All right, y'all, welcome back to the show.
Santa War Radio.
I'm Scott Horton.
And our next guest is Jean Theoharis.
She's from Educators for Civil Liberties.
Their website, appropriately enough, is educatorsforcivilliberties.org.
Welcome to the show, Jean.
How are you?
Thanks so much for having me.
I'm good.
How are you?
I'm doing great.
And please tell me how to say your last name.
Oh, you were perfect.
It was perfect.
OK, there you go.
All right, nice and easy.
OK, good.
So now this is an important story, a warning to everyone.
It's about a guy with a funny name.
So maybe if he was somewhere else at Liberty, he would wear a funny hat.
And so maybe to you, he doesn't matter at all, but matters to me.
And if only because, just like my mom taught me when I was a little kid, yeah, but if they can do that to this guy, then they can do it to you, too.
Maybe you could internalize a lesson like that.
Please tell us the story of Syed Fahad Hashmi.
Well, he was actually a student of mine at Brooklyn College in 2000.
Yeah.
Yeah, he went to Brooklyn College, got his bachelor's in political science and then went on to get his master's at London Metropolitan University in international relations.
And while he was getting his master's, an acquaintance from New York asked to come stay with him for two weeks in basically early 2004.
And then in June of 2006, as he was preparing to kind of leave Great Britain to go to Pakistan to visit family, he was arrested on a U.S. warrant on basically four charges of material support to terrorism, because that acquaintance who had stayed with him in his apartment for two weeks in 2004 had in his luggage ponchos, raincoats and waterproof sacks that the acquaintance then allegedly took and gave to the third ranking member of al-Qaeda to help the insurgency in Afghanistan.
Well, after the top two guys, they have a lot of third level guys there in al-Qaeda.
They do have a lot of third level guys.
So anyway, so basically...
Are you sure you're not the third level guy in al-Qaeda sent him to England off in the first place to go to school, right?
I guess so, I don't know.
Well, under the standards of evidence here, it seems like it's just as reasonable a case.
I mean, from what I can tell by reading about it, Jean, it seems like they didn't try to make the case that this guy was al-Qaeda, that he was deliberately providing al-Qaeda safe house to this guy that possessed the raincoats and galoshes, weaponized galoshes, I guess.
But they're using the guy who was supposedly the bad guy in this situation, who was staying at his house.
He's the state's witness.
They flipped him and they're using him not to get somebody higher than him.
They're not even pretending that they're flipping him to get someone higher than him.
They're flipping him to get someone lower than him on the chain.
Somebody who let him stay in the living room.
Right, right.
And I think this speaks to kind of the nature of these material support charges and how slippery and I think how much they criminalize association, right?
I mean, previously, you needed to have either committed a criminal act or tried to commit a criminal act.
And like you're saying, Mr. Hashmi, the government never alleged he had direct contact with al-Qaeda, that he was a member of al-Qaeda.
None of that, right?
It was that he had let this person stay with him and in this person's luggage were these materials that were ostensibly then taken to al-Qaeda.
So it's like having John Gotti.
It's like flipping John Gotti and using him to testify against the hitman that he hired.
And I think why this is of such importance, I think, to us as people who care about the kind of state of the law is then for the next, basically, Mr. Hashmi fights his extradition to the United States, worried about the kind of treatment he's going to face.
He becomes the first U.S. citizen extradited under these new laws, you know, passed since 9-11.
And then for the next three years, he is held pre-trial in solitary confinement.
I'm sorry.
I should have done better research before the show to start.
Are you a professor of law or what is it that you teach, by the way?
I am a professor of political science.
Oh, okay.
I'm sorry.
Please go ahead.
Yeah.
So I am a professor of political science.
I had him as a student in a senior seminar.
I teach on kind of contemporary and post-civil rights racial politics.
In 2002, he wrote a seminar paper for me, actually, on the kind of denial of civil liberties that Muslim groups were facing in the United States in the wake of September 11th.
So obviously, there was something very kind of chilling and very personally kind of moving.
Then you sort of fast forward many years and then here.
I was going to ask, I'm not sure if you know this or not.
It's more of a legal question.
But do you know if it's the Patriot Act that describes the powers that have been used against this guy, the newly re-signed, reauthorized Patriot Act?
Well, I mean, I think to be, I mean, material support actually is instituted first under Bill Clinton and then strengthened and expanded under the Patriot Act.
But it actually gets its beginnings in the 90s.
Yeah, in 1996, anti-terrorism.
Exactly.
Brings in a number of these, you know, kind of previews many of the tactics that then will, again, be taken up much, much more widely.
And also now on the speedy trial thing, and I'm sorry, again, I know you're not a lawyer, but is there not a time limit on what's a speedy trial?
A speedy and public trial is guaranteed in the U.S.
Exactly.
I mean, I think one of the things, again, just much of the evidence in his case was classified under something called FIPA.
And FIPA was actually passed in the early 80s for a completely different purpose.
It was passed to prevent gray mail by U.S. intelligence officers that were being prosecuted, right?
So they passed this law basically to allow for, you know, classifying certain evidence, right?
And then you fast forward to kind of post-9-11, and FIPA is used in a very different way to allow classified evidence in federal courts.
Now, you can imagine this makes it extremely difficult to defend someone because that person cannot see the evidence against them.
And the lawyers seeking to sort of defend people who, you know, who, again, are facing classified evidence have to go through a kind of CIA-level clearance even to review the evidence themselves, and they can't show it to their clients, right?
So Mr. Hashman doesn't get to see evidence against him, and it takes, you know, more than six months, almost a year, for his lawyers to get clearance to be able to review the evidence.
So you can see how this, right, damages sort of the ability to get a speedy trial if you can't, if your lawyers are not given any type of speedy access to the evidence.
Mm-hmm.
And now, so your group, Educators for Civil Liberties, at educatorsforcivilliberties.org, you're working with the Center for Constitutional Rights, and I saw this email that I got on here.
You must have a hundred very important groups whose leadership have signed on to your letter to Eric Holder to try to make him stop this madness.
And I guess when we get back, we'll have more time to describe the madness that is the special administrative measures being used against this captive and his sham of a trial that took place last spring, et cetera.
But just please tell us a little bit about the campaign to actually do something about this.
It is, correct, a letter to Eric Holder?
Absolutely.
The other thing, not only has he been held in complete solitary confinement since he was brought to the United States in 2007, right?
So there's three and a half years of solitary confinement.
But three years ago, he was placed under what are called special administrative measures, which basically cut off nearly all communication between the person and the outside world.
That means no letters, no calls, except limited contact with his parents and then contact with his lawyers.
His cell is monitored inside and out, which means that he can't even try to talk to the wall, talk to the walls, to other people.
So basically, it's like a supermax prison where they sent Robert Hansen and the Unabomber.
But for someone who's a suspect, who's accused awaiting trial for three years.
And we'll talk more about that when we get back from this break with Jean Theoharis from Educators for Civil Liberties, anti-war radio.
All right, everybody, welcome to the show.
It's anti-war radio because war is the health of the state.
Except when you lose, then it's the health of the other guy's state.
And you know, the war comes home.
That's part of it.
American citizens treated the same way.
We allow the military, mostly assent to the military, treating foreigners.
And in this case, it's a guy named Hashmi, who's an American citizen.
And who, as my guest, Jean Theoharis from Educators for Civil Liberties was describing, was held like Ted Kaczynski, supermax style, while awaiting trial on charges that amount to a hill of beans based on the testimony of the guy who, if anybody was guilty of violating the law, it was him, not the guy who was awaiting his bogus trial in a supermax facility.
And this is pretty Kafkaesque.
And that's supposed to be something very Russian in the world, not something American.
Wasn't that your previous understanding, Jean?
I mean, I think many of us have also, I think, come to criticize these kinds of tactics, but seeing them sort of embodied more in these overseas places, right?
So Guantanamo, Bagram.
And we've kind of maintained this, I think, false notion that this was only possible because it was outside the reach of American law, right?
And so they had to set up a prison in Guantanamo Bay, Cuba, or they had to do these terrible things in these prisons in Afghanistan because the federal system didn't reach there, right?
And I think what the treatment of Hashmi shows us is that, in fact, the federal system was polluted by the same kind of rights violations as places like Guantanamo or Bagram, which we, I think, have had more of a public conversation about in the past few years.
And now describe again the conditions upon which this suspect was being held awaiting his trial.
I mean, basically, he was in his cell 23 out of 24 hours a day.
He was entitled to one hour of recreation outside of his cell, which he sometimes was given, but he was not allowed fresh air.
So he basically exercised alone in another kind of solitary cage.
He showered and went to the bathroom in view of the camera.
He was not allowed to talk through the walls.
He was not allowed to have phone calls or letters.
He was allowed very limited contact with his parents, and sometimes that would be cancelled.
So again, three years of basically this kind of isolation, this kind of sensory deprivation, this kind of degrading of one's privacy and humanity.
And this was three years pre-trial, the day before his trial, after basically the judge allowed basically allowed the government's motion to have an anonymous jury with extra security, which means that this jury would have been brought in like an out through kind of, you know, at secret locations and try to convince them that they're in danger all the time.
It's such a high profile terrorist case.
And so basically after the judge assented to that, he again, one day before trial, he took a government sort of plea bargain of one count of conspiracy for material support.
He was sentenced to 15 years.
He was then transferred this summer to Florence, the federal prison in Florence, which, as you probably know, is sort of the most draconian prison in the federal system.
And he remains in solitary confinement and under these SAMs.
And that is the email that you got.
And what Center for Constitutional Rights is sort of had done was to send a letter to Eric Holder, the special administrative measures on him have to be renewed each year.
And they came due a couple of days ago on October 29th.
And so CCR and a number of other groups, including Educators for Civil Liberties, had written to Attorney General Holder to ask him not to renew these measures.
This kind of prolonged solitary confinement and isolation is considered, you know, by doctors, by medical experts and by the world community as torture.
I mean, and so well, and, you know, Jean, it seems pretty apparent to that to do this to someone.
I mean, if we can conclude there's a motive beyond just sheer malice behind it, it's to drive the man crazy so that he can't participate in his own defense.
When they give him 15 years as a plea bargain, the day before his trial, he finally says, sure, sure, whatever.
Just don't don't give me my day in court to prove my innocence beyond a shadow of a doubt, which would be a piece of cake in this case.
Right.
I mean, I think there's I mean, and again, other people, lawyers, scholars, you know, human rights experts have raised this question, right, which is how these conditions make it impossible to participate in your own defense.
I think we haven't had enough of a public conversation around the ways that torture is used to produce convictions.
Right.
We've talked about the you know, how torture is used to gather intelligence and in, you know, the inefficacy of torture there.
But I think, unfortunately, torture is effective in getting convictions.
It is.
Well, I even learned in community college and psych class that, you know, a couple of big fat cops with bad breath in a small closet with a hot light can just that level of torture is enough to make people confess to any sort of heinous crime that has nothing to do with anything they did because their time preference gets so short where they will say anything if on the promise that they'll be allowed out of this room right now and never mind the trial coming up.
I'll work that out later.
And so they go ahead and confess to, yeah, I killed all those kids or whatever.
But I mean, I think, right, people I mean, again, we've seen this and we've seen this in, you know, I mean, people who study this, right, the pressure to plea, the pressure for confession, right, when kind of inhumane tactics are used.
Right.
And the more inhumane, the more pressure there is.
And I think this is I think we need to ask the question as to whether this is the country we want and believe in.
Right, right.
It's a country that tortures, you know, and I think morally, ethically, I think even if you're just concerned about national security, I think this raises huge questions in terms of how, you know, what the United States has become in the world.
And as you may know, this summer, the European Court of Human Rights blocked the extradition of four people the United States was wanting for various under various terrorism crimes because of the conditions of confinement that are now used against people suspected of terrorism in the United States.
So basically, the European Court of Human Rights, citing Hashemi's treatment, among others, right, is now saying, we're not sure we're even citing this case.
They did.
Yes, because, you know, this basically saying this kind of prolonged solitary confinement and special administrative measures, you know, violate world standards.
Right.
So now the United States is set by the United States.
Right, right.
I mean, so I think this is what we've become.
And I think we need to change course now on the specific issue of these special administrative measures.
Are these this has always been there, right?
Some kind of way to tweak the prison rules, the warden's rules, quote unquote, so that rights are violated in ways that the executive and the judiciary can't get away with themselves necessarily.
But or are these particular kinds of restrictions a brand new thing since the terror war?
Or do you know?
Yeah, I mean, they come in in the mid 90s.
They are originally the idea behind SAM, their special administrative measures, is that they are supposed to be for prisoners who are so dangerous that their very word, right, can can inspire violence outside of the prison.
So they'll ever catch on.
And also here, let me tell you.
So, right.
So one of the first times they were used was against the head of the Latin King who'd ordered a hit from inside prison.
Right.
So these are, again, like how they were introduced with these are, you know, unusual and extreme measures to be used on people with a demonstrated reach outside of prison.
Now, what you see after September 11th is that notion of a demonstrated reach goes out the window.
The notion of even I mean, again, in Hashmi's case, he wasn't even being charged with committing an actual act of violence.
And yet, again, the SAMs are supposed to be about people whose reach is so powerful.
They never publicly claimed he had any reach.
They just cited a proclivity for violence again.
So the standard, you know, has just been considerably relaxed.
Well, and, you know, particularly I can't get over the irony of he's accused of knowing a bad guy, the bad guy being the state's witness saying, yeah, this guy is guilty of knowing me.
And that's all they have on him.
But I mean, basically, that man is now a millionaire.
Oh, no, no.
But he's in witness protection and is Hashmi's trial is going to be his last.
And so he's now free.
Right.
All right.
Well, I'm sorry.
We're all out of time.
But thank you very much for yours.
Educators for civil liberties dot org.
It's Jean Theo Harris.
Thank you for this work and your time on the show.
I really appreciate it.
Thank you.
