrative
measures are in place pre-trial, such as the well-documented ordeal of American
post-graduate student Syed Fahad Hashmi, lawyers have often been obliged to prepare
cases without actually sitting with their clients, or being able to show them
all court materials. After three pre-trial years mainly in solitary confinement
under special administrative measures at the Metropolitan Correction Center,
Hashmi accepted a government plea bargain of one count of material support for
terrorism and was given a 15-year sentence.
His crime? He allowed an acquaintance to stay
at his student apartment in London, use his cell phone, and store a duffel bag
there. The bag contained ponchos and waterproof socks that were later
supposedly delivered to al-Qaeda, while the phone was used by that acquaintance
to make calls to co-conspirators in Britain.
Silencing Palestinian-Americans
Just as the Bush administration found the
Geneva Conventions “quaint” and ignored them, so the principle of “innocent
until proven guilty,” a part of Western civilization since Roman times, has all
but disappeared for Muslims who face accusations of “material support” for
terrorism.
Such cases have, at times, involved
high-profile men and once received significant media attention. Civil rights
activist and University of South Florida professor Sami Al-Arian, accused of being a leader of Palestinian
Islamic Jihad (a StateDepartment-designated terrorist organization), was, for
instance, treated like a man already being punished for his crime even before
his trial. Previously, he had been a respected American-Muslim political
leader with contacts in the White House and in Congress. Now, walking to
pre-trial meetings with his lawyers, his arms were shackled behind him, so
that, humiliatingly, he had to carry his legal papers on his back.
Amnesty International described Al-Arian's pre-trial detention in Coleman
Federal Penitentiary as "gratuitously punitive." It cited his 23-hour
lockdown in his cell, the strip searches, the use of chains and shackles, the
lack of access to any religious services, and the insistence on denying him a
watch or clock in a windowless cell. He was transferred to 14 different prison
facilities in 6 states. He ended up spending three and a half years in solitary
confinement without being convicted of anything. At his trial, the
government called 80 witnesses, including 21 from Israel, while his counsel
called no defense witnesses, only citing the U.S. Constitution. A Florida jury
nonetheless acquitted him on half of the counts, and deadlocked on the other
half. (Ten out of 12 jurors wanted to acquit him on all charges.) He
later struck a plea deal on one minor charge.
Today, the Palestinian-American professor is
still in legal limbo, under house arrest, awaiting a judge’s ruling
on whether he has to testify in a separate case. An articulate U.S. Muslim
political leader, who helped bring in the
Muslim vote for George W. Bush after the candidate came out publicly against
the use of secret evidence in trials, when the Gore campaign did not
and so contributed to his Florida victory in the 2000 presidential campaign,
has been silenced for his openly expressed pro-Palestinian opinions.
Successful and influential
Palestinian-American Ghassan Elashi, a founder and the chairman of what was
once America’s largest Muslim charity, the Holy Land Foundation, and Shukri Abu
Baker, its president, were similarly silenced along with three other foundation
officials. The two of them received prison sentences of 65 years for giving charity
to orphanages and community organizations in Gaza (also supported by the
European Union and the U.S. Agency for International Development). The Holy
Land leaders were accused of giving “material support” to a foreign terrorist
organization: Hamas, the elected government in Gaza. There were no
accusations of inciting or being involved in acts of violence. This case, like
Professor Al Arian’s, would never have been possible if Justice Breyer’s views
had prevailed at the Supreme Court.
Even then, it took a second trial before a
jury returned a guilty verdict against the Holy Land leaders. Nancy Hollander,
counsel for one of the men, summed up the
situation this way: “The thought that somebody gets sixty-five years for
providing charity is really shameful, and I believe this case will go down in
history, as have others, as a shameful day.” In 2012, the Supreme Court refused
to rehear the case, and four of the five convicted men remain confined to the
especially restrictive “communications management unit” at the U.S.
penitentiary in Marion, Illinois, where Muslims make up two-thirds
of the inmates.
There were also 246 unindicted
co-conspirators named in the Holy Land Foundation case, including major Muslim
organizations. The case and the particularly long sentences sent a shot of fear through Muslim communities in the U.S., as
was surely intended.
The men’s daughters still speak out on their
fathers’ case. Noor Elashi, for example, told me, “His is the poster case for
'material support.'” In the meantime, 15-minute weekly prison phone
calls, monitored in real time from Washington, are the thinnest of threads to
hold family relationships together, as are rare visits to distant prisons.
Mariam Abu Ali once described to me her annual visit to her older brother Ahmed
Abu Ali. The expense was difficult to absorb: two flights, a rental car,
and a motel for a three-day visit of about four hours a day, for a family
already shouldering heavy debts for legal fees.
The real ordeal, though, was emotional, not
financial. “They bring him in shackled at the waist and legs,” she told me. “We
see them take off the handcuffs as he puts his hands out through a gap in the
door. It’s emotionally draining… he’s there but so far away behind the glass.
Only one of us can hear him at a time as he speaks though a phone… I’ve tried
to lip read when it isn’t my turn, but it really doesn’t work. I feel very
exhausted and sometimes I fall asleep during the visit. I cry every time,
especially when he leaves… It’s not like a death. You don’t grieve
and then finish, because this is not in the past. In fact, it is not even
in the back of my mind -- it is always there… This is chronic after nine years
and it is not going to end.”
In itself, solitary confinement has
devastating effects, as Dr. Atul Gawande has vividly pointed out, and is becoming ever more common in U.S. prisons
in breach of internationally recognized norms on the humane treatment of
prisoners. It tends to break the will of inmates, sometimes even robbing
them of their sanity. However, in its most extreme use, combining those
special administrative measures with the isolation imposed in prison
communication management units, it is mainly applied to American Muslims.
The stories of what happens to Muslim men
today in U.S. prisons and of the judicial cases that land them there under the
harshest of conditions bear a startling resemblance to the cages at Guantanamo
Bay and the charade of a legal system that is still in operation there.
Miscarriages of Justice
In addition to the examples of prominent,
formerly successful Palestinian-Americans, there are a series of haunting cases
of newer Muslim arrivals in the U.S., each of them an evident miscarriage of
justice. These include the Fort Dix Five, originally from Albania, and that of Imam Yassin Aref,
an Iraqi Kurd. Their entrapment cases, typically based on “sting”
operations manufactured by FBI informants, sent men respected in their
communities into solitary confinement for long years on what were probably
trumped-up charges. In such cases, the only “plot” is often manufactured by the
government itself.
This, then, is the state of so many cases of
“terrorism” in the U.S. today in which disparate Muslim men have been swept up
in a system in which guilt is assumed and people’s lives are quickly turned
into waking nightmares in what used to be called the “justice system.”
Some great miscarriages of justice do get overturned.Black Panther Robert King spent 31 years in prison, 29 in
solitary confinement for a crime he did not commit. His release in 2001 came
about by chance when his persistent letter writing attracted the attention of a
young lawyer and the founder of The Body Shop, Anita Roddick, who became his
champion alongside a grassroots campaign for his release. Since then,
King has himself campaigned at home and abroad for the release of his two
colleagues in “the Angola Three,” who still remain in prison, and against the
system that could have broken him as it has so many others.
Thanks to the special administrative measures
applied in his case, Ahmed Abu Ali cannot do what Robert King did, or what the
lawyer and a friend of WikiLeaks informant Private Bradley Manning did to get his prison conditions widely known, or what Mumia Abu Jamal has
done throughout his 30 years in solitary confinement via his books and his
talks on prison radio. Ahmed cannot contact the world outside in search of the
support he and his family need, nor can his family members.
The painful impact of all this on the
families is difficult to imagine. Chilean novelist and playwright Ariel Dorfman
once wrote that torture “presupposes the… abrogation of our
capacity to imagine someone else’s suffering, to dehumanize him or her so much
that their pain is not our pain. It demands this of the torturer… but also
demands of everyone else the same distancing, the same numbness.”
Perhaps such a state helps explain why people
around the world are far more aware than most Americans of what happens to
Muslim men in the post-9/11 “justice system.” The particular cruelty of
the punishments they endure even before their unfair trials, will someday, like
the abuses at Guantanamo, gain the attention they deserve.
Victoria Brittain, journalist and former
editor at the Guardian, has authored or co-authored two
plays and four books, including Enemy Combatant with Moazzam Begg. Her latest
book, Shadow Lives: The Forgotten Women of the War on Terror (Palgrave/Macmillan, 2013), has
just been published. This is her second piece for TomDispatch.