JUSTICE 4 FAHAD

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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