A Conversation with Dr. Jeanne Theoharis

For the past almost three years, an American citizen, Syed Fahad Hashmi, has been held in isolation in a federal detention center in New York City.
He is suspected of conspiring to provide “material support” to Al Qaeda. The government’s evidence is a suitcase full of raingear left by a visitor to his London apartment; the government charges that the raingear was for delivery to al Qaeda operatives, and that Hashmi let his visitor use his cellphone. Hashmi is under 24-hour video and audio surveillance, even when he uses the toilet. He eats all his meals in his small cell. He is not allowed to communicate with other prisoners. He is a Muslim but is not allowed to participate in group prayer .

The month-old newspapers he receives have whole sections cut out of them by the government. Contact with the media is forbidden. For one hour every other week, one member of his family can “visit” through a heavy screen. No touching or hugging is allowed or possible. Sometimes the government takes away his family visits as punishment; in 2008, he lost his visits for three months and has not had family visits since December. Sometimes the government does not allow his family to see him when they arrive at the prison because the FBI translator is not there.

Hashmi’s trial is finally scheduled for April 28, and the government’s star witness against him is the man who left the raingear in Hashmi’s London apartment, and who has already been sentenced to a long prison term but is using his testimony to work off his sentence.

Here, IPS correspondent William Fisher discusses the case with Dr. Jeanne Theoharis, the Brooklyn College professor who was Hashmi’s teacher in 2002, and is one of those most outraged by Hashmi’s treatment.

IPS: How do you remember Hashmi as one of your students?

JT: He was a student of mine in 2002. He took the senior capstone seminar in political science with me--that year, the course I taught was on post-civil rights racial politics, which focused on civil rights from the 1960s to the present. He loved to talk and debate other students—and seemed to have a rather optimistic view of the power of debate to change people’s minds. It is a small course where students are required to do a research paper. He did his on the treatment of Muslim groups in the United States post-9/11 and -- ironically or perhaps not -- described the violations of civil liberties that Muslim groups of various political positions were facing. Now that paper he did with me is being lived out in lower Manhattan -- and it is his rights that have been violated.

IPS: Did you encourage him to seek a Masters degree ?

JT: He came to see me about his desire to go to graduate school, which made sense, given his scholarly interests and we talked through his plans. Also, as part of a class assignment for another course where students had to interview someone who had the job that they wanted, he came and talked with me about being a professor.

I wrote him a letter of recommendation for a number of graduate schools and, like many students, sent him on his way. Next I heard about him, he'd been arrested and we were being instructed by Brooklyn College not to have any comment to the media.

IPS: The next time you saw him he was in custody and there was a court hearing. How did he seem to you?

JT: Over the course of the past two years seeing him at these court hearings, his mental health appears to have declined. He now appears considerably less focused and more jittery. He used to pay attention to everything happening in court, constantly talking to his lawyer and for the brief moments entering and leaving court, making eye contact and smiling at people in the audience. He now seems much more withdrawn, sometimes just keeping his head down the whole time. This certainly corresponds to the research on the effects of prolonged solitary confinement, which documents this kind of degradation of people's mental health.

IPS: Did his lawyer put up a robust defense against the imposition of the SAMs?

JT: Yes, his defense has challenged the SAMs on multiple occasions --including introducing medical and scholarly evidence of the damage that prolonged solitary confinement has on a person. The judge was unconcerned and ruled against every defense motion seeking to address the SAMs. She has refused even to make modest changes. She has determined the SAMs to be "administrative and not punitive" and thus constitutional. Judges -- and particularly this judge, Loretta Preska -- seem to be allowing the government wide latitude in imposing these inhumane measures.

These SAMs are legalized torture. The levels of isolation and sensory deprivation are dehumanizing. They go against international standards and have been shown in medical and scholarly research to have a severe impact on a person's mental health and stability. And they severely impact the ability of a person to participate effectively in his or her own defense.

IPS: Do you think Hashmi will get a fair trial?

JT: No, his right to a fair trial has already been severely compromised by the SAMs, and also by the use of "classified" evidence legalized through the Classified Information Procedures Act. As a US citizen, Hashmi has not been allowed to review all the evidence against him. We are hoping to salvage justice in his case. But three years of solitary confinement and severe isolation have made a fair trial impossible.

We have begun to have a public conversation in this country about torture but not addressed this crucial aspect of it happening right here in the federal system, and, in Hashmi's case, right here in New York City. While there has been public attention to the use of torture for intelligence gathering, we have missed the use of torture to gain convictions -- as a way for the government’s lawyers to demonstrate the success of U.S. law enforcement and federal prosecution in the War on Terror.

A Talk With Mary Giovagnoli

The Immigration and Customs Enforcement agency (ICE), part of the Department of Homeland Security (DHS, ) has come under increasing criticism because of its poor treatment of would-be immigrants held in detention – including a number of unreported deaths – lack of medical facilities, administrative bungling resulting in loss of records, and absence of due process for detainees at ICE detention centers.

A recent report by the DHS Inspector General excoriated ICE for substandard management of the 287(g) program, in which local police and sheriffs are given authority to enforce immigration laws. The program has been attacked for encouraging racial and ethnic profiling, using untrained police officers to enforce the highly complex immigration laws, and diverting local law enforcement authorities from the work they traditionally perform.

Mary Giovagnoli, director of the Immigration Policy Center, the research and policy arm of the American Immigration Council, believes that ICE could substantially improve its performance by appointing an Ombudsman “to serve as an internal conscience, taking in reports on individual cases, making sure that policy is followed and serving as an internal watchdog.”

Giovagnoli has a long history of service with government immigration agencies. She served with ICE’s predecessor, the Immigration and Naturalization Service (INS) for almost seven years, and then with U.S. Citizenship and Immigration Services (USCIS) after INS was dissolved in 2003 and its responsibilities transferred to DHS.

IPS correspondent William Fisher interviewed Ms. Giovagnoli.

Q. Isn’t the DHS Inspector General and the Office for Civil Rights and Civil Liberties designed to fulfill the Ombudsman function by investigating allegations of civil rights violations across the Department and attempting to educate Department personnel about proper procedures?

A. These offices are crucial to keeping all of DHS honest, but the problems in ICE require more specialized and ongoing attention. The Office for Civil Rights and Civil Liberties is small and tasked with an incredible number of responsibilities for protecting civil rights across all of DHS. The Office of Inspector General also has competing priorities and therefore must limit its investigations to the most egregious problems throughout DHS. ICE also has an Office of Professional Responsibility that looks at particular allegations against individual officers. But often, these kinds of offices can't focus on the individual run of the mill case where policies and procedures cause the problem rather than any particular wrongdoing on the part of an officer. Because ICE is a law enforcement agency, but one that enforces a wide range of civil laws, its relationship to the community is, I think, unique and complex.”

Q. What specifically would the Ombudsman do?

A. An ombudsman would serve as an internal conscience, taking in reports on individual cases, investigating them, making sure that policy is followed and serving as an internal watchdog. When Congress established DHS, there was considerable concern that the former INS wasn't responsive to the numerous complaints it received. Originally, the ombudsman’s office was intended to cover all immigration matters, but the final legislation only included authorization for oversight of USCIS.

The ombudsman monitors USCIS performance and advocates for change with a direct reporting requirement to Congress regarding different legislative proposals and recommendations. Although this model is written in the law, there is no reason to believe that the Secretary couldn't establish a similar mechanism for monitoring ICE, at least in terms of investigating complaints and making recommendations.

Q. What is required for the Ombudsman idea to proceed?

A. There are several pieces of legislation proposing an ombudsman within the detention context, but we don’t need to wait for legislation. Better oversight should start happening right now. DHS should gather input from affected communities to create a system that will make ICE more responsive.

There are particular concerns in implementing the Ombudsman idea for ICE. You need a structure that is in tune with how the agency works. You have to have a chain of command structure that is respected by the officers -- an ombudsman needs to have sufficient authority to report to someone outside ICE but at the same time be seen as working within and through ICE to solve problems. So access, authority, and ability to make changes is critical.

Then, an ombudsman needs representatives in the field -- ideally, you would have someone responsible for individual districts that would take complaints, gather information, and investigate concerns.

Finally an ombudsman needs a support system from within the community. Ideally, the ombudsman might be the central figure in a range of community oversight boards with the ability to advise and make recommendations to individual offices and to the national office about improved performance and working with the community.”

Q. How would an Ombudsman work with the larger community?

A. We have to change the model of immigration enforcement to reflect community needs and interests. There has been a lot of great thinking along the border about what that might look like in border communities, but we need to expand that thinking to all communities where ICE operates. An ombudsman who spearheaded a group of local community advisory boards would be in a position to speak for all the people who right now find their complaints unanswered whose issues are probably not big enough to get to the level of an IG report.

In Search of Stevens

Analysis by William Fisher

With the resignation of Supreme Court Justice John Paul Stevens, U.S. President Barack Obama faces an opportunity that may become a migraine – or vice versa.

All presidents welcomes vacancies on the high court; each one gives them another chance to leave their mark on the American political landscape. The resignation this Summer of Justice Stevens, who is approaching 90 years of age, after 34 years on the court, is no different.

With partisan acrimony at the most intense pitch in recent memory, President Obama faces a dilemma. Does he choose someone uncontroversial – more conservative -- who is likely to be confirmed by the Senate with relatively little opposition, or does he nominate someone in the Stevens mold?

Stevens, though a Republican selected by a Republican president, Gerald R. Ford, has since his appointment in 1975, gradually become the voice of the “progressive wing” of the court as the full court has moved relentlessly toward the right.

Today, there are four justices who represent a reliably predictable conservative vote – Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Justice Anthony Kennedy, considered the “swing vote,” often joins the conservatives to give them a majority of five.

Many of Stevens’ decisions have angered those on the political right, including decisions that limit executive branch power and expand legal rights for Guantanamo detainees.

Some of his dissents may in time also prove to be as important as the Court’s majority opinions; for example, his recent impassioned opposition to the majority in the Citizens United v. Federal Election Commission case which ruled that corporations have the same First Amendment rights as humans and therefore can spend unlimited amounts of money in political campaigns for or against candidates.

Some observers of the Washington scene believe Obama will opt for a “safer” nominee to avoid alienating Senate Republicans, whose support he is still seeking for passage of his legislative agenda. Others contend that Obama, now emboldened politically by passage of his historic health care legislation and a new nuclear weapons accord with the Russians, will challenge conservative Republicans to a knock-down drag-out fight in the Senate.

Conventional wisdom suggests that those reportedly on the shortlist of nominees include several who were considered before President Obama named his first Supreme Court Justice, Judge Sonia Sotomayor. They include the current Solicitor General, Elena Kagan, formerly dean of the Harvard law school; federal judges Diane Wood and Merrick Garland; and Homeland Security Secretary Janet Napolitano.

Judge Wood is arguably the most liberal of these possible nominees. Some disqualify Garland because they believe Obama wants to choose another woman – there are currently two on the court. Kagan is generally well regarded by conservatives and has many supporters on the right, although she favored a ban on military recruitment on the Harvard campus. As Solicitor General, she plays a major role in choosing court cases the government will bring or defend. In a large number of these, her choices have channeled those of the George W. Bush Administration.

Napolitano, former governor of a border state, Arizona, has been tough on illegal immigration, a position that has strengthened her hand among conservatives. The two appeals court judges both have long judicial paper trails, generally thought to be an impediment to speedy confirmation. Judge Wood in particular has written a number of opinions in abortion cases that conservatives would find objectionable.

While other names – including Secretary of State Hillary Clinton -- have also been mentioned, the truth is that only Obama and his most senior advisors know who is being seriously considered.

Meanwhile, legal experts have begun to assess the legacy of Justice Stevens.

Prof. Peter Shane of the Ohio State University law school told IPS, “The phrase you will see a million times in upcoming summaries of Justice Stevens' career is independent-minded. He is truly a calls-it-as-he-sees-it kind of judge, devoted as much as any judge can be to the nontendentious, dispassionate, principled development of the law.”

He continued, “The fact that he is now widely regarded as so liberal is chiefly a reflection of his fidelity to the primary trajectory of 20th Century constitutional development, which was, over time, more and more protective of individual rights, social inclusion, and the authority of the federal government to address all national problems.”

In recent years, Shane says, Stevens “has become an anguished truth-teller, pointing out both in Citizens United and in Parents Involved (the Seattle voluntary school desegregation case) the untethered radicalism of Roberts-Alito-Scalia-Thomas jurisprudence. What the Court needs now, in my judgment, is a justice with both the intellectual heft and personal disposition to weigh in effectively against the tide of right-wing jurisprudence. Justices Marshall and Brennan spring most obviously to mind as role models.”

Col. Morris D. Davis (US Air Force Ret.), former chief prosecutor of the Military Commission trials at Guantanamo Bay, Cuba, told IPS, “My concern as the Obama administration weighs a replacement is what the Court will lose when Justice Stevens departs. He alone brings three perspectives to the bench that will likely be lost: he's the lone military veteran, the lone Protestant, and the lone non-Ivy leaguer.”

He explained: “I suppose I'm biased as I share those three characteristics with Justice Stevens and I believe those are important perspectives that should be reflected on the Court for it to have the benefits of a range of experiences to draw upon in making decisions that impact us all. A Court composed entirely of Catholics and Jews, all with Ivy League educations, and none with a day of military service does not come close to mirroring the diversity of the nation.”

And Prof. Francis Boyle of the University of Illinois law school appears to have lost confidence that Obama can nominate anyone who will stop the Court’s drift to the right. He told IPS, “So far University of Chicago Constitutional Law Teacher President Barack Obama has failed and refused to deconstruct and dismantle [the Bush Administration’s] totalitarian handiwork. To the contrary, the Obama administration has defended and justified in court almost every hideous atrocity that the Bush Jr. administration perpetrated on international law, human rights, civil rights, civil liberties, the U.S. Constitution, and the Bill of Rights.”