The Case of Syed Hashmi

Syed Fahad Hashmi is a 29-year-old Muslim American citizen.  He has spent more than two years in solitary confinement awaiting trial at Metropolitan Correctional Center (MCC) in lower Manhattan. He is charged with two counts of providing and conspiring to provide material support to Al Qaeda and two counts of making and conspiring to make a contribution of goods or services to Al Qaeda. His trial is set for November 2009.  If convicted, he faces seventy years in prison.  His case raises concerns about the conditions of his detention, his ability to receive a fair trial, and threats to the First Amendment rights of him and others.

Hashmi came to the United States from Pakistan with his family when he was three and grew up in Flushing, Queens.  He attended Brooklyn College, majored in political science, and graduated in spring of 2003.  He then attended the London Metropolitan University in the United Kingdom; where he received an MA in international relations in October 2005.  

In June 2006, he was arrested by the British police at Heathrow Airport (he was about to travel to Pakistan, where he has family) on a warrant issued by the US government.  In May 2007, he was extradited to the United States, the first US citizen to be extradited under terrorism laws passed after 9/11. Since then, he has since been held in solitary confinement at MCC.

Under special administrative measures (SAMs) imposed in October 2007 by the former Attorney General, Hashmi must be held in solitary confinement and may not communicate with anyone inside the prison other than prison officials.  Family visits are limited to one person every other week for one and a half hours and cannot involve physical contact.  While his correspondence to members of Congress and other government officials is not restricted, he may write only one letter (of no more than three pieces of paper) per week to one family member.  He may not communicate, either directly or through his attorneys, with the news media.  He may read only designated portions of newspapers – and not until thirty days after their publication – and his access to other reading material is restricted.  He may not listen to or watch news-oriented radio stations and television channels.  He may not participate in group prayer.  He is subject to 24-hour electronic monitoring inside and outside his cell – including when he showers or relieves himself – and 23-hour lockdown.  He has no access to fresh air and must take his one hour of daily recreation – when it is given – inside a cage. As the expert testimony supplied by Hashmi’s attorneys in a pre-trial motion of December 2008 attests, the conditions of Hashmi’s detention may have severe physical and mental consequences and impair his mental state and ability to testify on his own behalf.

While former Acting Attorney General Keisler claimed that these measures are necessary because “there is substantial risk that [Hashmi’s] communications or contacts with persons could result in death or serious bodily injury to persons,”  Hashmi was held with other prisoners in a British jail for eleven months without incident.  The SAMs were renewed by Attorney General Mukasey in November 2008 and upheld by Judge Loretta Preska in January 2009, citing Hashmi’s “proclivity for violence.” There has been no change to the SAMs under the Obama Administration. Yet, Hashmi is not being charged and has never been charged with committing an actual act of violence.  Currently, according to research by the New York Times in February 2009, there are six people in the United States being held on pre-trial terrorism SAMs; three (including Hashmi) are under the jurisdiction of the Southern District of New York, which has long served as a stepping stone to national political office.

The US government alleges that early in 2004, a man by the name of Junaid Babar, also a Pakistani-born US citizen, stayed with Hashmi at his London apartment for two weeks.  According to the government, Babar stored luggage containing raincoats, ponchos, and waterproof socks in Hashmi’s apartment and then delivered these materials to the third-ranking member of Al Qaida in South Waziristan, Pakistan.  In addition, Hashmi allegedly allowed Babar to use his cell phone to call other conspirators in terrorist plots.  

The government has claimed that Babar’s testimony is the “centerpiece” of its case.  Babar, who has pleaded guilty to five counts of material support for Al Qaida, faces up to seventy years in prison.  While awaiting sentence, he has agreed to serve as a government witness in terrorism trials in Britain and Canada as well as in Hashmi’s trial.  Under a plea agreement reported in the media, Babar will receive a reduced sentence in return for his cooperation.  

The events described above comprise the main public allegations that the government has presented.  According to the rules of discovery in federal criminal cases, however, the government may present additional allegations up until the day before the trial begins.  This and other factors compromise Hashmi’s right to a fair trial.  The government may withhold evidence from his attorneys yet share that evidence with the judge. The government may share evidence with his attorneys but not allow Hashmi to see it. The lawyers for the case are bound by the SAMs and by the CIPA rules and thus cannot discuss the case with outside un-cleared experts—and may not discuss the classified evidence with Hashmi himself.  This poses a threat to counsel’s ability to prepare a defense and impinges on Hashmi’s right to a fair trial.

In addition to Babar’s testimony, much of the government’s case seems to hinge upon evidence about Hashmi’s beliefs, associations, and speech.  When Hashmi was a student at Brooklyn College, he was a member of Al Muhajiroun (ALM).  This group takes and advocates positions well outside the mainstream of American public opinion. The US government, however, has not designated ALM a terrorist organization nor deemed membership in it illegal.  While Hashmi’s beliefs, speech, and associations are constitutionally protected, the government may be tempted to emphasize them as evidence of his criminal intent, particularly in the absence of evidence of criminal action.  This could have a chilling effect on the constitutionally protected beliefs, speech, and associations of others, particularly in activist and Muslim communities.  Unlike other high-profile post-9/11 cases, in which the defendants were not particularly political, Hashmi is an activist.  The government’s increasing attention to this kind of political activity further raises the specter of a chilling effect on First Amendment rights throughout the country.

Hashmi’s case thus raises three concerns: first, the draconian conditions of his detention; second, the undermining of his Sixth Amendment right to a fair trial; third, the threats it poses to the First Amendment rights of Hashmi and other Americans.

Update on the Case

On Tuesday April 27, 2010, Syed Fahad Hashmi took a government plea bargain. He pleaded guilty to one count of conspiracy to provide material support for allowing an acquaintance to store waterproof socks, ponchos and raincoats in his apartment. On the eve of trial, the government dropped the other three charges. Fahad made this decision after having served three years in solitary confinement and one day after Judge Preska approved the government’s 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 heightened concerns as to whether a fair trial was even possible.

On June 9th, Syed Fahad Hashmi was sentenced to fifteen years in prison. With time already served (4 years total) and considerations for good behavior, he could be out in less than 10 years. In late summer, he was transferred to the high-security prison at the Florence Correctional Center in Florence, Colorado. He remains in solitary confinement and under SAMS. The government’s use of Special Administrative Measures and prolonged solitary confinment along with the attacks on due process in “terrorism” cases like Fahad’s continue and cast a pall on the US justice system.