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The Other Guantanamo Bay

Due to a 2010 Supreme Court ruling, American Muslims are being pre-convicted and pre-punished on US soil.

| Mon Jun. 10, 2013 1:26 PM EDT

Dr. Sami Al-Arian, accused of being a leader of Palestinian Islamic Jihad, has been in legal limbo for years.

This story first appeared on the TomDispatch website.

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 US 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.

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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 US 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 US 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 US 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 contested at his trial. The case was described by a staff member of Amnesty International USA as "unusual in the annals of US 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.

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