By William Fisher
In his most recent book, “With Liberty and Justice for Some,” Glenn Greenwald charges that the U.S. now has a two-tier justice system – one tier for ordinary defendants, another for those prominent enough to escape any form of accountability for the crimes they fomented.
As if this wasn’t reason enough for national concern, there is yet another bias being played out in our Article III Courts. Legal experts see this bias as emanating from the prosecutorial anxiety associated with the acquittal of a defendant in a terror-related trial.
The widely-popular writer for Salon.com says he expected a good deal of the fear triggered by the 9/11 attacks to have receded; instead, he says, it has grown more intense and irrational and more widely used than ever to obliterate some of the most fundamental values of constitutional law for defendants.
He is far from alone. A virtual posse of constitutional authorities have likewise concluded that we Americans have been terrified into shooting ourselves in the feet by dispensing with the very qualities that make us special.
Scott Horton, a well-respected lawyer who writes for Harper’s Online, says, “Especially after 9/11, prosecutors in what they assert are national-security cases have gained a decisive tactical advantage in court proceedings that makes a mockery of the pretense of a level playing field between prosecutors and defense counsel.”
He adds, “Prosecutors routinely flout their duties to disclose evidence that would assist the defense, and routinely make representations about the gravity of alleged threats which cannot be sustained in the courtroom and which turn out in the end to have been made on the basis of neither any evidence nor any reasonable analysis. There has been a tendency towards grandstanding that has effectively manipulated courts... and has led a good number of federal judges feeling they were deceived. But when the trial judges try to rectify this overreach, they find that conservative federal appeals court judges reverse them, demanding that they give deference to prosecutorial mumbojumbo.”
Summing up, he told Prism, “The ability of prosecutors to improperly influence trial judges is a question that sits right on the frontier of judicial independence. It would be going too far to say that American judges as a class are no longer independent, but on the other hand, particularly in national security cases, the deck has tilted decisively and improperly in favor of the prosecution.”
During the public controversy over the use of our Article III civilian court system to try terror-related defendants, the government’s legal experts were widely quoted as believing that civilian courts would provide much fairer trials for these defendants, while ensuring their conviction and imprisonment. The civilian court system was thought to be a mature institution, while Guantanamo’s Military Commissions were untried and, as one military defense attorney was told, the Military Commissions were intended to convict people.
Comparing outcomes in the two venues, there doesn’t seem to be very much qualitative difference.
One of those most infuriated by our publicity-heavy attempts to ramp up our “national security” anxieties is Dr. Jeanne Theoharis, a professor of political science at Brooklyn College. Dr. Theoharis was in the forefront of a substantial community grassroots effort to mount a robust defense for Syed Hashmi, US-born of Pakistani nationality.
Hashmi was a student of Theoharis at Brooklyn College. On the eve of his federal trial in 2009, he pled guilty to helping Al Qaeda. Hashmi, 30, was sentenced to 15 years in prison on one count of providing material support to a terrorist organization. Had he not pled, he would have faced a 70-year sentence.
The former Brooklyn College student was arrested in London in 2006. The government accused him of passing “gear” to Al Qaeda; the gear consisted of a suitcase containing rain ponchos and heavy socks.
After his arrest, he was held in twenty-three-hour-a-day solitary confinement for nearly three years. The government’s case rested on the testimony and actions of an old acquaintance of Hashmi’s who turned government informant after his own arrest.
Theoharis points to a number of specific liberties that were denied to Hashmi and other pre-trial defendants in terror-related cases. She notes with modesty that these are simply off the top of her head and attributes their application to the radical political views Hashmi embraced before he was arrested. Yet last time Prism looked this up, expressing such views was the most basic of our First Amendment freedoms.
Theoharis charges that people like Fahad Hashmi and Tarek Mehanna were targeted in part for their political speech and association, which formed part of the government's case against them. Also, she adds, in many of these cases with FBI informants, what informants are sent into mosques to listen for, initially, are people voicing opinions and ideas critical of the United States.
Tarek Mehanna is an American pharmacist serving a 17-and-a-half year prison sentence after having been convicted of conspiring to help Al Qaeda.
Following the Mehanna sentencing, the ACLU released a statement saying that the suppression of unpopular ideas is contrary to American values, and that the verdict undermines the First Amendment.
Theoharis points to the right of a defendant to see and examine the evidence against him/her. But in many of these cases, much of the evidence is classified under CIPA, the Classified Information Act, passed by Congress in 1980. CIPA presents guidelines for the use of classified information by both government and defendant in a legal case. But defendants don't get to review it.
Theoharis also sees a defendant’s right to counsel diminished in terror-related cases. She says that one of the side effects of CIPA is that lawyers often go through a CIA-level screening to be able to review the evidence but they are not allowed to share what they saw with their client. According to Theoharis, this drives a wedge into the attorney client relationship.
Punishment before conviction is one of Theoharis’s most serious concerns. Like her former student, many terror suspects spend years in pre-trial solitary confinement. This degrades their health and ability to participate in their own defense, she says.
Due process: Theoharis says that while there are ostensibly ways to challenge these conditions of confinement and the application of SAMs, almost no one succeeds in using these administrative processes to actually get their SAMs removed or conditions altered.
Right to a speedy trial: Because much of the evidence is classified in many of these cases, people are impelled to waive their speedy trial rights under the Eighth Amendment to give their counsel adequate time to review the evidence. One defendant, Sami Al Arian, has been largely locked up, in one type of facility or another, for more than nine years.
Confidentiality of attorney-client communications. Lawyers representing people accused of terror-related offenses have been notified that their working sessions with their clients are no longer confidential. This ruling was made because prison authorities feared that defendants were using their attorneys to deliver messages to their colleagues. But the ruling struck a body blow at one of the bedrock principles of legal representation. One result is that lawyers are becoming reluctant to take on the defense of terror suspects.
Numerous legal experts have commented that ordinary citizens who have been charged but not tried would be unlikely to be punished for speaking out, regardless of how radically -- because speech is protected by the Constitution. But where terrorism is involved, prosecutors and judges find themselves conflating free speech with overt action.
How has this erosion of liberties taken place? Is it government by the rule of law or the law of the Wild West? Or is it some informal ad hoc arrangement between prosecutors and jailers?
Amy Fettig, a senior counsel with the ACLU’s Prison Project, has studied the SAMs regimen and is familiar with both its content and its application by Federal authorities.
She told Prism:
“Less than two months after the September 11 terrorist attacks on the United States, the Department of Justice issued an interim rule that drastically expanded the scope of the Bureau of Prisons’ (BOP) powers under the special administrative measures (SAMs) promulgated in the mid-1990’s after the first bombings of the World Trade Center and the Alfred P. Murrah Federal Building in Oklahoma. The regulation became effective immediately without the usual opportunity for prior public comment.
“The original SAMs promulgated during the Clinton Administration allowed the government to impose special administrative measures on certain federal inmates, including solitary confinement, interception of mail, and restriction on telephone calls and visitors.
“Before imposing a SAM, the rule required a specific determination by the Attorney General that the measure was ‘reasonably necessary’ in order to deter future acts of violence or terrorism. The rule also limited the extent of a SAM by placing a 120-day time limit, renewable on reapplication in 120-day increments.
“In contrast, the SAMs re-promulgated after 9/11 are an unprecedented frontal assault on the attorney-client privilege and the right to counsel guaranteed by the Constitution.
“The current SAMs allow the Attorney General unlimited and unreviewable discretion to strip any person in federal custody of the right to communicate confidentially with an attorney. In any case in which the Attorney General believes that there is ‘reasonable suspicion’ that a person in custody ‘may’ use communications with attorneys or their agents ‘to further or facilitate acts of terrorism,’ the Director of BOP ‘shall … provide appropriate procedures for the monitoring or review of communications between the inmate and attorneys or attorneys’ agents who are traditionally covered by the attorney-client privilege…’
“It is especially disturbing that the provisions for monitoring confidential attorney-client communications apply not only to convicted prisoners in the custody of the BOP, but to all persons in the custody of the Department of Justice, including pretrial detainees who have not been convicted of crime and are presumed innocent, as well as material witnesses and immigration detainees, who are not accused of any crime.
“In addition to the broad nullification of the attorney-client privilege allowed under these BOP regulations, SAMs no longer have a 120-day time limit and the revised regulation also permit monitoring and measures that include extreme forms of social isolation, such as housing in segregation and limitations on visitation and other contact with the outside world, for one-year periods with indefinite renewal of additional one-year intervals.
“The revised BOP SAMs rules are a direct assault on the attorney-client privilege that flies in the face of our Constitution and the underlying principles of our legal system. Under the SAMs, a defendant and his counsel are confronted not just by the fear that the government is monitoring communications, but by the certain knowledge that it is doing so. Such a defendant is told that none of his communications with his attorney will be confidential – that all such communications, whether conducted in person, by mail, or by telephone, are subject to government monitoring. Under such conditions, the right to counsel as consistently defined by our courts, is essentially undermined.
“Additionally, the SAMs regulations may subject individuals, including individuals who are seriously mentally ill, to indefinitely renewable, long-term solitary confinement without any evaluation of their mental state or existing mental illness. Federal courts have consistently held that such isolation violates the Constitution when inflicted on the seriously mentally ill. This callous disregard for Constitutional protections in regulations promulgated by the U.S. Department of Justice sends a disturbing signal that automatic deference to assertions of national security is dangerously trumping our rule of law.”
Many prison experts believe SAMs, including solitary confinement, are both cruel and ineffective, and needlessly increase the anger of prisoners toward their captors.
But the Director of the Bureau of Prisons, Charles E. Samuels Jr., doesn’t see it that way.
At the very first Congressional hearing ever held on the subject of segregation, or solitary confinement under the SAMs, he explained that “SAMs are special conditions of confinement or limitation of privileges that are reasonably necessary to prevent disclosure of national security information or prevent acts of violence and/or terrorism…SAMs restrict access to mail, media, telephone, and/or visitors, depending upon the specific risk factors.”
Testifying that “this restricted form of housing applies to only a small number of inmates within the Bureau,” Samuels told the Senators that “the use of restricted housing, however limited, remains a critical management tool that helps us maintain safety, security, and effective reentry programming for the vast majority of federal inmates housed in general population.”
But that is not the issue here. The issue here is whether the justice system should be using these administrative tools to put a gag on prisoners who have every right to speak out.
The precise number of prisoners living under SAMs is difficult to know – the Bureau of Prisons will not comment. The Director of the Bureau also testified at the Senate last week that he didn’t know the exact number of mentally ill inmates locked up in the US prison system as well as the number of those living under SAMs.
The number under SAMs is thought to be about 50, with 30 of those charged with terror-related crimes. But if the Director of the Bureau of Prisons has the slightest interest in making this problem less disgraceful, he needs to begin with an accurate count.
And he needs to disclose it to the public.
Senator Durbin and the members of the Judiciary Committee hope to attract support for a full-blown review of SAMs and other administrative coercions, leading to regulations that achieve more with a lot less pain.