On Tuesday April 27, Fahad Hashmi took a government plea bargain. He pleaded guilty to 1 count of conspiracy for allowing an acquaintance to store waterproof socks, ponchos and raincoats in his apartment. The government dropped the other 3 charges. Fahad made this decision after having served 3 long years in solitary confinement and one day after Judge Preska approved the government’s recent request for an anonymous jury with extra security measures. In addition to the use of secret evidence and indefinite solitary confinement in Fahad’s case, the move to have an anonymous jury raised already heightened concerns as to whether a fair trial was even possible. With sentencing to happen on June 7, Fahad faces a maximum of 15 years, as opposed to the 70 years he might have faced if he had been convicted on all 4 counts. With time already served (4 years total) and considerations for good behavior, Fahad could be out in less than 10 years. It is of note that on the eve of the trial the government was willing to shave 55 years off the potential sentence.
Today’s decision does not in any way detract from the importance of the work we’ve been doing and the civil rights and human rights issues that Fahad’s case has raised. The government’s use of Special Administrative Measures and the attacks on due process in “terrorism” cases like Fahad’s continue and cast a pall on the US justice system. For that reason, we plan to hold our usual vigil on Monday night outside the Metropolitan Correctional Center. We hope you will spread the word and join us.
We will be posting further thoughts and analysis on Fahad’s case and the attendant issues in the coming week.
CUNY 4 Fahad
Theaters Against War
Educators for Civil Liberties
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Posted in General Info, Trial Watch, tagged anonymous jury, fair trial, judicial process, media, pre-trial publicity, Sixth Amendment, Syed Fahad Hashmi, United States v. Ross, United States v. Stewart, voir dire on April 27, 2010 |
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Yesterday, in a ruling, Judge Preska granted the government’s eleventh-hour motion for an anonymous jury. The government requested three things with respect to the jury:
1) the potential jurors on the voir dire panel, and the jurors and alternates selected for the petit jury, not reveal their names, addresses, or places of employment;
2) during trial, the jurors be kept together during recesses and taken to or provided lunch as a group each by the United States Marshals Service; and
3) at the beginning and end of each trial day, the jurors be transported together by the United States Marshals Service between the courthouse and an undisclosed central location, at which they can assemble from, or leave for, their respective communities.
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Judge Preska’s ruling yesterday morning to deny Fahad access to a public jury is just another manifestation of the lack of due process in his trial, and will serve to enable the complicity of our judicial system in the abridgment of his rights as a citizen and human being. The motion says jurors, the very people deciding fate, should not be required to disclose their names, addresses or places of employment, and that they be kept under the watchful eyes of the U.S. Marshal Service. As William Fisher points out, the amount of privacy that the potential jurors are afforded when asked questioned raises the issue of the definition of “impartial jury.” Not to mention these types of legal proceedings are only used in rare instances, for seriously dangerous defendants such as the mobster John Gotti and the 1993 World Trade Center bomber. It creates in the minds of the jury that Fahad himself is dangerous even before the trial begins. Even by the government’s worst suspicions about Fahad, he nowhere meets the precedent for anonymous juries.
by Jamie Chosak
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This morning I woke up thinking about why the SAMs (special administrative measures) that keep Fahad in solitary confinement have not been lifted — lifting them would have meant changing legal strategy, it would have been an admission by the government that Fahad is harmless. Keeping him in such conditions feeds into the perception that he is dangerous, invites the public to speculate, Would the government keep an innocent man in such conditions?
I returned to Judge Preska’s decision, U.S. v. Hashmi, 621 F. Supp.2d 76) denying the defense motion that the use of SAMs in Fahad’s case was unconstitutional. In her analysis of whether the Bureau of Prisons violated any fundamental rights with the use of these measures, Judge Preska considered whether the regulations were “reasonably related to legitimate penological objectives, or whether [they] represent[ed] an exaggerated response to those concerns,” under a four-factor test from the Supreme Court in Turney v. Safley, 482 U.S. 78):
[F]irst, whether there is a valid, rational connection between the regulation and the legitimate governmental interest used to justify it; second, whether there are alternative means for the prisoner to exercise the right at issue; third, the impact that the desired accommodation will have on guards, other inmates, and prison resources; and fourth, the absence of ready alternatives.
Id. at 86. (citing Turner at 89-91) (internal citations omitted)
The judge only really considered the first factor (supposedly, because the defense at the time did not offer alternative solutions on how the Bureau of Prisons could better manage its security concerns), finding that “[t]he Acting Attorney General requested that the BOP implement the measures because of the risk that Hashmi’s communications could result in death or seriously bodily injury to other persons. The restrictions are a rational means toward that legitimate penological objective.” Id. As for the basis of the Attorney General’s conclusion, Judge Preska considered, “evidence of the Defendant’s willingness to provide aid to Al-Qaeda through his cell phone and use of his apartment; the Defendant’s stated intention to overthrow the United States through whatever means necessary; and the Defendant’s threatening statements to British authorities.” Id.
In sum, the government made out its case for SAMs by merely bringing the flimsy charges (the storage of ponchos and socks and the use of a cell phone) the case rests on and pointing to Fahad’s (understandably) angry utterances at the time he was apprehended at Heathrow Airport. (more…)
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Yesterday, the Center for Constitutional Rights, The Council on American Islamic Relations-New York, and Amnesty International released an open letter expressing serious concern over the upcoming trial of Syed Fahad Hashmi. The letter urges the Attorney General, Eric Holder to both review and revise Department of Justice regulations which govern the implementation of Special Administrative Measures. SAMs can be imposed on inmates past 120 days when the Department of Justice deems it reasonably necessary “because there is a substantial risk that an inmates communication or contacts with persons could result in death or serious bodily injury to persons or substantial property would entail the risk of death or serious bodily injury to persons.” The open letter expresses concern over whether Fahad has even been informed of the reasons for the imposition of the SAMs.
While I understand that the Department of Justice has a duty protect both people and classified information, I fail to understand why this results in conditions of confinement that are cruel, inhuman and yes…by international standards rise to the level of torture. For three years before he has even faced trial, Fahad has been in a solitary cell, in downtown Manhattan, unable to speak to other prisoners. He is taken to exercise in a small cage inside the prison for one hour a day and is not permitted access to any natural air or sunlight. He has only been allowed outside contact with his immediate family on a limited basis and his attorneys. He is under constant surveillence when he uses the toilet, showers or meets family or his attorneys. He is forbidden from listening any televised or radio news and cannot have access to newspaper more current than thirty days which are censored by the government.
Where is that familiar phase we all heard in fourth grade social studies class, “innocent until proven guilty”?
I was happy to read that these three organizations came together to write a letter regarding this issue. However, I can’t help but be incredibly disappointed with the silence of the other human rights and civil liberties organizations on this issue. Prolonged isolation in solitary confinement for both the accused and the guilty implicate serious human rights issues. (more…)
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