08/20/09 – Petra Bartosiewcz – The Scott Horton Show

For Antiwar.com, I'm Scott Horton.
This is Antiwar Radio.
And our next guest on the show today is Petra Bartsevich.
She wrote this article called A Thousand Little Gitmos for Mother Jones.
It'll knock your socks off.
Welcome to the show.
Thanks.
Did I say it right?
Close.
Close.
Bartsevich?
That's good enough.
Oh, man.
All right.
I'm sorry.
I was trying.
Okay, wow.
So, I guess, tell us, who is Syed Mahmood Hashimi?
He's also known as Fahad.
And he is a Pakistani-born guy who came to the U.S. when he was three years old and grew up in Flushing, Queens.
I think he's about 29 years old now.
And he led a fairly uneventful life, I assume, until around 2004, when he was in London in grad school.
And he basically hosted a friend of his at his apartment.
And that guy ended up getting in trouble with the law.
He was accused of taking some luggage to an al-Qaeda training camp.
And Syed's role in this is that he is alleged to have known that this luggage that went to the al-Qaeda training camp was going there.
And so he's now facing trial on material support to terrorism charges in Manhattan in federal court.
So this other guy who's in trouble now, or who's already in trouble, stayed at his house and had some luggage.
And the accusation is that he knew what was in the luggage?
Yes.
And in that luggage was destined for terrorists or something?
Something like that.
And now the star witness against him is the guy who supposedly was the one smuggling the luggage, right?
That's exactly right.
So that makes perfect sense, I guess.
The primary guilty party is the one who turned state's witness against people who were at best his sort of pseudo-accomplices, basically.
Yeah, and he's testified in a number of cases now.
There's a case in the United Kingdom that he's testified in, and a case, I believe, in Canada that he's testified in.
So he is working off a potentially lengthy sentence by testifying.
And there have been rumors that he might serve no time at all, but I have no idea what's going to eventually happen to him.
Okay.
Well, assuming that this guy actually was in on a plot to send a bunch of waterproof socks and other nice things to Ayman al-Zawahiri, why shouldn't he be in the prison that he's in right now?
What's the big deal about this guy?
Let's presume he's guilty.
We're Americans here, right?
Well, yes, we are.
But I don't think he's actually even accused of being in on a plot.
I think he's simply accused of knowing that this stuff was destined for a training camp.
And as far as where he's incarcerated right now, he still has not had a trial.
He was arrested over two years ago and extradited from the United Kingdom, and he's spent over a year now in solitary confinement in a jail here in Lower Manhattan, where he's in 24-hour-a-day, 7-day-a-week solitary confinement.
He is not allowed to talk on the phone with people.
He's not allowed to talk to the media.
He's not allowed to receive a lot of different kinds of mail.
And he has not had a trial yet.
So I think that that's a problem.
Now, I'm trying to remember.
There's some acronym I learned not long ago, some kind of special communications lockdown prisons or something.
Someone else called them little gitmos in America.
And in the name of preventing terrorists from passing messages to each other, they have them in extra-isolation-type circumstances.
Is that the same kind of jail you're talking about here?
Not exactly.
What you're talking about is called the Communications Management Unit, which is in Terre Haute, Indiana.
And that's where a number of individuals who have been convicted of material support to terrorism charges are serving out their sentences.
And they do have a lot of restrictions on communicating with the outside world.
They, for instance, cannot talk to the media.
I've actually tried to go in and interview some of them, and they won't let the media in.
And it's also interesting to note that the really violent felons or the individuals who have been convicted of the more serious terrorism-related crimes since 9-11 and before are actually serving their time in a different prison in Florence, Colorado.
But this guy, Syed Fahad Hashmi, is under what are known as special administrative measures.
Those are just a series of detention measures that are, I think only like 50 people maybe or so throughout the country are under these restrictions.
And they're usually reserved for violent people who have threatened violence or have acted violently in custody and pose a danger to the guards or to other inmates.
Fahad is not in that category.
He's not accused of a violent crime, nor has he had any sort of disciplinary record that would reflect any kind of violent behavior.
Well, now I'm trying to remember, those special administrative measures, that's the thing that Attorney Lynn Stewart was convicted of violating, right, in her meetings with the blind sheik Omar Abdel-Rahman?
Yes, that's correct.
Yeah, that was the thing that kind of violates attorney-client privilege, but the lawyers are forced to sign it or else they just don't even get access to their clients at all, right?
Yes, and that happened in this case, I believe.
The lawyers initially resisted signing off, and then ultimately they really had no choice.
And, you know, every one of these sort of battles just delays the trial, which keeps this defendant in solitary confinement that much longer.
And they've tried to fight these measures and have them lifted, but it has been unsuccessful.
And they're actually so serious that the attorney general himself has to sign off on them and renew them.
But, you know, again, the issue is getting a fair trial.
There are people who are guilty of crimes and they should be punished for those crimes, but this person has not yet even had a trial.
Yeah, you know, is there not a law about that?
Solitary confinement for people who have yet to even be tried?
I mean, I guess if they're in the general population in the county lockup and they stab seven guys in the neck or something, you put them in there for the weekend, but you don't just keep people in solitary confinement when they haven't even been convicted of anything.
Can they do that now?
I guess so.
Yeah, and this is not a new measure.
It existed before 9-11.
The measures that you see in federal court, at least, are not really new.
They're just being used more frequently and they've sort of been retrofitted almost since 9-11 and given kind of like a steroid shot in the arm.
So you see certain things like SAMs happening more often to these types of defendants.
There was another defendant, Uzair Peracha, who was put under the SAMs, that's the acronym, before his trial.
And to give you an idea of how serious a threat the government thought he was, they offered him a five-year deal to plead guilty to the charges he was facing, and he actually did not decline that and then lost at trial.
But, you know, it's not like they were putting these measures on someone who was facing life in prison or something like that.
Yeah, well, and then, of course, the whole secret evidence thing, I mean, that's in direct violation of the language of the Fifth Amendment, right?
Well, the secrecy measures that you see in terrorism-related cases since September 11th are really kind of hitting the confrontation clause.
And what they are designed to do is to limit the amount of information that defendants can get, that their lawyers can get, and ultimately that really hampers the ability to get a fair trial.
And, again, these are not new measures.
Besides these special administrative measures, which keep the defendants in pretrial lockup, the other two major tools that are used is the Classified Information Procedures Act, which is known as CIPA, and that is used to kind of keep a lot of evidence secret.
And it was used before September 11th, and it's been used in other national security types of cases.
But what has happened a lot lately is that the defense attorneys don't always get access to this information.
Prosecutors can bring this classified evidence to the judge and try to determine what's going to be used and what's not going to be used in the court without the defense attorney's presence in some cases.
Some of the information has been deemed so secret that even the prosecutors trying the case are not given access to it, which is a really interesting development because, say, the CIA or the NSA has some kind of information.
They take it directly to the judge.
The judge looks at it, but the prosecutor hasn't actually even seen it, even though they're the ones trying the case.
And then the third thing that is done is that cases are put under what are known as protective orders, where certain evidence and discovery material is just basically kept from the public eye.
And you'd think it's very secret stuff, but oftentimes it can be anything as benign as someone's high school records or college papers, in this case, as I had Fahad Hashmi.
This is one of the problems, really, of closing Gitmo and bringing it home without kind of polluting all of the law that we used to have with all this new made-up stuff.
So eventually all these rules and regulations apply to your trial and mine when it's our turn.
Well, this is even before any of these people in Guantanamo are brought into the U.S., and I would be surprised if they're tried in federal court.
Federal courts are looked at as a model to follow, and I just think that in these terrorism-related cases, which have just been in the federal courts, forget Guantanamo or anything like that, there are problems in the lower-level cases that are being tried here in the U.S.
In fact, I was just kind of marveling at all the people at Gitmo who've been released when they got rid of habeas corpus, I think it's about 30 out of 33 now or something like that, have been released for the government having absolutely nothing on them whatsoever.
And I was thinking, well, that's so surprising to me, because aren't these the same federal judges who are willing to let innocent people go to prison on terrorism and other kinds of cases all the time?
When have they ever cared about that?
Is it just that they're jealous of the military's power being asserted here?
They want it for themselves only?
Well, I don't know.
I think that the Guantanamo cases are still a very separate entity, and the rulings that are being handed down in those cases are different than these other federal cases, which are very contained in the federal system.
There's a lot more going on.
I think there's a lot more moving parts in the Guantanamo cases.
But where they might converge is in this proposal to have a new national security court, which is still, as far as I know, on the table.
That's where you would see all of these secrecy measures really institutionalized, and those kinds of courts would have potentially U.S. citizens tried in them.
And the kinds of measures that you'd see there is lowered evidentiary standards, secret evidence.
And there is precedent for national security courts, but it's usually in other countries like Pakistan where basically you can admit coerced confessions and things like that.
So it's a very problematic model.
Oh, well, it's a tradeoff for all the remote-controlled drone planes we've been sending, and we get to import their legal system here.
Right.
That sounds great.
All right, well, so now, again, everyone, I'm talking with Petra Bartsevich, as best as I can pronounce it.
She's got a great article at Mother Jones called A Thousand Little Gitmos, and I know you're also working on a book called The Best Terrorists We Could Find.
And I was wondering if maybe we could go through some of these, you know, some examples of some of these domestic terrorism cases that, you know, people who weren't necessarily turned over to Guantanamo Bay or to Bagram Prison or something like that, but who have gotten federal trials on terrorism cases.
By my best count, the only legitimate ones were Richard Reid, and I think that was in England, right, and Moussaoui.
But everybody since then has basically been an innocent man entrapped by some informant or something, right?
Well, I don't think that everybody who has been tried is exactly innocent.
I think they are guilty of certain crimes.
But I think that it's really hard to call any of these people actual terrorists.
And, in fact, they haven't been charged with acts of terrorism.
The statute under which they are charged almost always is material support for terrorism, which means that they somehow, in some way, helped forward some sort of a terrorist plot.
And that can mean anything from giving money to being part of a sting operation.
And there have been a number of these sort of sting operations.
There was a recent one in upstate New York in Newburgh, and usually they revolve around a government informant who kind of infiltrates some mosque or some group of people, and there is some sort of a plot that is developed where the informant is usually heavily involved in that.
And then when the charges are brought, it's inevitably that the defendants were helping to sell a missile or launder money or something along those lines.
But they are really a stretch, I think, a lot of these cases.
Yeah, I guess you say they're only charged with material support.
I guess that means they're only charged with terrorism on TV.
When they announce, oh my God, we busted an Al-Qaeda sleeper cell in your neighborhood.
They were going to kill you.
We saved the day.
Then it's when they end up in court, they end up saying, well, you know, he knew a guy who knew a guy who sent some money to Chechnya once, like they did Padilla.
Or they knew an FBI informant who offered to pay them a lot of money, and they thought they were playing him, but really he was playing them, like in the Miami case.
It's always something bogus when it comes down to it.
Well, definitely the FBI and the Justice Department like to hold press conferences when they make a big arrest.
There's no question about that.
And then when you see what really the case is about, there's less to it, to say the least, in a lot of these cases.
And I do actually think that there have been cases where people who are not guilty of anything except being unlucky and in the wrong place at the wrong time have gotten convicted of crimes.
And it all boils down to this concept of prosecutorial discretion, like you have only so many law enforcement officers out there, and you have only so many prosecutors that can handle so many cases, and where do you put your resources?
And so looking at what actually is coming up and what kind of cases they're bringing forward, it's either that there are no actual terrorists out there who are plotting anything, or we are definitely not looking in the right places.
Well, yeah, indeed, if there are guys who are plotting real terrorist attacks to kill mass casualties of American civilians, the FBI aren't going to be the ones to protect us.
When they're sitting around coming up with all these bogus cases all the time is how they spend their energies.
It certainly isn't going, how are we supposed to be kept safe when they're keeping us safe from the Miami 7 or the poor kid in Lodi, California, who was absolutely just entrapped into saying something stupid into the telephone once or something.
That was all they had on him.
Yeah, but you also have to, I think, trying to understand it from their perspective, they really are charged with this mandate of preventing another attack, and that's where I think the thinking has to happen is the premise of what this mandate, how solid that premise really is.
It's impossible, probably, to prevent every single attack that might happen, and that's an impossible mandate to follow, but that's what they've been charged with.
Actually, the New York Times had an article, I think the day before yesterday, where they described how I think about 40% of the FBI's resources are now devoted to counterterrorism, and they get all of these leads that come in, and they have to follow all of these leads, and most of them turn out to be dead ends, and this takes up an enormous amount of their time and an enormous amount of their resources.
So I can see that they also have a real challenge to, you know, if an attack happens, then, you know, you have to cover your butt.
You can't say that you didn't follow up on a tip.
But on the other hand, some of these cases are developed way past any logical point, and especially the sting operations, and I think maybe part of the problem there is that it's a kind of, once you get this thing going, it's hard to take it off the rails, and it's maybe more difficult for these agents to say, okay, you know, wait a second.
This guy actually isn't up to anything.
Let's just, you know, pack it in.
They've invested all these resources, and they want to see it through.
In fact, I actually asked an FBI agent at one point involved in one of these cases how many sting operations he'd been involved in during his career, not just terrorism-related, but other kinds of crimes as well, and he said that it had been many.
And I said, and how many of those led to charges being brought against the individual who was the target?
And he said, all of them.
So a sting operation, which is, you know, maybe supposed to be a neutral kind of thing to see if someone will do something, in these cases you really do, they push it until something happens.
Well, and of course, when the next attack does come, they will say, well, the FBI didn't do enough, not the FBI did way too much persecuting innocent people.
Exactly, and it'll probably, I mean, if there is another attack, it'll just push that national security fever that much higher, and so that would usher in these harsher measures.
And in my mind, from the reporting I've done over the last couple of years, I just see that secrecy measures are on the rise, things are less transparent, methods are less transparent, the information that undergirds these cases is harder to figure out what really brought these cases in the first place.
And remember, a sting operation is something where the crime hasn't actually happened yet, and they're just trying to figure out if the person would do something if, you know, given an opportunity.
And so that's very problematic in terms of how you pick who you think that person would be.
And I do worry that if there's another attack, it's only going to get worse, but you're absolutely right.
If there is another attack, the FBI is going to be charged with not having done enough.
And it's kind of a catch-22, but again, I do think it's a question of where you put your resources.
Right, well, and we all know what the FBI's priorities are.
Number one, protecting themselves, and number a million, everybody else.
That's the way it's always been with them.
Well, they are civil servants after all, so, you know.
Is that what they call them still?
That's funny.
Civil servants, I like that.
Well, so, let's see, I know pretty well the story of Lodi and the Miami 7 and the Detroit 5 and the Virginia paintball guys, the Laka 106.
Oh, I know, I wanted to ask you about, well, let me just say now, I want to see if you can tell us a little bit about the New Jersey pizza plot and the New York tunnel plot.
But also I wanted to ask you, because I think you do mention this in your article, the legality surrounding the trial of Abu Ali, who was convicted of a plot to kill George Bush.
And my best understanding of this, and please fill me in and correct me where I'm wrong, is that he was tortured, or at least beaten in Saudi Arabia into confessing to this plot.
And that coerced testimony was allowed against him at trial, but the evidence that it was beaten out of him was not allowed at trial.
And so the Virginia jury went ahead and gave him a life sentence or something, right?
Well, he was picked up in Saudi Arabia, and the Saudi intelligence did get a confession out of him.
I assume they used their normal methods, which would not be very friendly.
And he was put on trial in the U.S., and one of the problems with that trial, as Amnesty International said, was unfairly, that the trial was unfair, was that they used what is called a silent witness rule, and they presented evidence that the jurors saw, but that the defense attorneys hadn't really had a chance to vet.
And again, it goes to this issue of secrecy.
And what I found in some of these other cases is that there was a case in Albany where secret evidence also played a big role, and a piece of that evidence actually came out in the courtroom.
It was before the trial actually happened, and it turned out that the piece of evidence that was at issue was a mistranslation of the word mister for what was interpreted initially as the word commander.
And this is part of what led the FBI.
This is one of the reasons the FBI ultimately mounted this huge sting operation against the defendant.
And when it came out that this was actually a mistranslation, this time the sting was over, the guy was indicted, he was facing charges, and the prosecutors, the Justice Department, pretty much tried to lock down a lot of the rest of the information in that trial.
So sometimes the information might be sensitive, and sometimes I think it's just embarrassing to the government, and they don't want it out there.
But if that had been translated properly, maybe they would have gone after this guy anyway, but maybe not.
So the problem with a lot of these cases, the terrorism-related cases, is that you rely now increasingly on intelligence that might be gathered not by the FBI, but say by foreign intelligence agencies or the CIA.
And when it comes into court, it's very hard to determine the veracity of this information and what the chain of custody was of the evidence and who was handling it and what it all means and what context it came out of if somebody was giving this evidence under interrogation or something like that and they were being beaten up.
But once it's in the federal court system, it takes on this gravity of any kind of evidence, and it's very hard to refute it because it's all shrouded in secrecy.
Can you tell us a bit about, say for example, the New Jersey pizza plot or the New York tunnel plot?
I don't know too much about those, but they sound like a bunch of BS to me.
Well, I think you're referring to the Fort Dix case.
Right.
Both of these cases involve informants, and again the informants play a heavy role in a lot of these cases.
But maybe I can tell you the most recent case along these same lines is that case I mentioned in Newburgh, where the informant in that case was actually not, he had done another terrorism case, this case in Albany, where he'd also been an informant that kind of really drove the case.
And at trial in Albany, this informant was proven to have lied at times to his FBI handlers, and once the trial was over, he was, I guess, sent out to find more information, and he went to these mosques around Newburgh looking for people who he could engage in some sort of a plot.
And I can't remember the number of defendants in this case, but I think there's four of them, and they range from a guy who's mentally ill to a guy who's like a lifelong drug user, really not people who you would think would be agitating for some sort of a plot, people who are politically motivated in some way.
And there were a bunch of misfits and criminals, and this informant offered them money and he would come around in a fancy car and just really try to convince them that he could help them out in certain ways.
And ultimately he was even the guy who drove the getaway car when they went to plant, they were actually accused of planting some bombs in front of a synagogue in a Jewish community center.
So, you know, they're obviously not good guys, and they are guilty of agreeing to do what they agreed to do.
But the question really in a lot of these cases, as in the Fort Dix case, as in the subway plot, is would these people have ever done anything if they had not been approached by someone representing U.S. law enforcement?
And I think in a lot of cases the answer is that no, they wouldn't have done anything.
Yeah, well, it's just like the title of your book.
These are the best terrorists we could find.
I guess my suggested subline would be there's just not enough al-Qaeda in the world, you know?
We have, count them, zero friends of Ayman al-Zawahiri who have been busted since Mosawi.
Well, I think that they have gotten people in the al-Qaeda network, and I'm not as familiar with the cases.
Well, not in this country that I've heard of, anyway.
Well, no, not in this country, and maybe that's because they're just not here.
Right, yeah, exactly.
That's the truth you're never supposed to come around to.
Like, huh, well, if they're all bogus cases, maybe that's because there are no actual al-Qaeda in the country to bust.
And, in fact, the one that bothers me the most, and I don't even know if the version of this narrative that I know is wholly accurate or what, but apparently there was a kid who was deliberately picked out by the informant because he was the slowest kid who hung out at the Islamic bookstore in Brooklyn somewhere or something and was convinced into agreeing, I guess, into a microphone, that he was going to place a bomb at a subway station in New York.
And as far as I know, he never even did anything.
And it was basically just bullying these people, just picking the weakest person to entrap.
Well, I think that is the subway plot you're referring to, and that these informants have a job to do, and oftentimes they're facing their own prison terms, so they have no choice in their minds, probably, but to find the most expedient way to work that potential sentence off.
And so that's who they pick.
It's cryin' shame.
All right.
Well, I sure appreciate your coverage of this topic, and I can't wait until the book comes out.
Thank you so much.
All right, everybody.
That's Petra Bartsevich.
The article is at Mother Jones' A Thousand Little Gitmos, and keep your eyeballs on Amazon.com for her upcoming book, The Best Terrorists We Could Find.