“Many Injustices Have Been Legal”

by Lauren Williams

In 1896, a Supreme Court majority declared that as long as facilities were equal, then separation was not a violation of citizens’ constitutional rights. On Tuesday, January 7, 2013, I attended the launch of "No Separate Justice: A Post 9-11 Domestic Human Rights Campaign", the latest step in the campaign to end the perpetration of a different kind of injustice. This campaign, of which CAIR-NY is one of the co-sponsors, aims to raise awareness about human rights abuses in prisons and pre-trial prosecutorial excesses with the goal of ending the persecution of speech and opinions that were not criminalized prior to the 9/11 attacks. Family members of detainees told their stories, while lawyers provided the institutional context for the experiences we were hearing.  

The domestic federal justice system, as it is applied to American Muslims facing terror related charges is not separate but equal. Rather, it claims to be the same system, but Muslims are suffering the consequences of unequal treatment, manifested in persistent violations of their constitutional rights, overly punitive measures, and the denial of the basic American tenet that one is innocent until one is proven guilty. Yet today’s situation and the events of our history should be considered in parallel,according to what was noted by the introductory speaker, Professor Jeanne Theoharis, which is that “many injustices have been legal”.

Three critical themes were constant.

First, the broad definition of material support can be interpreted in such a way that the most innocuous acts, even without malicious intent, can result in long sentences. Take for example, the case of Fahad Hashmi, serving a 15 year prison sentence in the federal supermax ADX prison after having an acquaintance stay with him for a couple of weeks. So where then, is the intent?

The second theme that emerged was that the Muslim identity of these men was construed as their intent and proclivity towards terrorism. Federal law enforcement agents ignored their accomplishments and contributions to their community, but focused on their religious behavior as a justification for conviction, where thier behavior was replicate of other faiths as in praying, transalting,, translating religious documents, or engaging in political activism as an extension of a religious duty to help others. Two examples are Shifa Sadeqee, who was imprisoned at ADX on material support charges after being kidnapped in Bangladesh by federal agents and Tarek Mehanna, currently imprisoned in Terre Haute, Indiana.

The implications of these convictions on Muslim community life in the US is chilling. Should we avoid politically active people, end our religious discussions, retreat into ourselves? It is ironic, that in purporting to fight terrorism, the Homeland Security apparatus is creating condititions that are more conducive to one of our nation’s biggest threats- the lone wolf actor, cut off from the community, unable to hear refutations to his ideology because the mere discussion of it could imperil the passive listeners.

Finally, the FBI has used the terrorism threat in the US to erode Muslims’ constitutional liberties, with the implicit justification that Muslim prisoners must be treated extraordinarily for no other plausible reason than that they are Muslim. Observers such as Andrew Rosenthal at The New York Times have pointed out the discrepancies between federal treatment of non-Muslims as compard to that of Muslims. The confession that sent Ahmed Abu Ali to jail for a life sentence was extracted as a result of torture in a Saudi prison. He was not informed of his charges upon his detention, nor was his family. Yet, his story is not unique. All of the family members present described harrowing scenarios, in which their siblings were imprisoned without knowing the charges against them. They were denied repeated requests for access to legal representation, but when finally given access to a lawyer, the effectiveness of that lawyer was cut off by Special Administrative Measures (SAMs).

To put this into context, the lawyers of serial murderers and rapists can talk about their cases, and their clients can receive visits from family members at any time. These freedoms were withdrawn for detainees that were, according to the US government, guilty only of planning to commit harm or of talking about it. Not even lawyers, such as Pardiss Kabriaei, counsel to Fahad, as well as to prisoners at Guantanamo, can consult their peers or experts to receive help with the case. They cannot adequately defend their client when privileged conversations are made available to the prosecution. Solitary confinement, used in most prisons for disruptive inmates or threats to the rest of the inmate population, has been used on men who have not shown violent tendencies, and were even placed in such conditions prior to their trial and conviction.  

There are those who will say that we are facing an exceptional time, and that these measures are reflective of our zeitgeist. The Bill of Rights was written by men who had fought and lived during the Revolutionary War, when their neighbors were providing material support to the British. The founders still believed in the rights to due process, to petition the government for a “redress of grievances”, to be secure against unreasonable searches and seizures, to a speedy and public trial in the jurisdiction where the crime has been committed, and the right of the citizen to be free from excessive bail or “cruel and unusual punishments”. These rights were enshrined in the Bill of Rights, which is should be just as binding upon the government now, as they were after their ratification in 1791.

When we hear media coverage and news reports, the first instinct is to rationalize it away, to push the incident aside and call it an anomaly. For the family members that traveled in the cold to tell their stories last night, it has defined their lives, in some cases, for almost a decade. It was difficult to reconcile the montage of childhood pictures and recent artwork with the legal nightmare their lives became. The “No Separate Justice” campaign will be holding monthly campaign vigils in front of the Metropolitan Corrections Center, where many Muslim terror suspects have been imprisoned and mistreated, to make the reality of these families, an extended reality for all American citizens, and erase the veneer of acceptability and normality that shields these faciliites and policies from the widespread condemnation they deserve. The campaign will also be supplemented by additional articles published in a year-long series in the Nation, titled “America After 9/11”.

(Photos by Rabia Ahsin Tarar)

Lauren Williams is currently finishing her undergraduate studies at Harvard University with a double major in Government and Near Eastern Languages and Civilizations. She is currently volunteering this winter at CAIR-NY and is a member of the Harvard Islamic Society.